Pofarmer asks over on Tom Maguire’s JOM:

The Fitzgerald investigation has been handled as an ivestigation of the administration and not like a “leak” investigation from the get go. Ergo, we know who the leaker is, but there’s no charges.

Fitz is from Chicago, which is highly Democratic.

So, what I want to know.

Who reccommended Fitz at the beginning of the chain?

Is Fitz just a useful idiot, or is something a little more/less sinister involved.

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SOME BACKGROUND

On October 3, 2003, George W. Bush nominated James Comey, United States Attorney for the Southern District of New York, to the post of Deputy Attorney General. Comey was unanimously confirmed by the Senate on December 9, 2003.

New York Magazine profile of Comey.

George W. Bush chose one of the worst grandstanding prosecutors in the country, a Reinhold Niebuhr-quoting, statist liberal, who had recently sent Martha Stewart to prison “for lying” about a crime which was never proven to have occurred, to the Number 2 position in his Justice Department.

This unsound and unprincipled appointment would have the gravest consequences. The failure of the Bush Administration to safeguard the rights of Martha Stewart, and other victims of Comey’s over-reaching, opportunistic, and bullying prosecutions, would ultimately backfire on the administration itself.

It is known that by March 2004 Comey was quarreling with the White House over surveillance. Here is one leftwing account, describing the circumstances of one policy battle, and the application by Bush of an uncomplimentary nickname to Comey:

In March 2004, John Ashcroft was in the hospital with a serious pancreatic condition. At Justice, Comey, Ashcroft’s No. 2, was acting as attorney general…. (Jack) Goldsmith (head of the Justice Department Office of Legal Counsel) raised with Comey serious questions about the secret eavesdropping program, according to two sources familiar with the episode. He was joined by a former OLC lawyer, Patrick Philbin, who had become national-security aide to the deputy attorney general. Comey backed them up. The White House was told: no reauthorization.

The angry reaction bubbled up all the way to the Oval Office. President Bush, with his penchant for put-down nicknames, had begun referring to Comey as “Cuomey” or “Cuomo,” apparently after former New York governor Mario Cuomo, who was notorious for his Hamlet-like indecision over whether to seek the Democratic presidential nomination in the 1980s. A high-level delegation—White House Counsel Gonzales and chief of staff Andy Card—visited Ashcroft in the hospital to appeal Comey’s refusal. In pain and on medication, Ashcroft stood by his No. 2.

But, even before he was confirmed by the Senate, Mr. Comey had taken advantage of John Ashcroft’s remarkably scrupulous personal recusal to appoint as Special Council, Patrick Fitzgerald, U.S. Attorney for the Northern District of Illinois.

Fitzgerald would, of course, prove to be a prosecutor strongly reminiscent of Comey himself, preening for an admiring press, while lodging perjury charges against a trophy-class target based on contradictory witness accounts, having found no evidence to support the theory that any crime was ever committed in the first place.

Relations between Comey and the White House worsened after June 2004, when Comey (with Justice department associates Goldsmith and Philbin) held a not-for-attribution background press briefing to announce that the Justice Department was disavowing the August 2002 so-called “Torture memo” written by Assistant Attorney General Jay Bybee. Wrangling over new definitions of permissible forms of interrogation continued through December.

A leftwing view of conflicts between Justice Department liberals and the White House appeared in Newsweek.

In April 2005, James Comey announced that he would be resigning later that year. He was quickly hired as General Counsel and a Senior Vice President by Lockheed Martin.

Holy Mackerel! The Washington Post defends George W. Bush’s declassifying information in order to defend policy, and comes pretty darn close to calling Joe Wilson a liar. I certainly wish this one was a signed editorial; I’d like to keep an eye out for the author.

