But let’s not get too far ahead of ourselves. As VandeHei and Pincus note, Fitzgerald is playing his cards very close to his vest, and it’s possible there won’t be any indictments at all — or even a report, although considering the time and effort the special prosecutor has put into this investigation, I wouldn’t bet the ranch on that one.
Back to Main
October 2, 2005
WB: Conspiracy Theory
Comments
To prove a criminal conspiracy, the actions need not have been criminal, but conspirators must have had a criminal purpose.
It’s not clear to me from the story what that criminal purpose would have been.
What about the criminal purpose of justifying and starting an unprovoked war on a foreign country?
Maybe Fitzgerald has read something about Nuremberg standards or the UN charter or some other irrelevance. Then maybe he hasn´t.
Funny. Unindicted co-conspirator keeps popping into my head too!
Considering that bush was the enforcer for Bush I, there shouldn’t be any surprise that he’s directly involved in this mess.
The question is, will Fitzgerald have the proof to nail him with it? My hope is yes.
Posted by: fourlegsgood | Oct 2 2005 19:28 utc | 2
Criminal purpose = Intentionally outing a CIA operative (a crime under the Espionage and Identities Acts).
Conspirator = Anyone who overtly acts in furtherance of a criminal purpose (whether or not the overt act itself is a crime).
Hypothetical: Let’s say Cheney tells Libby to divulge Plame’s CIA status to a reporter. Cheney is a conspirator because his act of telling Libby to make the call had the purpose of furthering the criminal enterprise, even though simply telling Libby to do so may or may not be a criminal act in and of itself.
That is enough for a conspiracy charge against Cheney.
Posted by: Night Owl | Oct 2 2005 19:46 utc | 3
Sorry not a lawyer – aren’t Prez. & VP immune from prosecution for this, for some crazy reason? Wouldn’t they have to be unindicted co-conspirators?
Posted by: jj | Oct 2 2005 21:34 utc | 4
aren’t Prez. & VP immune from prosecution for this
This Oct. 2000 Office of Legal Counsel memo’s opinion is that a sitting President may NOT be indicted:
“Thus, the constitutional concern is not merely that any particular indictment and criminal prosecution of a sitting President would unduly impinge upon his ability to perform his public duties. A more general concern is that permitting such criminal process against a sitting President would affect the underlying dynamics of our governmental system in profound and necessarily unpredictable ways, by shifting an awesome power to unelected persons lacking an explicit constitutional role vis-a-vis the President. Given the potentially momentous political consequences for the Nation at stake, there is a fundamental, structural incompatibility between the ordinary application of the criminal process and the Office of the President.”
The memo also suggests, however, that a sitting Vice President MAY be indicted:
“The brief noted that the Vice President had only three constitutional functions: to replace the President in certain extraordinary circumstances; to make, in certain extraordinary circumstances, a written declaration of the President’s inability to discharge the powers and duties of his office; and to preside over the Senate and cast the deciding vote in the case of a tie in that body. Id. at 19. None of these “constitutional functions is substantially impaired by [the Vice President’s] liability to the criminal process.” Id.
So, according to this analysis, Cheney yes. Bush no.
Posted by: Night Owl | Oct 2 2005 21:56 utc | 5
Thanks Night Owl.
If I may expand thread slightly to encompass the entire Cabal…
Bastard, why didn’t you write this a long time ago…
Thus began what historians will regard as the single most corrupt decade in the long and colorful history of the House of Representatives. Come on, you say. How about all those years when congressmen accepted cash in the House chamber and then staggered onto the floor drunk? Yes, special interests have bought off members of Congress at least since Daniel Webster took his seat while on the payroll of a bank. And yes, Congress over the years has seen dozens of sex scandals and dozens of members brought low by financial improprieties. But never before has the leadership of the House been hijacked by a small band of extremists bent on building a ruthless shakedown machine, lining the pockets of their richest constituents and rolling back popular protections for ordinary people. These folks borrow like banana republics and spend like Tip O’Neill on speed. link
That’s Repug policy. How will dumping DeLay affect that? And Jackass party policy isn’t far from that either.
