Democratic Wings: Bush Attorney General Michael Mukasey dishonors his office, covers up for Dick Cheney

July 17, 2008

Bush Attorney General Michael Mukasey dishonors his office, covers up for Dick Cheney

Nixon Attorney General Elliot Richardson honored his oath of office - he resigned rather than help Nixon cover up a crime. From CNN:

...[Elliot Richardson] was best known for his actions in 1973, when, during the height of the investigation into the break-in at Democratic Party headquarters at the Watergate Hotel, he refused Nixon's orders to fire the special prosecutor in the case, Archibald Cox.
The Republican president was battling Cox over his attempts to subpoena tape recordings of White House discussions believed relevant to the investigation of the Watergate break-in and the suspected cover-up by the Republican president and his staff.

Nixon, who eventually was driven from office by the Watergate affair, contended the nine tapes being sought were privileged.

"The more I thought about it, the clearer it seemed to me that public confidence in the investigation would depend on its being independent not only in fact but in appearance," Richardson wrote in his 1996 book, "Reflections of a Radical Moderate."

Cox eventually was fired by Acting Attorney General Robert Bork, whose nomination for the Supreme Court years later would be denied.

Richardson remained a man who followed his instincts, rather than party lines, throughout his life...

Not so Bush Attorney General Michael Mukasey. From Dan Froomkin at the Washington Post:

Special prosecutor Patrick Fitzgerald's criminal investigation of the Plame leak stopped short of indicting Cheney. But Fitzgerald made it clear that he was hot on Cheney's trail until he was obstructed by a pack of lies from former vice presidential chief of staff I. Lewis "Scooter" Libby. In the closing arguments of the trial at which Libby was found guilty, Fitzgerald declared: "There is a cloud over the vice president. . . . And that cloud remains because this defendant obstructed justice." Michael Mukasey has President Bush's back.
Mukasey succeeded toady Alberto Gonzales as attorney general last fall. But the notion that he would restore independence to that post took a big hit yesterday when he refused to turn over to a House committee key documents related to the CIA leak investigation.

Mukasey may have a better reputation than Gonzales, but it turns out he is just as willing to use his power to protect the White House from embarrassing revelations.

The House Oversight and Government Reform Committee had subpoenaed Mukasey to turn over, among other documents, a report on Vice President Cheney's interview with FBI agents investigating the leak of covert CIA operative Valerie Plame's identity.

In a move that was mutually self-serving, Bush yesterday -- on Mukasey's urging -- made what may be his most audacious assertion yet of executive privilege.

Congress's legitimate oversight interests aside, common sense suggests Cheney waived executive privilege when he voluntarily agreed to speak to FBI agents. But Mukasey countered that with a novel argument: "I am concerned about the subpoena's impact on White House cooperation with future Justice Department criminal investigations," he wrote in his Tuesday letter to Bush, asking to be ordered not to comply with the subpoena.

Special prosecutor Patrick Fitzgerald's criminal investigation of the Plame leak stopped short of indicting Cheney. But Fitzgerald made it clear that he was hot on Cheney's trail until he was obstructed by a pack of lies from former vice presidential chief of staff I. Lewis "Scooter" Libby. In the closing arguments of the trial at which Libby was found guilty, Fitzgerald declared: "There is a cloud over the vice president. . . . And that cloud remains because this defendant obstructed justice."

Had Fitzgerald indicted Cheney, or had Cheney been called as a defense witness in the Libby trial -- as Libby's legal team initially indicated they would do -- Cheney's interview would have become public record. Instead, like so many other intriguing products of Fitzgerald's investigation, it remained out of public view.

Oversight Committee Chairman Henry Waxman tried to pick up Fitzgerald's trail. As I wrote in my column of Dec. 3, Waxman first got Fitzgerald to agree to turn over key documents from his investigation. When the White House intervened, Waxman challenged the newly installed attorney general to show some independence.

"I hope you will not accede to the White House objections," Waxman wrote in his initial letter to Mukasey. "During the Clinton Administration, your predecessor, Janet Reno, made an independent judgment and provided numerous FBI interview reports to the Committee, including reports of interviews with President Clinton, Vice President Gore, and three White House Chiefs of Staff. I have been informed that Attorney General Reno neither sought nor obtained White House consent before providing these interview records to the Committee. I believe the Justice Department should exercise the same independence in this case."

Mukasey eventually allowed committee investigators to read considerably redacted versions of the reports on FBI interviews with senior administration officials, including Libby and Rove -- but not Cheney or Bush.

Waxman dropped his request for Bush's FBI interview. But he repeated his request for Cheney's. And he noted that Fitzgerald, in a July 3 letter responding to a question from Waxman, acknowledged that "there were no 'agreements, conditions and understandings between the Office of Special Counselor the Federal Bureau of Investigation' and either the President or Vice President 'regarding the conduct and use of the interview or interviews.'"

Mukasey had given previous indications that he would not turn on the White House.

For instance, at his confirmation hearings in October, he refused even to acknowledge that waterboarding was torture, an indication that he had no interest in looking too closely into past conduct by the Bush administration. He ordered his prosecutors not to refer contempt of Congress charges against senior administration officials to a grand jury.

But this may have been his ultimate test...

Michael Isikoff and Mark Hosenball write for Newsweek: "The Bush administration today unveiled a set of novel and controversial legal arguments in refusing to disclose key details about Vice President Dick Cheney's role in the leak of CIA operative Valerie Plame's identity."

They note Mukasey's insistence that Cheney's interview report was covered by what he called "the law-enforcement component of executive privilege."

"'As far as I know, this is an utterly unprecedented executive-privilege claim,' said Peter Shane, an Ohio State University law professor who is an expert on executive privilege and separation-of-powers issues. 'I've never heard this claim before.'

"Normally, claims of executive privilege are invoked to protect the disclosure of the president's communications with his top advisers. But in this case, the White House invoked the claim to keep secret Cheney's responses to FBI agents (hardly what anybody would call his advisers), who were grilling him as part of the now-closed criminal investigation headed by Fitzgerald. . . .

"What makes the decision to withhold the Cheney interview all the more unusual was the fact that the White House had already agreed to permit congressional investigators to inspect the FBI 302 reports of other top White House aides in the Plame case, including Karl Rove.

"So what was different about Cheney?

"Mukasey argued that giving Congress a copy of the FBI 302 report on Cheney would 'significantly impair' the Justice Department's ability to investigate wrongdoing by future White House officials. Presidents and vice presidents would be reluctant to submit voluntarily to FBI interviews because there would be 'an unacceptable risk' that their accounts would eventually become public, he contended in a letter to Bush recommending that the president invoke the privilege."

But as Isikoff and Hosenball make clear, that argument is a stretch.

"'Creative is a good word to describe it,' said Mark Rozell, another executive-privilege expert who is a professor at George Mason University's School of Public Policy, about the attorney general's contention. 'This is really an argument to protect the White House's own political interests and save it from embarrassment.'

"As a practical matter, White House officials -- including presidents and vice presidents -- must cooperate with Justice Department criminal investigations involving their administrations, noted Michael Bromwich, a former federal prosecutor who investigated White House wrongdoing during the Iran-contra affair and later served as the Justice Department's inspector general. The alternative to submitting voluntarily to FBI interviews is simple: officials would invariably receive grand-jury subpoenas -- and pay a rather high political, if not legal cost -- if they refused to cooperate. 'In the real world, high-level White House officials don't have the choice of not submitting to FBI interviews,' Bromwich said." ...

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July 17, 2008