Rick Moran starts by commenting on the above piece, but turns to noting the absence of coverage by the Press in connection with L’Affaire Plame of the highly newsworthy story of the Pouting Spooks war on George W. Bush. Much of the MSM has for many months studiously failed to notice:

the knife sticking out of the back of the Bush Administration; a knife planted by a group of leakers — organized or not — at the CIA who, unelected though they were, took it upon themselves to first try and prevent the execution of United States policy they were sworn to carry out, and failing that, trying to destroy in the most blatantly partisan manner an Administration with which they had a policy disagreement…

..by failing to illuminate this story by placing all the revelations in the context of the continuing war by the CIA against the Bush Administration, an enormous disservice is done to the American people. Because in the end, in order to find the truth of the matter, you have to understand the motivating factors of both sides. And the way writers are approaching the story now, that just isn’t happening.

Newsbusters story. video

They not only let these actors vote; they let them drive!

Article II, Section 1. The executive power shall be vested in a President of the United States of America.
— Constitution of the United States .
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I’m not going to repeat the big news story of the day, except to note that documents released today, in a filing by the defense in the I. Lewis Libby case, indicate that Scooter Libby had the president’s permission to release to the press information contained in a certain previously classified National Intelligence Estimate.

The Left was jumping for joy today. The ebullient Andrew Sullivan ran the story under the headline, BUSH NAILED.

One so hates to spoil the little rascals’ fun, but the left’s joy, and fondly imagined hope for future legal havoc based on all of this, rests on a fundamental misunderstanding of the US Constitution.

There is no such thing as classified information which the President of the United States could potentially be prosecuted for publishing on the front page of the New York Times.

The president is the chief executive, the head of the entire Executive Branch. The Executive Branch of the US Government has no power to do anything, but by the will of the president. If any document or information is classified, it is classified by presidential authority extended down a chain of command.

The only purpose for information to be classified is to assist the president in defending the United States and in implementing his own policies. In a circumstance in which it were to the advantage of the president to declassify some document, or piece of information, in order to defend his policies in domestic political debate, it is completely within the competence of the president to classify or declassify either at will. And it would not be in the least surprising, if a president delegated the same authority on some occasions, at least, to the vice president, or even to the vice president’s chief of staff.

Clarice Feldman has a new article on American Thinker, in which she demonstrates a pattern of protecting the reputation of Patrick Fitzgerald by such representatives of the establishment media as the Los Angeles Times and the Washington Post.

Ms. Feldman also reviews the arguments in Lewis Libby’s Motion to Dismiss identifying the core argument:

The decision whether to continue the Special Counsel’s investigation long after the acts regarding the disclosure of Ms. Plame’s occupation were established required a careful balancing of the interests. On the one hand, there is a law enforcement interest in investigating potential false-statement and perjury offenses. On the other hand, there is a public interest in avoiding confrontations that Mr. Fitzgerald’s investigation and prosecution continue to entail. There is also a public interest in avoiding continued distraction of our nation’s highest officials well after it has become apparent that the alleged crime that was the intended focus of the investigation did not in fact occur. Those competing interests should have been weighed by properly appointed principal officers of the United States. Because the Special Counsel was given the power to operate without any supervision of direction in contravention of the Appointments Clause, that did not happen in this case.

On which basis, she concludes:

I think that Libby has made a persuasive hard-to-answer argument that the Prosecutor was improperly appointed and granted powers in a way that violates the Statute and the Constitution, and that the indictment should be dismissed.

Special Prosecutor Patrick’s Fitzgerald’s latest filing contains a paragraph referring to a “transcript of the conversation” between the Washington Post’s Bob Woodward, columnist Robert Novak (who started the whole thing), and an official whose name was redacted. Editor & Publisher infers that this may imply that Woodward taped the conversation, or (at the very least) that he made a very detailed set of notes.

Leftblogger emptywheel took that transcript, converted it to an MS WORD document, and went to work counting spaces in the redacted portion.