Posted by: jj | Oct 2 2005 22:09 utc | 6
Nightowl you said “Cheney yes, Bush no”…But does the Office of Legal Council have the last word on this question? There is a lot of crime going on, and I don’t like to be advised that based on some legal position taken some time ago by some official party designated by some…. has the power to establish law.
How about we see what Fitz can come up with before we conclude that our Dub is free and clear? There are always “other means” to handle this problem if the legal shit gets too cumbersome.
Posted by: rapt | Oct 2 2005 23:48 utc | 7
Recently, there have been many leaks from lawyers associated with Traitorgate. Usually, they have been Rove’s and Libby’s lawyers getting their spin on the story. Why not others?
Who could these lawyers be that provided the conspiracy theory to VandeHei and Pincus?
How would the Cheney Administration try to prevent Fitzgerald from issuing indictments or a report? I am interested what kind of actions they would take, since their cronies control all decision making and power in Washington.
Posted by: actol | Oct 2 2005 23:48 utc | 8
We could get Cheney and Bush the same way we got Nixon… Agnew was indicted… removed and Ford was named. It was Poppy I believe who wrote a letter to Nixon suggesting he resign in light of the charges against him. In fact I think he read or caused Nixon to read the letter before his cabinet. Nixon did resign, almost a year after Agnew’s indictment.
After removal from office, Dubya could be indicted.
There is rumor online of a putsch… with McCain being considered to replace Cheney, and then Dubya. (not that I give an credence to that rumor) Exactly why did Dubya stop off in Arizona the day Katrina made landfall? Does anyone know?
Posted by: crone | Oct 3 2005 0:29 utc | 9
Inside the secretive Bilderberg Group: BBC RARE Interview
How much influence do private networks of the rich and powerful have on government policies and international relations? One group, the Bilderberg, has often attracted speculation that it forms a shadowy global government. As part of the BBC’s Who Runs Your World? series, Bill Hayton tries to find out more.
Posted by: Uncle $cam | Oct 3 2005 0:56 utc | 10
How would the Cheney Administration try to prevent Fitzgerald from issuing indictments or a report?
I don’t think there’s anything they can do at this point. Fitz wrapped up his case months ago and was waiting on Miller to squeak so he could indict (or not, though my hunch is that he’ll have something to present).
Those in D.C. have no power over Fitzgerald — he has free rein to pursue whatever leads he wants in relation to this case, and he can even convene a new grand jury if he likes.
Someone named bkny wrote this over at firedoglake, and I thought it very telling:
i’ve read several comments from the wdc press bitching that nothing is leaking from fitzgerald and they are no more informed than we are. richard wolffe was on countdown this week and said this:
WOLFFE: Well, I think it’s really hard to pin a sort of political motive on this, because one of the characteristics about Fitzgerald, the prosecutor here, is that for his Republican affiliation, he’s actually been well out of the sort of political dynamics that normally dictate what goes on in Washington. So—and that’s been very frustrating for the administration, for anyone who’s trying to put pressure on him.
The other frustrating thing about him, from our point of view, is that, unlike Ken Starr, who was referenced by Pete Williams before, this guy doesn’t leak. He doesn’t tell us about his motives. His office isn’t feeding us little snippets of evidence. And so it’s very hard to read what’s going on.
…
NB for Wolffe: Fitzgerald is not a Republican, but is registered as unaffiliated. (Though perhaps Wolffe meant it only in relation to his having been appointed to the Chicago position by a Republican.) Also, regardless of the frustration felt by those who would like to “put pressure on him,” and the frustration of the press (“I’m leaving” is all he said to reporters upon departing the courthouse Friday), Fitzgerald is doing his job. He is supposed to be absolutely quiet about the case.
Those who went to school with him report that he’s apparently completely apolitical or nonpolitical. He never appeared interested in discussions about politicians or politics in general. He will go after whomever has committed a crime regardless of their power or political affiliation.
A legal journal somewhere in a profile of Fitzgerald also wrote that he possessed a “frighteningly brilliant” mind.
