In working through FBI director Mueller's newly released chronology over at the Next Hurrah, Emptywheel has done her usual fine analysis, taking that sushi-knife-sharp mind of hers to the chronology and, as usual, finding a lot of answers each leading to more questions uncomfortable for the WH.

FWIW, and I digress, over at Kos there's a nice take on a different issue - the hyperclassification and Bushie's refusing to grant clearances to the investigators, thwarting the DoJ's own OPR investigation into whether the laws were broken.  Short conclusion:  Mueller's notes tell us the answer which the OPR investigation would have, and which was "yes, laws were broken".

Back to my topic.

Here's a couple issues I'll toss over to you:

First issue.

On 3/12, per the chronology and Comey's Senate testimony, The Unit tells Mueller to "do the right thing".  From the chronology:

Friday 3/12/04, 0945: The President called me into the side office off the Oval Office after we had concluded our morning briefing of him. [7 paragraphs redacted]

     EW's comment:  "Curiously, Mueller doesn't mention (at least in the unredacted section) that Comey met with Bush first. Nor does he suggest the meeting happened at Comey's insistence, as Comey claims."

Friday 3/12/04, 1045: Met with Comey and others at DOJ.

Comey's Senate testimony provides this description of what happened after the meeting with Bush:

"After those two sessions, we at his direction to do the right thing, to do what we believed DOJ was necessary to certify as to its legality, we set out to do that.

     EW's comment:  "So this meeting (which may have directly followed the meeting with Bush, given the timing) must have been DOJ's first stab at "doing the right thing."

Well, was it?

This follows by a day the threat of the top leadership of DoJ to quit, and by a day-and-a-half the infamous Gonzo-and-Card-go-to-meet-Ashcroft-in-the-hospital episode. This 3/12 meeting is Bushie's first appearance in the chronology.  EW aptly noted it's: "all Cheney, no Bush."

Here's the snip from EW's analysis:

Thursday 3/11/04, 1200: Meeting at Card's office with him at his request. [6 paragraphs are redacted]
     EW's comment:  "Note the timing of this meeting--1200. In the interim period [my note:  about 16 hours since the hospital episode], Card had demanded that Comey come to his office--he and Olson had gone at "about 11 at night" after the hospital meeting. It appears that Mueller was alone with Card, and that whatever transpired, Mueller had a lot to say about it. The meeting lasted 40 minutes. [my note:  followed immediately by]

Thursday 3/11/04, 1240: Stopped by J. Gonzales' office after meeting with Card.

     EW's comment:  "Clearly, this wasn't a substantive discussion--just one sentence description. Which suggests Card was the one really taking the lead on the 11th."

Thursday 3/11/04, 1315: Meeting with Comey, et al., at his office.

     EW's comment:  "No mention of who is included in "et al," which is particularly interesting since everyone at DOJ was considering resigning en masse. And this meeting would have occurred immediately after Mueller returned to DOJ from the White House--was everyone together all day, or did they pull the meeting together after Mueller returned? Also remember--sometime in this time period, Tom DeLay was briefed on the program."

I can imagine the tenor of the meeting they had on 3/11 when deciding to take that apparently unified position - a bunch of very serious men and women, sitting around a conference table or the desk in Mueller's office, working through the implications of courses of actions and personalities and arguing and fighting over what to do next.  Standing, pacing.  Maybe a little shouting.  Multi-dimensional Vulcan chess.  From my point of view, they could do from among the following choices:

(a) All quit.  

Upside:  major scandal and pulling and prodding by the press.  

Downside: that would leave the DoJ both

(I) without leadership and

(II) with top-level vacancies available for Bushie and Deadeye to fill with more loyal, pliable help who would violate the law and Constitution on command.  We all saw how that turns out;

(b) Go along with Program X as is.  

Upside:  no scandal, they keep their jobs (for now, anyway - we know how Deadeye and Addington love to retaliate and, in their cases, did, anyway), and everything remains hunky-dory.  

Downside:  that would both

(I) inculpate them in the illegalities ("knowingly", BTW),

(II) make them subject to future Deadeye blackmail, personally and professionally, for being in pari delictu, and

(III) unman the power of the FBI and DoJ, institutionally, against the Executive officers because they and their organizations would be in pari delictu;

© Demand changes to Program X to make it marginally more lawful.

Upside:  "stand up for the rule of law", stand up for institutional integrity, no scandal, no criminality - the overreach could be explained away as the fruit of over-zealous classifiers dealing with NSA, or just buried as "an NSA matter".  

Downside:  none really apparent to this author. It seems this is the alternative they may have settled on and gotten;

(d) Go public/to the press.

Upside:  scandal to hinder the WH and Deadeye and maybe end Program X.  