Using one inch margins and Times New Roman, I recreated the passages at paragraph 43 and paragraph 52 that name Woodward’s (and Rove’s) source. Richard Armitage fits at paragraph 53, and Armitage fits in both spaces at paragraph 43. Cheney, Bush, Hadley, Rice, Joseph, Bolton … none of those alternatives fit. The one other possibility I can think of (it is slightly shorter than Armitage, but with the non-justified pages, it’s hard to tell) is Fleischer. Update: I think Rumsfeld is an outside possibility, too. Note that the passage at 43:

Moreover, Libby has been given a transcript of the conversation between Woodward and [redacted] and Novak has published an account briefly describing the conversation with his first confidential source ([redacted]).

Which would still allow two different sources for Novak and Woodward.

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Meanwhile Tom Maguire (who is the lead specialist in L’Affair Plame coverage) suspects that Fitzgerald’s lengthy redaction of the overview of his investigation means he’s hiding something significant.

If Fitzgerald is seriously probing some sort of cover-up, that might explain the silence of Bob Novak. And there is surely *something* going on – on p. 2 Fitzgerald promises a detailed overview of the investigation on pages 2-12, all of which are redacted. [NOTE – well, there was something going on at one time – maybe this is water under the bridge now. Fitzgerald did say in a Miller-related filing that his investigation was substantially completed, except for the testimony of Cooper and Miller.]

So, is this all about the Karl Rove angle, with Matt Cooper and the missing Hadley email? Or is there more, and might that “more” explain Novak’s continued silence?

Special Prosecutor Patrick Fitzgerald argued on Friday that he is really trying a perjury case, and the question of Valerie Plame’s covert status does not matter, i.e., it doesn’t matter if any crime was ever committed in the first place.

All a prosecutor has to be able to do, in Fitzgerald’s proposed Amerika, is to demonstrate that he can contradict details of the sworn testimony of the minutiae of the activities and conversations two years back of a senior government official intensely occupied with the affairs of state, and he is entitled to a conviction.

Convictions for the crime of obstructing investigations have become a popular prosecutorial fallback in cases like this where it is found to be impossible to prove that anyone ever committed the initially alleged crime. Martha Stewart was successfully imprisoned in just such a fashion, essentially for the crime of protesting her innocence of insider trading. No insider trading was ever proven, but Martha went to jail anyway.

By a curious coincidence, Mr. Fitzgerald owes his appointment to Martha’s prosecutor, Mr. James Comey.

Clarice Feldman is superb as always, and delivers a thoroughly devastating critique of Fitzgerald’s case. A must read.

A comparison illustrates the fatal flaw. Fitzgerald could not convict Scooter Libby for lying about what he had for lunch a year ago, if the investigation in which he made that statement had no relationship to his lunch that day. For exactly the same reason, he cannot win a conviction of Libby for lying to prosecutors while they are in effect on a fishing expedition, rather than pursuing evidence of an actual crime…

The details are a bit complex, so the antique media have not lavished much attention on the flawed nature of the prosecution. For most of them, Dick Cheney’s former chief of staff is far from a sympathetic figure, and they relish his indictment as symbolic of The Larger Truth — the imagined corruption of the Bush administration…

..I think it apparent that it is Fitzgerald who tried to throw sand in our eyes.

I doubt that he will be able to pull off this trick a second time in Court. Simply, Fitzgerald could not find a violation of the only relevant law because the necessary predicates for its application did not exist. And, even assuming for the sake of argument that the factual assertions he made in the indictment of Libby are true, they could not have impeded his inquiry, for it was always about conduct manifestly not covered by any federal criminal statute.

How can someone impede the due process of justice when the inquiry itself is a make-believe one? That is the key question in the Libby case. For it is clear that there was only one statute available to deal with the Plame situation; the facts of the case never fit it; and it was an error to proceed with a full bore investigation and grand jury when the prosecution knew or—with prudent inquiry- should have known that.

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Meanwhile Byron York at National Review Online reports that Libby’s lawyers have delivered a potentially fatal brief challenging the constitutionality of Fitzgerald’s appointment.