So we appear to have an “equal opportunity” prosecutor with a capacity to synthesize huge amounts of information. In that sense he really is the perfect prosecutor for this case or for any case of high-level criminal corruption.
Posted by: Trilby | Oct 3 2005 1:00 utc | 11
More on the Constitionality of indicting a sitting President:
It is important to note that the question of whether a sitting President may be criminally indicted is NOT settled law. The The Office of Legal Counsel memo cited above is simply a legal recommendation made by Assistant to the US Attorney General. It constitutes neither madatory nor persuasive authority in court of law.
The Constitution is silent, and because indictment of a sitting President is unprecedent in US History, no controlling case law exists. This is a case of first impression.
The OLC updates a 1973 OLC memo – the last time the office felt the need to address the possibility of a Presidential indictment – and finds that “the conclusion reached by the Department in 1973 still represents the best interpretation of the Constitution.” To wit: that a sitting President may not be indicted. The 1973 memo, not online at the DOJ site, is summarized and quoted extensively by the October 2000 memo.
Also cited is a 1973 brief by then Solicitor General Robert Bork in the matter of Proceedings of the Grand Jury Impaneled December 5, 1972: Application of Spiro T. Agnew, Vice President of the United States (D. Md. 1973) (No. 73-965) Here, according to the 2000 OLC memo, Bork argues that:
“considerations based upon the Constitution’s text, history, and rationale which indicate that all civil officers of the United States other than the President are amenable to the federal criminal process either before or after the conclusion of impeachment proceedings.”
Now, people may draw their own conclusions about the political expediency of various offices in the Executive Branch authoring legal opinions that protect the President, but that is not to say that the legal reasoning represented by the briefs and memos is any less valid. Indeed, there is a very strong case to be made that the President, but only the President , is above the law.
Yet all indictments are NOT created equal, and a blanket rule simply does not suffice. While the serious of certain crimes may not justify subjecting the Chief Executive Officer to the rigors and distractions of the criminal Justice system (say for allegations of perjury in a civil trial) during his term, there may indeed be situations where it becomes a national necessity to invoke the criminal justice apparatus against thy President.
Certainly allegations that a sitting President conspired to out one of his own spies must garner serious attention as test case here. The commission of such a heinous crime represents a clear, present and continuing danger to the National Security of the United States. It is historically appropriate to ask whether anyone would countenance Benedict Arnold continuing as Commander-in-Chief of Fort Ticonderoga after he willfully sabotaged his own intelligence network.
(The difference here, of course, is that there is no need engage the civilian criminal justice system in military matters. A court martial and summary execution of the guilty suffice for treasonous soldiers, and I am certainly NOT suggesting George W. Bush, no matter what his offenses, be subjected to a military tribunal.)
In the civilian realm, the Constitution provides for Impeachment as a process for removal. Yet it important to remember that the Constitution does not PRECLUDE a criminal indictment in addition to , or as a precursor to, removal. In fact, the rigors of the Justice system may be the only way to truly flush out the facts regarding a potentially grave treat to the Republic such that impeachment becomes necessary. This is especially true where the President enjoys majorities in both legislative houses, and the opposition party is precluded from issuing subpeonas in furtherance of congresses’ own investigation. Also relevant is ongoing criminal investigation and indictment of the respective majority leaders, who themselves appear to have abdicated their sworn duties to uphold the laws of the United States.
Simply put, where the President himself is a clear and present danger to National Security, the justice system may be our last, best hope to rectify this untenable situation. To place the President above criminal scrutiny in such circumstances is a formula for disaster, and one that surely the Founding Father’s in their wisdom would not have countenanced.
The Law of the United States should be that No Man is above the Law – especially (not except) the President.
Posted by: Night Owl | Oct 3 2005 1:14 utc | 12
regardless of whether President Blinky can be indicted, we can still keep up the pressure via the impeachment movement which will certainly feed off any discussion about indictments.
AfterDowningStreet has a new campaign to get the pollsters to ask the impeachment questions.
