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FindLaw's Writ - Dean: The Importance of Scott McClellan's Testimony Before the House Judiciary Committee - Including Possible New Obstruction of Justice Charges for Scooter Libby and Karl Rove

The Importance of Scott McClellan's Testimony Before the House Judiciary Committee -- Including Possible New Obstruction of Justice Charges for Scooter Libby and Karl Rove

By JOHN W. DEAN
Friday, Jun. 13, 2008

Former Bush White House Press Secretary Scott McClellan has agreed to testify before the Judiciary Committee of the U.S. House of Representatives on June 20. He was invited, of course, because of his revelatory new book What Happened: Inside the Bush White House and Washington's Culture of Deception.

Florida congressman Robert Wexler, a member of the committee, has succinctly explained why he and many others expect McClellan’s appearance to be potentially highly significant: “The allegations made by McClellan that Karl Rove, Scooter Libby, and possibly even Vice President Dick Cheney, together conspired to obstruct justice by lying about their role in the Plame case relates directly to the core of US executive power and the Constitution. If true, the allegations made by McClellan could amount to an obstruction of justice charge for Scooter Libby and Karl Rove.”

If McClellan’s testimony suggests that Special Counsel Patrick Fitzgerald, for any reason, gave Karl Rove and Dick Cheney a pass when, in fact, there was a conspiracy – which is still ongoing – to obstruct justice, then these hearings could trigger the reopening of the case. But this is a pretty large “If.”

The Evidence Necessary to Reopen the Plame Investigation: Though Special Counsel Fitzgerald Cannot Talk About the Grand Jury, Witness McClellan Can Share What His Testimony Was

Patrick Fitzgerald conducted his investigation behind closed doors. Other than Fitzgerald and his staff, no one knows what they found or did not find, because they conducted the investigation through a federal grand jury. Rule 6(e) of the Federal Rules of Criminal Procedure has sealed this information in secrecy, and cut off any ability of Fitzgerald and his staff to talk about what occurred.

No one believes that Fitzgerald (and his team) were anything less than vigorous in investigating the effort to discredit former Ambassador Joe Wilson by revealing that his wife, Valerie Plame Wilson, was a CIA operative. Yet since no one knows what Fitzgerald learned, except those who cannot speak of what they know, it is not possible to determine whether he might have been outfoxed by the White House. As experienced a prosecutor as Fitzgerald is, he was playing in a very different league when investigating the Bush White House. These folks make Nixon’s White House look like Little Leaguers – and based on what is known about the Plame investigation, I have long suspected that Fitzgerald was playing out of his league. (See, for example, here and here.)

There is nothing under Rule 6(e) that prohibits Scott McClellan from discussing everything he told Fitzgerald and the grand jury. McClellan’s testimony can, in turn, create a wedge to peek inside the investigation.

The insights and information that McClellan might provide could lead to new pressure for witnesses like Rove and Libby to appear before the Congressional committee. It has never been clear to me why Libby was not previously called before the Congress, for he clearly possesses much relevant information. Of course, Rove and Libby will hide behind executive privilege when called before Congress. But McClellan is a different story.

Bush cannot force McClellan to invoke executive privilege, but McClellan will be exiled from the his former clan for failing to remain silent, for McClellan’s testimony has the potential of giving the House of Representatives the added information, if not the spine, needed to enforce its own contempt citations. To date, the Bush White House has made a mockery of Congress, openly defying its proceedings.

The obstruction of justice laws are very broad. Still it is not likely that McClellan’s testimony alone will result in the reopening of a criminal investigation into obstruction of justice. Granted, Bush’s attorney general, former federal judge Michael Mukasey, is not going to do anything on this score. Nonetheless, McClellan can start a process that will reopen the case in the future. Unlike prior presidential candidates, Barack Obama believes it is time for change regarding responsibility for criminal conduct at the highest levels of government – and he could act on that belief by reopening this investigation with his own people.

Candidate Obama’s Exceptional Position on the Crimes of His Predecessor

Barack Obama would truly be a president of change if he held a predecessor administration criminally liable for its misconduct. It has long been something of an unofficial standard of comity between out-going and in-coming presidents to overlook the misconduct of the previous administration. But no president is compelled to do so.

During the primaries, Obama was asked this question. His response was so striking, I have quoted it in full: “What I would want to do is to have my Justice Department and my Attorney General immediately review the information that's already there and to find out are there inquiries that need to be pursued. I can't prejudge that because we don't have access to all the material right now. I think that you are right, if crimes have been committed, they should be investigated. You're also right that I would not want my first term consumed by what was perceived on the part of Republicans as a partisan witch hunt because I think we've got too many problems we've got to solve.”

He continued, “So this is an area where I would want to exercise judgment -- I would want to find out directly from my Attorney General -- having pursued, having looked at what's out there right now -- are there possibilities of genuine crimes as opposed to really bad policies. And I think it's important-- one of the things we've got to figure out in our political culture generally is distinguishing between really dumb policies and policies that rise to the level of criminal activity. You know, I often get questions about impeachment at town hall meetings and I've said that is not something I think would be fruitful to pursue because I think that impeachment is something that should be reserved for exceptional circumstances. Now, if I found out that there were high officials who knowingly, consciously broke existing laws, engaged in cover-ups of those crimes with knowledge forefront, then I think a basic principle of our Constitution is nobody is above the law -- and I think that's roughly how I would look at it.”

Obama’s unusual and laudable perspective is why McClellan’s appearance, and the diligence of the House Judiciary Committee, are the reason that this may not be merely a matter of passing interest. If a congressional committee, like the House Judiciary Committee, develops a prima facie case that would make it appropriate for President Obama’s attorney general to fully investigate the matter. Needless to say, if we have a President McCain, the Congress happens to uncover even far more heinous crimes than obstructing justice, you can be certain that nothing would happen -- other than the Bush and Cheney team leaving government without a scratch.

John W. Dean, a FindLaw columnist, is a former counsel to the president.

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