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Saturday, April 23, 2005

Voyage to the Bottom of This 

"No one wants to get to the bottom of this matter more than the president of the United States and he has said on more than one occasion that if anyone inside or outside the government has information to help get to the bottom of this, they should help."
-- Scotty McClellan, after President Bush's "interview" with
Patrick Fitzgrald, special prosecutor in the Plame case

That was, let's see . . . ten months ago!! -- yet Mr. Bush, alas, remains frustrated in his valiant quest to snuffle out the truth: despite his entreaties, no one inside or outside the White House has stepped forward to confess to the retaliatory ratting-out of former CIA operative Valerie Plame. Here's a new mystery the White House is approaching with a similar degree of industry, vigor and investigative zeal:
The U.S. Secret Service is investigating whether a Republican volunteer committed the crime of impersonating a federal agent while forcibly removing three people from one of President Bush's public Social Security events, according to people familiar with the probe.

The Secret Service this week sent agents to Denver to probe allegations by three area Democrats that they were ousted from Bush's March 21 event. The three did not stage any protest at the rally and were later told by the Secret Service they were removed because their vehicle displayed an anti-Bush bumper sticker.

White House spokesman Scott McClellan said the man who removed them was a GOP volunteer, but he refused to divulge his name or whether he works in Colorado or Washington. "If someone is coming to an event to disrupt it, they are going to be asked to leave," McClellan said [demonstrating that, in the Bush administration, prior restraint is just as fashionable as pre-emptive war -- S.] . . . .

A person familiar with the probe said the agents are trying to determine whether the man McClellan described as a volunteer was impersonating an agent, a federal crime that carries a maximum sentence of three years in prison.
The Secret Service probe was "reopened" after ejected Democrats Alex Young, Leslie Weise and Karen Bauer filed a FOIA request; the trio is reportedly contemplating a lawsuit against the mystery volunteer and -- more intriguingly -- "his trainers." Sen. Ken Salazar and Rep. Mark Udall, both Colorado Democrats, have helped keep the investigation alive by demanding to know whether the volunteer impersonated a federal agent. The Denver Post has a few additional details about this lone bad apple:
A spokesman for U.S. Rep. Bob Beauprez, whose office gave Young, Weise and Bauer tickets to the presidential visit, said the Secret Service had not contacted the congressman's staff.

Beauprez press secretary Jordan Stoick refused to supply the name of anyone from the White House who coordinated Bush's appearance in Colorado.

The White House has refused to name its Denver advance team . . . .

The earlier Secret Service investigation determined that the person who did this was a staffer with the "host committee." Local Republicans say the White House ran the event . . . .

But [attorney Dan] Recht says the new investigation allows the Secret Service not to tell his clients who their malefactor was or who trained him.

"They're saying that at this point they can't release the name because it's an ongoing investigation," said Recht, who is still deciding whether his clients will speak to investigators. "If the Secret Service opened another investigation to deny our Freedom of Information Act request, that just adds to the stonewalling."

It also keeps the White House fielding near-daily inquiries about dirty tricks that unfairly - and possibly illegally - destroy political dissent.
And what about the Plame investigation itself? As you recall, special prosecutor Fitzgerald told the court that his investigation had concluded some time ago. Reporters Judith Miller and Marc Cooper had been subpoenaed, and held in contempt of court for refusing to testify about their sources; they will go to jail shortly unless the Supreme Court agrees to review their case. Former White House counsel John Dean has some lively inside dirt at FindLaw:
The trial record accompanying the appeals by Miller and Cooper carried information -- a sealed record -- that has not been made public. It is an affidavit that was submitted by Special Counsel Fitzpatrick to Judge Hogan when Miller, Cooper, and other reporters (who have since cooperated with the investigation) sought to first block the subpoenas calling for them to appear before the grand jury.

In a November 10, 2004 ruling, Judge Hogan addressed this information: "In his ex parte affidavit, Special Counsel outlines in great detail the developments in this case and the investigation as a whole," he explained. "The ex parte affidavit establishes that the government's focus has shifted as it has acquired additional information during the course of the investigation. Special Counsel now needs to pursue different avenues in order to complete its investigation." (An ex parte affidavit is one to which the other side in the dispute is not privy.)

Judge Hogan then found, based on Fitzpatrick's information, that "the subpoenas were not issued in an attempt to harass the [reporters], but rather stem from legitimate needs due to an unanticipated shift in the grand jury's investigation." The Judge concluded that because the "subpoenas bear directly on the grand jury investigation and are of a limited time and scope," Fitzpatrick was entitled to this information . . . .

It is difficult to imagine that all of these federal judges would let Fitzpatrick haul highly visible news people into his grand jury, on a lark, without a good reason for doing so. Thus, it seems there must be a good reason that Fitzpatrick needs the testimony of Miller and Cooper in particular. That raises the question: Why are Miller and Cooper so vital to this case?
Interesting sidebar: Dean points out that 33 years ago, Justice Rehnquist sided with a 5-4 majority in Branzburg v. Hayes, which established that no reporter can refuse a grand jury relevant information. There was an obvious conflict of interest -- in the Nixon DoJ, Rehnquist had helped to prepare, and served as a spokesman for, the department's 1970 guidelines for subpoenaing reporters -- yet Rehnquist did not recuse himself. Says Dean: "It difficult to believe that this Chief Justice, so well-liked by his colleagues, will be given the farewell gift of the reopening of Branzburg - which represents a low point for him. And such human factors do influence Supreme Court justices in their decisionmaking."

UPDATE (via our revered colleague Avedon Carol): Veteran journalist Murray Waas has been keeping tabs on the Plame case at Whatever Already!, and here's his latest scoop:
Attorney General Alberto Gonzalez has sent a letter to the House Intelligence Committee denying a request by nine committee Democrats seeking information about the Valerie Plame case . . . .

"If existing legal authorities are insufficient to ensure successful prosecution of these kinds of breaches," nine Democrats on the House Intelligence committee, wrote Gonzalez on April 14, "the committee should be made aware of that fact immediately. The Congress and administration have a responsibility to ensure that our judiciary system has the tools necessary to ensure that those who violate oaths to protect classified information and the identity of federal undercover intelligence officers are brought to justice."

A senior congressional aide told me that it was possible, for example, that Fitzgerald might have identified the Bush administration official who had leaked Plame's identity as a clandestine CIA operative to columnist Robert Novak, but been stymied from pursuing a prosecution for any number of reasons.

A potential prosecution might require the disclosure of classified information, the congressional aide noted, prohibiting a prosecutor from bringing charges. In addition, under the Intelligence Identities Protection Act, it is a felony, punishable by up to 10 years in prison, for disclosing the identity of a clandestine U.S. intelligence official. But there are such significant hurdles under the statute to bringing criminal charges, the aide pointed out, that Fitzgerald might have uncovered the perpetrator, yet still feel that his hands are tied to do anything about it.

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