Here’s one scenario that’s plausible – they indict Cheney & he’s forced to step aside. Then someone steps up w/info. to blackmail BoyBush to step down. Wash D.C. politics run on blackmail. There’s so much out there on the Boy, it won’t be hard. Enquirer could be brought on line to interview his boyfriends @Yale, there’s a Helluva lot of people who have info. that’ll lead to Treason Trials for 911…You serve power, or are pushed aside….
If you read John Loftus, who has the best info. on Bush family history – at least at time of 1st Coup – he said that DaddyBush forced Nixon’s resignation by telling him he had to to ‘cuz Repug Nazi skeletons were about to come tumbling out of the closet. He resigned that day, or the next. Goldwater was cover story.
From our point of view, however, we’re in seriously Deep Shit no matter what. They Have Destroyed the Republic – in every possible way. My take is that Elite wants them out in part ‘cuz they don’t have credibilty to impose the Draconian policies they want imposed: for starters, I expect a Draft/National Service to accompany massive slashing of any remaining social policies & huge new taxes on those w/Zero responsibility for the deficits – prob. gas taxes. Elites want sharp changes, easier to implement if you can accompany it w/Fresh Start Bullshit.
Maybe they let BoyFailure stay, but I doubt it – anyway, he’s falling apart & wants to run, as he always has…Bankrupt, Ruin, Run…that’s wittle georgie…anyway as his utter failure as Pres. surrounds him, he’s a serious suicide risk if not allowed to run to mommy & daddy…Question is to do they go for placeholder Oatmeal Man Ford/Hastert or McCain so he has leg up for next election. I’d bet on the latter, given the magnitude of their power…
Posted by: jj | Oct 3 2005 2:33 utc | 14
jj – step aside? Man I want Cheney to FRYYYY. Then we can deal at leisure with puppy Dub.
Posted by: rapt | Oct 3 2005 2:49 utc | 15
Re Lukery’s post to get pollsters to ask impeachment questions – Karen Kwiatkowski’s most recent column has some insight into how pervasive that sentiment is:
The realist foreign policy events in Washington, local political movements around the country opposing the ongoing American occupation of Iraq, and Jon Stewart’s immense popularity among the under-40 crowd America are all important.
They do their part to help us, as a people, come to grips with the lies repeatedly spoken by our dear leaders. They shed light on the American tax-and-debt–funded exploration of the farthest frontiers of greed. They articulate the national shame that we are beginning to feel about the tyrannous acts we have committed at home and abroad in the name of “freedom” and “democracy.”
The power of popular domestic outrage at a behemoth state shouldn’t be underestimated.
….
In my all-Republican county of Shenandoah, it is doubtful many of my neighbors drove the 90 minutes into DC this weekend to express antiwar sentiment. But at the local gas station, two local men were overheard this weekend discussing the most recent price hike. One said, shaking his head, “That damn George Bush.” The other local man nodded with “He has to go.” It’s Happening Now
Her county is not only Repug, but prob. heavily military, CIA & military connected guys…
Or to put it in English, when you’ve shredded the Constitution, implemented a global policy of unprovoked nuclear war against anyone anywhere anytime, support torture around the globe approved openly by Sec. Def & Attorney General, staged 2 Coup d’etats to seize power in America, failed to defend our country against an attack you were told was coming, broken the Army, National Guard, Reserves & CIA, Bankrupted the Treasury, strummed the guitar while a city drowned, and that’s just the beginning… just who is left to support them – other than illiterate Fundie Fascist Wackos like John Roberts. If these guys can’t be thrown out,…
These guys should be hanging from the Washington Monument…for any one of those crimes.
