Saturday :: Jun 5, 2004

What Goes Around, Comes Around


by pessimist

George Warmonger Bush is, in the immortal word of the late Mike Royko, in deep horsh (Think bullsh, only emanating from an equine).

His consulting a private attorney has generated a great deal of commentary about his reasons for doing so. About all Bush has had to say is:

"This is a criminal matter. It's a serious matter." (LA Times)

John Dean knows something about being in an Administration (quag)mired in the Deep Defication, and he makes some interesting points.

The Serious Implications Of President Bush's Hiring A Personal Outside Counsel For The Valerie Plame Investigation

The Valerie Plame Grand Jury Investigation

The Plame investigation took a quantum leap in December 2003, when Attorney General John Ashcroft recused himself. Ashcroft's deputy appointed a special counsel, who has powers and authority tantamount to those of the attorney general himself. That means, in practice, that Special Counsel Patrick J. Fitzgerald, the United States Attorney from Chicago, does not report to the Justice Department regarding his investigation. (In this sense, Fitzgerald's position is similar to that of an Independent Counsel under the now-defunct independent counsel statute.)


Those familiar with Fitzgerald's inquiry tell me that the investigative team of attorneys is principally from his office in Chicago, and that they do not really know their way around the workings of Washington. This has resulted in an investigation that is being handled Chicago-style - not D.C.-style. That's significant because in Washington, there is more of a courtesy and protocol toward power than exists in the Windy City.

The Fitzgerald investigation has not made friends with the Washington press corps, many of whom are being subpoenaed to testify before the grand jury. Those journalists with whom I have spoken say they are not willing appeared before any grand jury to reveal their sources. So this issue is headed toward a showdown. And under existing law, a journalist cannot refuse to provide information to a grand jury.

Nor, based on the few existing precedents, can a sitting president refuse to give testimony to a grand jury. And that appears to be the broad, underlying reason Bush is talking with Washington attorney James Sharp.

Reasons the Plame Grand Jury May Want Bush's Testimony

Why might the grand jury wish to hear Bush's testimony? Most of the possible answers are not favorable for Bush.

It seems the investigators are seeking to connect up with, and then speak with, persons who have links to and from the leaked information - and those persons, it seems, probably include the President.

(I should stress, however, that I do not have access to grand jury testimony, and that grand jury proceedings are secret. But the facts that are properly public do allow some inference and commentary about what likely is occurring in the grand jury.)

Undoubtedly, those from the White House have been asked if they spoke with the president about the leak. It appears that one or more of them may indeed have done so.

If so - and if the person revealed the leaker's identity to the President, or if the President decided he preferred not to know the leaker's identity. -- then this fact could conflict with Bush's remarkably broad public statements on the issue. He has said that he did not know of "anybody in [his] administration who leaked classified information." He has also said that he wanted "to know the truth" about this leak.

If Bush is called before the grand jury, it is likely because Fitzgerald believes that he knows much more about this leak than he has stated publicly.

Perhaps Bush may have knowledge not only of the leaker, but also of efforts to make this issue go away - if indeed there have been any. It is remarkably easy to obstruct justice, and this matter has been under various phases of an investigation by the Justice Department since it was referred by the CIA last summer.

It seems very possible the leaker - or leakers, for two government sources were initially cited by columnist Robert Novak -- may have panicked, covered up his (or their) illegality, and in doing so, committed further crimes. If so, did the President hear of it? Was he willfully blind? Was he himself the victim of a cover-up by underlings?

The grand jury may be interested in any or all of these possibilities.

What Goes Around Comes Around - And Payback's A Bitch!

Bush Needs An Outside Attorney To Maintain Attorney-Client Privilege

Readers may wonder, why is Bush going to an outside counsel, when numerous government attorneys are available to him - for instance, in the White House Counsel's Office?

The answer is that the President has likely been told it would be risky to talk to his White House lawyers, particularly if he knows more than he claims publicly.