Fitzgerald’s authority comes from a December 30, 2003 letter from Deputy Attorney General James Comey in which Comey — after the recusal of then-Attorney General John Ashcroft — “delegated to Mr. Fitzgerald all the authority of the Attorney General with respect to the Department’s investigation into the alleged unauthorized disclosure of a Central Intelligence Agency employee’s identity.” In that letter, Comey told Fitzgerald, “I direct you to exercise that authority as Special Counsel independent of the supervision or control of any officer of the Department.”

Libby’s motion to dismiss argues that that is a unique, and constitutionally unsupportable, grant of power:

Acting without any direction or supervision, Mr. Fitzgerald alone decides where the interests of the United States lie in an investigation that involves national security, the First Amendment, and important political questions. He alone decides which individuals to subject to investigation, what evidence will be obtained or not obtained, and whether or not continued investigation and prosecution are warranted. He is subject to no oversight and has no obligation to comply with Department of Justice policies and regulations that constrain the exercise of law enforcement powers in all other federal cases. Furthermore, he has unilateral authority to expand his jurisdiction and the power to say when, if ever, his office should be terminated. It was limitations on those powers that led the Supreme Court to uphold the independent counsel provisions of the Ethics in Government Act. It is the absence of such controls that violates the Appointments Clause in this case.

Motion of I. Lewis Libby to Dismiss.

The Washington Post today reported on an article by Paul R. Pillar in Foreign Affairs which criticizes the Bush Administration for “politicizing intelligence.”

Pillar’s basic contention is that the Bush Administration didn’t listen to the mandarins at the CIA. They cherry-picked analysis to support their own policy decisions, which were made independently of the opinions and preferences of far-better-qualified people like himself.

In Pillar’s view, the intelligence community has interests and responsibilities of its own, which need to be pursued without being in thrall to the whims of temporarily elected amateurs:

The intelligence community should be repositioned to reflect the fact that influence and relevance flow not just from face time in the Oval Office, but also from credibility with Congress and, most of all, with the American public. The community needs to remain in the executive branch but be given greater independence and a greater ability to communicate with those other constituencies (fettered only by security considerations, rather than by policy agendas). An appropriate model is the Federal Reserve, which is structured as a quasi-autonomous body overseen by a board of governors with long fixed terms.

In a slightly more polite way than the noisiest and most arrogant of the pouting spooks, Pillar is saying exactly the same thing. American foreign policy, decisions of peace and war, belong to an internal government elite, connected with and mirroring a national elite, not to temporarily elected parvenus with unconventional views on these matters, representing a bunch of yahoos from fly-over states.

At the very least, the intelligence community, if mean-spiritedly denied its own liberum veto, should really be entitled to cross the aisles and start vigorously criticizing and actively opposing any elected Administration’s policies, while retaining complete job security. A position in the US intelligence community ought to be rather like a tenured professorship at Harvard. And the collective body of that community should be, in relation to the US government, much like the Harvard faculty. When embarassed by the statements, policies, or behavior of a Bush, (shudder!) a Cheney, they ought to be able to circulate petitions advocating his removal, and vote on motions of censure.

Frankly, the more I read of this sort of arrogance, the more I feel like I’m revisiting some of the earlier sections of Milton’s Paradise Lost.

Murray Waas, at National Journal, is reporting that:

Vice President Dick Cheney’s former chief of staff, I. Lewis (Scooter) Libby, testified to a federal grand jury that he had been “authorized” by Cheney and other White House “superiors” in the summer of 2003 to disclose classified information to journalists to defend the Bush administration’s use of prewar intelligence in making the case to go to war with Iraq, according to attorneys familiar with the matter, and to court records…

Libby also indicated what he will offer as a broad defense during his upcoming criminal trial: that Vice President Cheney and other senior Bush administration officials had earlier encouraged and authorized him to share classified information with journalists to build public support for going to war. Later, after the war began in 2003, Cheney authorized Libby to release additional classified information, including details of the NIE, to defend the administration’s use of prewar intelligence in making the case for war.