Downside:  scandal to hinder the WH and Deadeye, have to break classification laws to leak, probably wind up with egg on the FBI and DoJ face as the press turns the story around on them, retribution.  

     First, as the Wired note linked through TPMM points out, it would appear that the FBI was already "dirty", at least in the sense that it was getting something from Program X - be it leads without clear attribution of their legally-dubious parentage, or a full-knowledge pipeline to a subordinate without Mueller's having full knowledge (in other words, per Wired, maybe Mr. Fedarcyk was read into a compartment of whose existence Mueller was ignorant).  So, this could turn around and make a real mess of the FBI - sort of like the times when the agent controlling the rat-mobster, winds up being controlled by the rat-mobster.  

     Second, remember this is in the days when, as Cathie Martin (IIRC) testified during Scooter's trial, putting the VP on MTP was a sure-fire, reliable way of getting the OVP position on things out there.  There's no guarantee the press would run with the story, for any of the reasons the traditional press spikes stuff.  

     Moreover, memories are long.  It was just last week the FBI executed a classified search warrant against former DoJ att'y Tamm reportedly for leaking to Risen. I'm betting the leak came from higher, through him and Gonzo is now just getting around to getting back for the Risen story.  

But, the one which does not appear from the Muller notes or any discussion of them is this alternative:

(e) open a criminal investigation and take it to the grand jury.

Another dog that didn't bark.  Mueller, Comey, Goldsmith, et als. were and are seasoned cops and prosecutors.  I cannot see why they would not consider this option.  Comey was the guy who put Fitz in place - he, and the rest of the people in the room knew who were the honest prosecutors, and who were not.

IMHO, this is the kind of thing which would both make the members of the grand jury sit up and stay seriously awake, and likely be "billed" in five minutes or less.  Once it became clear to the jurors what was going on, and a good presentation could get even something as complicated as this across in a half an hour, there'd likely be gasps from someone in the jury.  Right before the mood in the room changed to one where a unanimous vote to bill it was inevitable.

So, the first question would be:  did they open a criminal investigation into Program X?  

And, the second:  did any of this go to the grand jury?

Let's look at the upside and downside of this option a little more closely:

Upside:  stand up for the rule of law, assert institutional power of DoJ and FBI and maintain their integrity, get out from under the Executive and before the Courts (Bush and, moreso, Deadeye, will hate this) and, in the end, Bush will back down.  And, remember, this is pre-2004 election;  they might have succeeded in saving the country as a whole, or at least years of trying to undo the damage this administration has done.

Bush would have backed down, and Deadeye would have found another way to further the surveillance society, maybe.  As we see in hindsight, (and as is noted in the Kos post linked above and here) the DoJ and FBI standing firm in demanding changes lest they resign en masse worked.  Bush backed down.  To recall something I think Lenin said in the context of spreading his revolution:  "Probe with a bayonet.  If you find steel, go elsewhere.  If you find mush, keep probing deeper."  When Bush and Deadeye find steel, they back off.  Bush is mush, when he is on shaky ground.  With Program X, he was on shaky ground and knew it.  

Downside:  

(I)  This is truly going nuclear.  

We saw how much time, effort and hot air was devoted to the defense of Scooter and attendant propaganda.  Can you simply imagine how much coverage would have been devoted to "Deadeye gets a grand jury subpoena"?  Remember when Hillary had to go see the grand jury about the Rose Law Firm billing records appearing in the upstairs clutter at the WH?  I do.  The press tracked her every move from the White House to the Court House and back.  

"Criminalizing policy differences", or some such?  Try this:  how about an un-crippled Rove in an election year being able to argue through an as-yet un-disabused press that rogue elements in the FBI were against the Wah on Terra?  you wanna talk ugly?

(II) CIPA.  We saw how that impacted on the Scooter case - it could have made a real mess of things (as opposed to a partial mess).  Fitz had, what, two or three years from beginning his part of the investigation to time of trial to work through those issues?  Could he, or anyone, do that sort of analysis in a day?  Without all the facts available?  Remember, the OVP and WH were closely holding the full scope of Program X from everyone outside their little cabal - likely even Bushie was not fully read in on it.  The rub of the objections by Ashcroft and Comey was that they had not been fully read in (and couldn't bring in more expert personnel to help analyze) and then were asked to approve.  The close compartmentalization of Program X would have made a nightmare of any criminal case involving a FISA violation.  

Now, here's point for another post:  When you think about it, CIPA pretty well makes cases against high Executive officials charging them with criminal FISA violations pretty much un-prosecutable from inception.  Everything is so highly classified in the FISA realm, that the only way to both prosecute a criminal FISA case and abide by CIPA is if the same high Executive officials would waive off on the classification of information germane to their own crimes.  Not f'g likely, if you ask me.  