Far fucking out – Andy Rooney is on…Finally…he’s stating the obvious – war in Iraq should be paid for by cutting the budget of the War Dept. He notes there is one officer for every 5 enlisted people & the endless damn weapon systems. Then plays snippet of Ike’s farewell speech, written by Malcolm Moose, – That snippet. Then Rooney came back on & said “He’s right. That’s just what’s happened.” At last…
Posted by: jj | Oct 3 2005 2:59 utc | 16
Gee Rapt, I’m flexible. Absolutely though no deal that they get to step aside in exchange for no jail time. You no wanna FRYYY, then to AbuG w/you.
i keep thinking, in light of pup dub being a puppet that it would be apropos/poetically appropriate for judge to sentence them to be strung up atop the Wash. Monument – each at opposite end of single long beam – like puppets on a string – ‘cept this string is around their necks – after AbuG/Gitmo time of course – w/No Red Cross Visits. We’ll pass around the hat on the net to raise buckolas to send over Lynndie England to take care of ’em, camera in hand..Her films will be entitled “Healing A Nation”. Perhaps Mike Moore, or Robt. Greenwald would go over to give her a few pointers w/the camera!!
This Treason is Too Massive. Forget Impeachment. We need to just wholesale Repeal Bu$hCo Admin. One stroke of the pen & every law they passed has to be just wiped off the books. If we got that, maybe we could agree to the judge showing some leniency & just let the Traitors retire w/Zero Pension & 40 felonies including Treason & High Crimes & Misdemeanors on their Permanent Unsealed Record. (But only if Prez. Cheney fesses to his role in Wellstone’s death and rigging of Ga. Senatorial elections that tog. gave Repugs the Senate Majority.)
I seem to be on a roll here…oh yes, and w/Repeal comes removal from office of Every Judge these Fundie Fascists have appointed.
What have I missed…lots I’m sure. (I never thought i’d live to see an Administration such as this. I thought Nixon was as bad as it could get – and he’s a saint next to these Traitors.)
Posted by: jj | Oct 3 2005 3:15 utc | 17
jj – thnx for the Karen Kwiatkowski link. i hadnt read that. you are right that impeachment should only be the beginning – but we are just trying to get the ball rolling. once the media starts talking about impeachment, then the other conversations will become more acceptable. those conversations shuold have begun 3 years ago, but they didnt, and they still arent happening now – so the ads campaign is just a little nudge. go over there and tell them what impeachment questions the public should be asked.
jj – thnx for the Karen Kwiatkowski link. i hadnt read that. you are right that impeachment should only be the beginning – but we are just trying to get the ball rolling. once the media starts talking about impeachment, then the other conversations will become more acceptable. those conversations shuold have begun 3 years ago, but they didnt, and they still arent happening now – so the ads campaign is just a little nudge. go over there and tell them what impeachment questions the public should be asked.
Lukery, I know. It’s just so painful, that Everyone just sat around looking the other way while this debacle unfolded right before our eyes. Why the hell is it too much to ask that American live w/in it’s traditions as a Republic & not be bankrupted by those in power? Even if we Repeal this Admin. we can never put Iraq back together again, or easily replenish the Treasury & look at that damn Christo-fascist running the Courts…he was part of the team that put these Traitors in power.
Seriously, I hope that bloggers mount a push to keep them from appointing anyone else to the Court – unless they’re on Ruth Bader Ginsburg’s list. We can’t let them have another appointment on their way out the door. We have far too much of their treachery to live w/forever as it is.
Posted by: jj | Oct 3 2005 4:34 utc | 20
It was Poppy I believe who wrote a letter to Nixon suggesting he resign in light of the charges against him. In fact I think he read or caused Nixon to read the letter before his cabinet. Nixon did resign, almost a year after Agnew’s indictment.
I don’t think Poppy did that. Perhaps you’re confusing Bush the Elder with Sen. Barry “I Wouldn’t Trust Nixon From Here To That Phone” Goldwater? 😉
Oh the foes will rise
With the sleep still in their eyes
And they’ll jerk from their beds and think they’re dreamin’.
But they’ll pinch themselves and squeal
And know that it’s for real,
The hour when the ship comes in.
Then they’ll raise their hands,
Sayin’ we’ll meet all your demands,
But we’ll shout from the bow your days are numbered.
And like Pharaoh’s tribe,
They’ll be drownded in the tide,
And like Goliath, they’ll be conquered.
