Tapegate Probe Will Outlast Bush Presidency

You can't make this stuff up. The federal prosecutor chosen to lead the criminal investigation into the Central Intelligence Agency's destruction of interrogation videotapes is the same guy who helped bust up the Boston mob.

With his choice of veteran prosecutor John Durham to lead the investigation into Tapegate, Attorney General Michael Mukasey has shown that he takes this matter seriously. And by naming Durham, a bulldog who is more professional than partisan, Mukasey also ensures that the investigation will be ugly and long-lasting.

So now we wait -- for subpoenas and other requests for information and documents sent by the Justice Department to the CIA. And for the assertion of executive privilege and the "state secrets" doctrine and other national-security related defenses from the CIA -- and, probably, the White House. We wait for court hearings and backroom negotiations. We wait for recusals by Justice Department officials who offered legal opinions about the destruction of the tapes before they were destroyed. We wait for congressional whining about the pace of the investigation. And we wait for the sort of political posturing that comes with an election year.

Whether Durham, a U.S. attorney in Connecticut, can undertake a thorough investigation within the confines of the executive branch is an open question. The CIA says it will cooperate. But that's what investigatees always say. Moreover, the CIA cannot compel one of its officials to participate in a criminal investigation against his or her will. (Remember: people go to jail, agencies do not.) Each person called before Durham's investigators will have the constitutional right to cooperate or remain silent.

Then there is the "internal legal defense" angle. If CIA (and Justice Department) lawyers ginned up a rationale for destroying the tapes, and CIA officials then followed that legal advice, how can those officials ultimately be charged with a crime? How can the Justice Department charge executive branch lawyers with providing faulty legal advice?

And, given Dunham's past experience, who's a tougher nut to crack -- famous federal fugitive James "Whitey" Bulger or infamous executive branch zealot David Addington?

There are plenty of questions here, and very few answers.

By Andrew Cohen |  January 3, 2008; 9:15 AM ET
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Please email us to report offensive comments.

The term "gate" does not mean "crime." Wash your word processor. And your mouth. Learn some new words.

Posted by: Gary E. Masters | January 3, 2008 10:17 AM

bush and his attorneys are probably chuckling over this little nixonian tape escapade. it happened before and all we got was an "opps!". Durham was appointed because of his reputation which is a set up to the inevitable conclusion that "if the person who busted up the boston mob can't find any wrongdoing, then no one can." furthermore, i remember the feinstein and shumer comments when they were holding mukassey's confirmation hearings. it's all a shell game; give the appearance of legitimacy and just when they seem suckered, pull the rug right from under them. this investigation will not be "ugly and long-lasting". rather, the way bush and co. will handle this will result in an investigation that will be prettily wrapped in gold and tied with a crimson bow. executive privilege has gone the route of the fifth amendment--a constitutional protection to cover criminal activity.

Posted by: glenknowles | January 3, 2008 10:36 AM

I want accountability no matter the cost, no matter how long it takes. The crimes of this Administration (and they are Legion) and it's Republican enablers needs a vigorous investigation - with subpoena and contempt powers. Yes, I realize that Bush will pardon all of these people as he leaves office, but the health of my Country requires that the lawbreaking done by our Executive be brought to light so it can never happen again.

Posted by: Russ Carter | January 3, 2008 10:41 AM

Lawyers may not be able to be prosecuted for giving bad legal advice, but the can be disbarred.

Posted by: Matt C. | January 3, 2008 10:42 AM

Perhaps, NSA is a puppy bulldog, who ate the CIA homework. Seriously agents, someone contact Baker Botts for a real attorney.

Posted by: Diane | January 3, 2008 10:46 AM

Rockefeller is the one shaking in his boots. He supported the destruction. CIA did a reach around trying to find congressional support. Everyone was else was against it.

Posted by: AccentMark | January 3, 2008 12:52 PM

?Lawyers may not be able to be prosecuted for giving bad legal advice, but they can be disbarred."

Pray, how is that, Matt C.? If those lawyers' actions were done in good faith, which I absolutely believe them to be? Do tell which ECs they would have violated, in order to be "disbarred" as you put it?

Ill-advised? Perhaps. The CIA official-Rodriguez, alleges that the CIA lawyers signed off on the destruction. I believe that is probably true. I think what we will find here is that there was a failure/break-down of communication in the CIA General Counsel chain of command, that the lower-level lawyers made a decision, without knowing about the higher-level discussions that had been going on about the tapes, and without advising the GC about their actions. Also, we know nothing of the discussions Rodriguez had within HIS chain of command, and with whom. But going with the lawyer scenario, it may be that the lower level lawyers signed off on the destruction of tapes, because their client-Rodriguez- had given them legitimate reasons to do so, because they work in a separate unit with the official in question, and the official in question wanted to protect sources, he DID NOT WANT TO DESTROY "EVIDENCE;" THE 9/11 INVESTIGATION WAS OVER IN 2005, AND THE TAPES WERE NOT BELIEVED TO BE RESPONSIVE TO COURT ORDERS. ACCORDINGLY, THAT DOESN'T MAKE ANY OF THEM BAD GUYS.

I would not advise program officials to destroy anything, anything at all, because you never know whether something will come up about it later, and there is an instant inference of negativity attached to any federal document that is intentionally destroyed, HOWEVER WELL INTENTIONED.



But even as I write my words of warning, I know they are utterly innocuous, as they will go completely unheeded...