Ironically, it was the fair-haired Republican stalwart Independent Counsel Kenneth Starr who decimated the attorney-client privilege for government lawyers and their clients - which, to paraphrase the authority Wigmore, applies when legal advice of any kind is sought by a client from a professional legal adviser, where the advice is sought in confidence.

Starr tried to thwart that tradition in two different cases, before two federal appeals courts. There, he contended that there should be no such privilege in criminal cases involving government lawyers.

In the first case, In re Grand Jury Subpoenas Duces Tecum, former First Lady Hillary Clinton had spoken with her private counsel in the presence of White House counsel (who had made notes of the conversation). Starr wanted the notes. Hillary Clinton claimed the privilege. A divided U.S. Court of Appeals for the Eighth Circuit agreed with Starr. The court held that a grand jury was entitled to the information. It also held that government officials -- even when serving as attorneys -- had a special obligation to provide incriminating information in their possession.

In the second case, In re Lindsey, Deputy White House Counsel Bruce Lindsey refused to testify about his knowledge of President Clinton's relationship to Monica Lewinsky, based on attorney-client privilege. Starr sought to compel Lindsey's testimony, and he won again. This time, Starr persuaded the U.S. Court of Appeals for the District of Columbia Circuit to follow the Eighth Circuit. The court ruled that exposure of wrongdoing by government lawyers fostered democracy, as "openness in government has always been thought crucial to ensuring that the people remain in control of their government."

Based on these precedents, President Bush has almost certainly been told that the only way he can discuss his potential testimony with a lawyer is by hiring one outside the government.

What Might a Private Attorney Advise Bush to Do?

It is possible that Bush is consulting Sharp only out of an excess of caution - despite the fact that he knows nothing of the leak, or of any possible coverup of the leak. But that's not likely.

On this subject, I spoke with an experienced former federal prosecutor who works in Washington, specializing in white collar criminal defense (but who does not know Sharp). That attorney told me that he is baffled by Bush's move - unless Bush has knowledge of the leak.

"It would not seem that the President needs to consult personal counsel, thereby preserving the attorney-client privilege, if he has no knowledge about the leak," he told me.

What advice might Bush get from a private defense counsel? The lawyer I consulted opined that, "If he does have knowledge about the leak and does not plan to disclose it, the only good legal advice would be to take the Fifth, rather than lie. The political fallout is a separate issue."

I raised the issue of whether the President might be able to invoke executive privilege as to this information. But the attorney I consulted - who is well versed in this area of law -- opined that "Neither 'outing' Plame, nor covering for the perpetrators would seem to fall within the scope of any executive privilege that I am aware of."

That may not stop Bush from trying to invoke executive privilege, however - or at least from talking to his attorney about the option. As I have discussed in one of my prior columns, Vice President Dick Cheney has tried to avoid invoking it in implausible circumstances - in the case that is now before the U.S .Supreme Court. Rather he claims he is beyond the need for the privilege, and simply cannot be sued.

Suffice it to say that whatever the meaning of Bush's decision to talk with private counsel about the Valerie Plame leak, the matter has taken a more ominous turn with Bush's action. It has only become more portentous because now Dick Cheney has also hired a lawyer for himself, suggesting both men may have known more than they let on. Clearly, the investigation is heading toward a culmination of some sort. And it should be interesting.

Cheney's Attorney

The decision by Bush and Cheney to seek private legal counsel is a routine step for high-level officials when they become involved in legal issues that are unrelated to their official duties. A telephone call on Friday to Terrence O'Donnell, the vice president's private lawyer, was not returned.

This isn't the only legal trouble Cheney faces - The Democrats are pushing for a special counsel to investigate Cheney's ties to Halliburton and Lynndie England of Abu Ghraib fame wants Cheney to testify at her trial.

I wonder if the Republicans have a back up slate warming up in the bullpen?


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