Posted by: annie | Oct 3 2005 6:15 utc | 23
I was struck by this comment in a briefing Friday by Stratfor. After reviewing all the failed and near-failed Presidents, and the reasons for both their failure and their survival, Friedman concludes that in order to survive Bush absolutely has to hold only that 40% figure – his core base. If they crack, he is gone.
“The next few weeks, in our view, could be decisive in determining whether the United States is going to go through one of those crises of confidence it has experienced in the past. Those spasms have created opportunities for international opponents of the United States to take advantage of the paralysis — and that, when it occurs, is a geopolitical, not just a political, problem.”
My impression of the report was that there is a potential tipping point in which if the Presidency is judged to be unsalvageable, and so at risk of becoming ineffective geopolitically, the most powerful elements of the base will withdraw their support and look for immediate regime change.
Fits the resignation scenario. I’d be drinkin’ too.
Posted by: PeeDee | Oct 3 2005 6:58 utc | 24
Interesting PeeDee. I don’t foresee a long drawn out battle over this – neither the econ., nor Mess ‘o’ Potamia could handle it. A quick shuffle prob. in the cards. If Cheney indicted, prob., put in McCain; maybe Chimpy told he can stay if he’s a good boy & does what McCain tells him; else, he’s off to Crawford. Other scenarios possible…but end should be quick. Cheney has “health problems” as face-saving way out. Chimpy tossed when press ceases covering for him…Live Press Conference where they refuse to ask the questions they’ve submitted ahead of time…he’s gone!!
Posted by: jj | Oct 3 2005 7:55 utc | 25
How would Bush react if he were indicted?
…reflections on “raw power”, discussed in the previous post, what would happen if a sadistic, learning-disabled, dry drunk son of a sadistic mother with his finger on the button were indicted? A psychoanalyist speaks:
Posted by: Uncle $cam | Oct 3 2005 11:33 utc | 26
The Constitution is silent, and because indictment of a sitting President is unprecedent in US History, no controlling case law exists.
I think Fitzgerald has balls, but I don’t think they’re THAT big.
Posted by: Billmon | Oct 3 2005 14:13 utc | 27
I think Fitzgerald has balls, but I don’t think they’re THAT big.
Oh I think they are. But I don’t think he’ll end up proving it.
Tactically, it doesn’t make sense to indict Bush. There are too many thorny constitutional issues that would just cloud his case against the other co-conspirators.
Better instead to indict EVERYONE ELSE and then let Bush twist. This way there are no constitutional impediments to obtaining convictions, and Bush ends up essentially isolated. What’s more, Fitz can still use the THREAT of indictment against Bush to help ensure that George doesn’t try any sneaky end runs around the process.
Fitz won’t indict Bush – at least in the near future. But that’s not to say the OLC is right that he can’t, nor that he won’t because of insufficient radial circumference.
Posted by: Night Owl | Oct 3 2005 15:49 utc | 28
It’s not clear to me from the story what that criminal purpose would have been.
I think we should not forget that oldie but goodie Obstruction of Justice — the conspiracy may have been after the fact of the leak, and Fitz may have had some questions for Judy about conversations AFTER Novak published. As in, “Ummm, Judy, as I recall it I never really told you what Joe Wilson’s wife did at the CIA — at least, that’s how I recall it — is that how you recall it too? And, ummm, have you talked to anyone else about this?”
It’s interesting. The one thing that Bushco seems genuinely afraid of these days is obstruction. How else to explain the number of investigations of Gooper overlords that have been allowed to proceed? Honestly I can’t think of any. Of course, after removing the acting US Attorney in Guam to protect Abramoff they would be well advised to avoid other actions that look like obstruction.
Remember too that Fitzgerald was burned by a leak in a for-real Al Qaeda fundraising investigation that may have come from the WH (and it being a small world after all involved Judy Miller to boot) — the targets were tipped off through the press and Fitzgerald’s search yielded suspiciously little evidence. One might view that little episode as obstruction as well. Especially if it were one’s own investigation. Payback’s a bitch.
Posted by: 4-fingers | Oct 3 2005 17:47 utc | 29