And, I'd bet Deadeye and Addington had thought that angle through, too.  It made the risk they were taking - committing crimes with Program X - palatable, particularly when weighed against the upside of keeping Program X running.  They might get caught, but they'd never be prosecuted because they knew the NSA (if only to protect its own institutional interests and technology) would step in to bollux the case up through CIPA.  

There's another argument against the travesty which was the bill that passed the other week, but that's a digression from the point here.  

(III)  Pre-emptive use of the pardon power.  

If Deadeye was, directly or indirectly, able to persuade Bushie to give Scooter a commutation to keep him quiet,  even though it meant he and Bush allowed themselves to be blackmailed by their former subordinate,  how much more likely would Bush have been to give them a free pass, if only to preserve his electability?  After all, it was Deadeye in the Ford WH, when Nixon got his pre-emptive pardon.  

This was pre-convention, so he could have replaced Deadeye - he's a man with a bad heart - on the ticket with Rudy Cue Ball and likely rode that move to re-election (and Preznit Rudy in 2008).

(IV) An intramural shadow war between the OVP, DoD (which "oversees" the NSA, though, to be fair, NSA is its own power center), and CIA on the one hand, and the DoJ and FBI on the other.  Eeesh.

In the end analysis, as I sit here three years after the fact, I have to believe that the serious people discussing serious topics with Mueller on 3/11/04 either didn't give extended thought to opening an investigation of the OVP cabal and Program X or, if they did, decided the game was not worth the candle.  At least it wasn't, then.

As the old saying goes:  "If you're going to strike the king, make sure you kill him."

Second issue:

Emptywheel writes:  

Below you can read what's left of Mueller's log, with my notes. The big takeaways are:

Mueller refers to a "program," singular. Which backs up what everyone has been saying: Gonzales is a lying sack. There was one program that was the subject of a DOJ revolt, not the parsing tidbits of programs Gonzales would like to pretend there were.

All Cheney, no Bush. With the exception of the famous meeting where Mueller met Bush directly, Bush was uninvolved, at least from Mueller's perspective. Cheney, on the other hand, attended all the group meetings (though Card was in charge of twisting Mueller's and Comey's arms). And the final meeting Mueller felt the need to record was one with Cheney. Is there any doubt, then, when Gonzales say "at the behest of the President," he really means, "Dick"?

Mueller almost seemed to be a go-between between those in DOJ preparing to resign and the White House, with Gonzales as the point of contact.

If you recall, I wrote a diary about impeaching Deadeye, "Priming the Deadeye Impeachment Pump"  and in it, I listed thirteen different categories of impeachable offenses into which his misdeeds could be placed.  Let's recall and put these snips from the earlier post together with the Muller chronology and EW's comments:

1.  Seditious conspiracy.

Let's look at the statute, 18 USC 2384:

If two or more persons in any State or Territory, or in any place subject to the jurisdiction of the United States, conspire to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof, they shall each be fined under this title or imprisoned not more than twenty years, or both.

  Now, the first point upon which any defendant to this charge in the context of the facts (such as we know them) here would try to hang the defense would be the alleged lack of force involved.  But, as any criminal defense attorney might tell you, were you to ask, the quantum of force needed to meet that element need not be more than the slightest touch.  In any event, in the political context of impeachment, they can dispense with that element.  And, were Muller et als to have initiated an investigation and put some people before the grand jury relative to this charge, opening an investigation and putting people before the grand jury does not require as a prerequisite that they have to have all the facts on a platter, first.

Moreover, the text of the statute seems, to my reading, to allow charging seditious conspiracy for what would ordinarily be called obstruction of justice, arguably where the purpose of the obstruction is to change the government of the United States:  "...or by force to prevent, hinder, or delay the execution of any law of the United States." One could make that argument as to obstructing the enforcement of FISA, but I'm a little dubious;  I'd need a little more.  I'm not there, yet.

3.  Violating the FISA.

That's what the Program X scandal is about - that it was all about violation of FISA.

2.  Conspiracy to violate the FISA.

I think it's pretty clear from the chronology that, once responsible law enforcement types were finally allowed to see Program X in toto - once Deadeye's and Addington's manipulation of classification and compartmentalization was dispensed with (sort of) - they found an ongoing conspiracy to violate FISA and who-knows-how-many other laws pertaining to surveillance, communications, "national security" and criminal procedure.  We can see from the cast of characters that the activity revolved around Deadeye, Addington, Card, and Gonzales.  I think there's a conspiracy there.

11.  Usurpation of power.

"...Everything else [Deadeye] has done, even when he has gotten the "approval" from the President for it, is not authorized by law.  The real structure of the present government has been an unaccountable Vice President, with his own office, staff and infrastructure specifically built to avoid checks and balances, running things, with a figurehead Preznit out front to dance and distract. ...

 ...

Muller's notes pretty much confirm this, to my eyes.  Anyone doubt it?