Libby testified to the grand jury that he had been authorized to share parts of the NIE with journalists in the summer of 2003 as part of an effort to rebut charges then being made by former U.S. Ambassador Joseph Wilson that the Bush administration had misrepresented intelligence information to make a public case for war.

All this seems to go without saying.

L’Affaire Plame has been operating from the outset on the basis of a kind of bizarre hyper-legalism, in which senior officials of the Executive Branch of the government are being targeted for indictment, and prosecuted, on a strange theory that the principal functionaries of government, the ultimate users and proprietors of classified information, can be deemed to have injured or offended the government, i.e., themselves, by using classified information to inform the public.

But, of course, the Executive Branch is itself the actual owner of all US classified information, and the employer of every participant, so we are regarding the preposterous unfolding of a scenario in which subordinate members of the Executive (the CIA, the Department of Justice) are seeking to indict and/or convict their superiors (The Vice President’s Chief of Staff; and in the left’s happiest and wildest dreams, also the President’s Policy Chief of Staff, Karl Rove, and the Vice President himself).

Obviously the Executive Branch at its highest levels ought to be (absent a particular law) assumed to be entitled to use classified information in any manner it finds necessary or desirable in support of the policies of the Government, i.e., itself. At its most senior levels, the Executive branch can, in theory, classify or declassify at will.

So how can the Executive Branch be prosecuting the Executive Branch over its own classified information?

It is as if we find there were a dispute among the king’s servants in the royal castle over the proper arrangement of some table settings, and a coterie of disgruntled footmen had complained to the castle warden that the king’s chancellor’s seneschal was misusing the silver, and were trying to persuade him that the chancellor should be held responsible for this outrage as well, along with another principal crown minister, and all of them should be sacked and flung into the dungeon for their offense against the footmen.

The only possible rational basis for a possible crime would have to be the Intelligence Identities Act of 1982, which was enacted to protect genuinely covert intelligence officers, working overseas and consequently particularly vulnerable, from being endangered by having their identities disclosed by adversaries of the US Government. There has considerable public confusion concerning Mrs. Wilson’s employment status, but public information makes it clear enough that she has been working in Washington for more than the five years, stipulated in the Act.

In relation to the Intelligence Identities Protection Act, the special counsel refers to Plame as “a person whose identity the CIA was making specific efforts to conceal and who had carried out covert work overseas within the last 5 years”. (8/27/04 Aff. at 28 n.15.)

Mr. Fitzgerald’s unspecific reference to Mrs. Wilson’s “covert overseas work” is very probably merely a desperate and highly disingenuous attempt to obfuscate the inapplicability of the statute serving as the basis for his entire investigation by so defining Mrs. Wilson’s employment as ipso facto covert, and treating any sort of trip abroad on Counterproliferation issues for consultation, or even conferencing, however brief, as sufficient to meet the terms of the statute.

If there is no violation of the 1982 Act, there was never a crime in the first place, and the entire affair represents a Kafka-esque spectacle of out-of-control partisan elements of government run wild, of government devouring its own tail.

The Washington Post reports today that Lewis Libby’s defense team has taken the obvious step of trying to force the prosecution to disclose the factual circumstances of Valerie Plame’s employment:

Attorneys for Vice President Cheney’s former chief of staff urged a court yesterday to force a prosecutor to turn over CIA records indicating whether former CIA operative Valerie Plame’s employment was classified, saying the answer is not yet clear.

As we have previously discussed here and here, it seems unlikely, on the basis of what we know, that Valerie Plame really was employed as a covert operative in the sense refered to in the 1982 Intelligence Identities Protection Act.

Clarice Feldman predicts that members of the MSM who helped the Pouting Spooks play Gotcha! on conservative policy adversaries in the Bush Administration in L’Affaire Plame will soon be hauled into court via subpoenas by Scooter Libby’s defense team, and find themselves on the hot seat, where they will be forced to divulge independent knowledge of Valerie Plame’s occupation (Take that Nicholas Kristoff) and expose other information sources, or –like Judith Miller– face penalties for contempt.