When news broke that President Bush, not merely the Vice President or another second-tier authority, authorized former Cheney chief of staff Scooter Libby to leak classified intelligence to journalists to jusify (AFTER the fact) the administration's factually incorrect case for war in Iraq, most commentators jumped to the conclusion that such "declassification" is within the President's scope of power.
I question that legal analysis: the President didn't "declassify" those documents, he leaked them (in fact, official declassification efforts continued after that leak). If Jimmy Carter had secretly handed the Soviet ambassador targeting data for the U.S. nuclear arsenal, or Bill Clinton had been caught disclosing troop deployment plans to Somali warlords, they would have been impeached as traitors, not defended as having "de facto declassified" those documents.
But I've been focused on a different question, which I first raised on Thursday here and which was picked up by Bob Fertik, and later echoed by Joseph Cannon and Georgia10: when special prosecutor Patrick Fitzgerald interviewed Bush and Cheney in 2004, did he ask either or both of them whether Bush had authorized disclosure of classified intelligence? If so, did they tell him the truth? Because if they didn't, then one or both of them are guilty of obstruction of justice -- an impeachable offense if ever there was one. (Remember that Libby is being prosecuted for obstructing Fitzgerald's inquiry (h/t Bob for the link), and that the "twentieth hijacker", Zacarias Moussaoui, is facing the death penalty for misleading federal investigators about the 9-11 plot.)
In fact, if one of them misled Fitzgerald, and the other failed to correct Fitzgerald's misimpression, that silence alone may be criminal and should, whether it's criminal or not, be impeachable. Given how closely Cheney
Bush refused to be sworn or, IIRC, to allow a court reporter at his meeting with Fitzgerald. But perjury isn't an element of the crime of obstruction, so being under oath is irrelevant, and Fitzgerald -- who was accompanied by "several assistants" during his 70-minute interview with the President -- unquestionably has meticulous notes, which are more than sufficient and are what most obstruction prosecutions are based on.
Adding tinder to the fire is a tantalizing bit of info I haven't seen anyone mention yet in connection with the new disclosures: the misleading way the White House initially tried to "spin" this story back in February, when Libby's Nurenburg ("my bosses told me to") defense first surfaced and Cheney (in an interview on Fox News) tried to make himself (rather than Bush) the target of inquiry:
WASHINGTON - Vice President Dick Cheney says he has the power to declassify government secrets, raising the possibility that he authorized his former chief of staff to pass along sensitive prewar data on Iraq to reporters.
That revelation, together with the roughly simultaneous disclosure that Cheney had spearheaded a White House effort to discredit Joseph Wilson, raised much speculation that Cheney may have been the one who authorized Libby to leak the classified intel (and consequently focused attention away from Bush). But in light of the new revelation that Bush personally authorized the leak and that Cheney was merely the conduit, it now looks as if taking the heat off Bush -- by offering disinformation about his own authority in a strained non-sequitur to a question that didn't really ask for it -- was the real reason Cheney gave that interview in the first place. In other words, the disclosure last Thursday of Bush's role in leaking classified intelligence to reporters shows Cheney's February interview for what it was: a fairly clumsy attempt to distract reporters and investigators from looking too closely at Bush. It was, in short, a cover-up.
My question is: did Cheney take the same line in 2004 when he was questioned by Fitzgerald? According to the prescient Jason Leopold, writing back in February, there is reason to think he did:
Sources close to the investigation into the leak of covert CIA agent Valerie Plame Wilson have revealed this week that Attorney General Alberto Gonzales has not turned over emails to the special prosecutor's office that may incriminate Vice President Dick Cheney, his aides, and other White House officials who allegedly played an active role in unmasking Plame Wilson's identity to reporters. Moreover, these sources said that, in early 2004, Cheney was interviewed by federal prosecutors investigating the Plame Wilson leak and testified that neither he nor any of his senior aides were involved in unmasking her undercover CIA status to reporters and that no one in the vice president's office had attempted to discredit her husband, a vocal critic of the administration's pre-war Iraq intelligence.
If denying that there was an effort to discredit Wilson to reporters doesn't encompass a denial that Bush authorized the leaking of classified intelligence as part of that effort, it comes darned close. And I'd be surprised if Fitzgerald didn't actually ask the question itself -- if he didn't ask both the President and the Vice President whether Libby's grand jury testimony (that Bush told Cheney to instruct Libby to reveal classified intelligence to reporters) was true. I imagine a colloquy that can be summarized something like this:
Fitzgerald: Mr. Libby testified to the grand jury that the President authorized him, via the Vice President, to disclose components of the classified National Intelligence Estimate to reporters in an effort to discredit Mr. Wilson. Was that testimony true?
Cheney: There was no effort to discredit Mr. Wilson.
Bush: Whatever Dick said.
Any permutation of these facts that involves Cheney not being entirely forthcoming with Fitzgerald means that Cheney committed the impeachable offense -- literally, the high crime -- of obstruction of justice. And if Bush learned (from White House sources or from the special prosecutor's questions) either of Cheney's misdirection or of Fitzgerald's resultant misimpression, and did not correct the record in his later interview with Fitzgerald, then he committed an impeachable offense, too.
Two final questions remain to be answered:
(1) If Fitzgerald possesses evidence that the President and/or Vice President committed a crime, but does not intend to prosecute them (since the proper rememdy is not prosecution but impeachment), will he tell anyone what he knows? (Update 5:52 pm PT: I ask this in light of this statement from Fitzgerald's press conference announcing Libby's indictment: "We don't talk about people that are not charged with a crime in the indictment. I would say that about anyone in this room who has nothing to do with the offenses. We make no allegation that the vice president committed any criminal act. We make no allegation that any other people who provided or discussed with Mr. Libby committed any criminal act.")
(2) If Dick Cheney does take the fall for misleading Fitzgerald, or tries to moot (and mute) the inquiry by resigning "for health reasons", will anyone -- Fitzgerald, the press, the Democratic Congressional leadership -- keep working to ensure that Bush's malfeasance also comes to light, or will they settle for less than complete justice?
Update: A.L. on Unclaimed Territory points out that as of today, Bush is indeed trying to build a firewall between himself and Cheney, as predicted. But Fertik finds more evidence that Bush was fully in the loop. Question no. 2 immediately above is fully in play. Stay tuned.
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Prospect for obstruction of justice charges against Cheney, Bush