Posted by: LawBlogger | January 3, 2008 12:53 PM

Oh heck! I hear a lot of lawyers in action here. This is the Federal government we're talking about. This administration and anyone associated with it has lied, obfuscated, used "the dog ate my homework" excuse, had selective memory loss so many times that I've lost count. When caught, these creeps and the rest of neocons circle their wagons, denying everything. The media has, if anything, given them a pass and not demanded an explanation of events. These things don't require a long, exhaustive investigation--it simply requires a few good men and women to tell the truth. To lawyerblogger, they are innocent public servants. Only a lawyer could say that--you hoping for a job defending these people lawyerblogger. Get rid of the CIA, and NSA and hold administration officials accountable for misconduct. I'm not a lawyer, but I know right from wrong--if it can potentially look unethical, illegal, and just bad, don't do it. You may lose your job, but at least you can live with yourself. There were once "good" honest republicans who wouldn't stand for individuals, even in their own party, behaving as this administration has. Those days are long gone and the American people have not only let it happen--they have demanded it.

Posted by: maddog56 | January 3, 2008 02:03 PM

I don't think it will last that long, I expect the administration to work to speed up the investigation, especially if the next president is a Democrat. That way, Bush can pardon everyone just before he leaves office.

Posted by: DavidS | January 3, 2008 02:45 PM

Just make sure the investigation continues until there is Democratic control and Bush is out of the WH. No pardons for Torture!

Posted by: thebobbob | January 3, 2008 02:45 PM

I'm in my forties now, but I'm sure I'll be receiving Social Security before this thing finally works its way through the courts - unless Dubya pulls a Bush Sr. and hands out Christmas pardons a month before he leaves office. Hell, Dubya is so arrogant, I wouldn't be surprised if he issued a blanket pardon for anyone who ever worked in his administration. I doubt that's legal, but I wouldn't put it past him to at least try.

Posted by: TJ | January 3, 2008 02:50 PM

Time for a revolution to rid ourselves of the Treasonous Neo Con Parasites infesting the Executive Branch.. Including the Neo Con Lawyers, Judges and Prosecutors who replaced the Politically Fired Non Partisan Lawyers, Judges and Prosecutors..
Including the Morally and Legally Bankrupt as well as Conflict of Interest and Collusion Challenged United States Supreme Court Justices who are aiding and abetting the Gutting, Usurping and Crapping on the United States Constitution..
To ensure the Neo Con Parasites can continue to Pig Out at the United States Treasury Trough to the tune of the 1 trillion American Taxpayer dollars already spent on Iraq... And the overall picture of the 10 trillion American Taxpayer dollars in Deficits that the Treasonous Scumbags in King Pinocchio and Shotgun Cheney's Court has rung up.

Posted by: CurtJ | January 3, 2008 03:35 PM

It really seems the money this will cost, could be better spent. The tapes are gone, what else can be done?
I think we should use that money and maybe send our troops, some body armor. Just a thought.

Posted by: The Advocate06 | January 3, 2008 03:41 PM

But Bush has already come out to say the white house will offer "full cooperation".


We know what that means. NOTHING.

Kucinich is right. We need to impeach Bush and Cheney. At the least it may prevent the slew of pardons we know will be forthcoming.

Posted by: Willy | January 3, 2008 04:50 PM

The only ones going to be prosecuted will be the ones that leaked classified info to the NY Times and the NY Times will roll on their sources when threatened with jail. Whistleblower status doesn't apply to agents in charge of protecting classified info regardless of their political positions on the matter.

Posted by: Toby Hill | January 3, 2008 05:12 PM

It will be a good thing for the investigation to extend beyond GWB's term, if only to take the power of pardon away.

Posted by: mike s | January 4, 2008 01:55 AM

"With his choice of veteran prosecutor John Durham to lead the investigation into Tapegate, Attorney General Michael Mukasey has shown that he takes this matter seriously."

Not serious enough to give Durham his independence. Mukasey's boots (and George's) are still all over Durham's back.

Call me when Patrick Fitzgerald's is on the job.

Posted by: sy | January 4, 2008 08:19 AM

There are aspects of this tape burning that seem to reach all the way up to Bush! Mukasey works for Bush, Durham works for Mukasey, Sounds like the same old same old, an agency of this administration investigating itself!

The Democratic version of 'Ken Starr should be appointed independent investigator!

I won't hold my breath!

Posted by: Bob Egan | January 4, 2008 10:30 AM

All of this Administration's grabs of power should outlast it - otherwise George Santana's admonition will be proven true once again.

Posted by: DC | January 4, 2008 02:59 PM

Get real! All these crocodile tears of outrage by the liberal and Democratic Party--controlled MSM and the Bench Conference whiners here over the destruction of some CIA interrogation tapes is nothing more than a fishing expedition to try to get something on President Bush and his administration. If all you shysters were really concerned with what's in our countries interests and CIA tapes and secrets you would have been equally upset when the New York Times committed treason by publishing the CIA secret International Banking and money launderings by the Al Qaeda terrorist group that our CIA was tracking them with. You would have been equally upset over the CIA's Rendition program that was done under Bill Clinton from 1995 on that sent captured terrorists to Egypt, Jordan and other countries for interrogation. If all you shills for the Democrats really cared about our country you would have demanded a Special Prosecutor to find out who within the CIA leaked classified information to the New York Times, and who on the New York Times's ed. board decided to publish it. Nobody made a peep then, SURPRISE, SURPRISE!!!
Had the CIA tape destruction occured on Bill Clinton's watch, this would not only not be an issue at all, but nobody would have made a peep.
It's sad that the liberal Democrats put the political interests of their party ahead of the interests of our country. You condone our CIA's secrets being revealled via the NYT--which could and probably did get a lot of Americans killed--and then loudly whine about destroyed CIA interrogation tapes solely to try to score political points against a president who has done an exellent job. We have had no successfull terrorist attack on US soil in 6 years.
To liberal Democrats it obviously is: "The Party Uber Alles"!!!
And you liberals call yourselves patriotic Americans. Yeah, and pigs fly!

Posted by: madhatter | January 6, 2008 11:14 PM

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