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More diGenova/Toensing Nonsense

Last week on TPM Cafe I picked on former prosecutor Joseph diGenova, who asserted knowledgably that the CIA gave "materially false" information to prosecutor Patrick Fitzgerald to provoke the Plame investigation, when in fact no crime had occurred. I commented there that diGenova's "only competition for the title of worst partisan hack disguised as impartial legal expert comes from within his own household."

That would be his wife, Victoria Toensing. Yesterday she reclaimed the title in a video interview with the Washington Post's Terry Neal. It took me a long time to watch it -- the video kept pausing -- so to spare you the difficulty, here are some of Toensing's points that might be of interest to you:

* The Intelligence Identities Protection Act, which Toensing claims to have written, was really meant only to go after people like rogue CIA agent Philip Agee, who disclosed agents "for purposes of having them assassinated. That's what the law is all about." Since Plame was not assasinated, evidently no crime occurred.

*Rove, in his conversation with Matt Cooper, said, "you can't use this" about the information about Plame. This is a spin that Rove's lawyer, the world's dumbest Luskin, briefly tried to use, but Toensing spends enough time talking to reporters that she doesn't seriously believe that telling a reporter something on "double super secret background" is the same as keeping it an actual secret. Reporters, after all, aren't in the secret-keeping business.

*"Rove's lawyer was told he was neither a subject nor a target" of the investigation. This is a new spin on an old canard. Yes, Luskin says his client is not a "target." Being a "target" is tantamount to being indicted. Luskin has never claimed that his client was not a subject, saying only that lots of people might be subjects of the investigation.

* "You know who's really responsible for this whole mess? The Press. It's the press that demanded an independent counsel." And independent counsels always make a big deal of things and seek indictments that aren't justified.

This is wrong on several counts, but most notably, Fitzgerald is not an "independent counsel." It is true that under the expired Independent Counsel act, IC's had no other responsibility and set their own budget; they had every incentive to do stretch out their investigations for years and then seek indictments that a normal prosecutor, allocating resources carefully, would not seek.

The quintessential example of that phenomenon is the case of David Barrett, an independent counsel who has been investigating Clinton's first secretary of Housing and Urban Development, Henry Cisneros, since 1995, and is still spending $2.5 million a year six years after securing a misdemeanor conviction against Cisneros for misleading the FBI about a non-criminal personal matter. Toensing's husband was an exception to the typical independent counsel rule: he spent three years on the public dole investigating whether the first Bush administration had illegally searched Clinton's passport file; he found that they had but didn't bother to indict anyone. Hmm.

Fitzgerald, on the other hand, is a regular prosecutor with a special assignment. He has a real job, in which he is aggressively chasing down corruption in Chicago government. He has every incentive to conclude the Plame investigation quickly and efficiently so he can get back to that work.

To his credit, Terry Neal did the best he could to force Toensing out of the spin and into a normal conversation, asking, for example, "Isn't it equally pernicious to exonerate Rove before the facts are out." But the mistake is in allowing either half of this couple to pose as an "expert."

Posted by Mark Schmitt on July 22, 2005 | Permalink


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This is a spin that Rove's lawyer, the world's dumbest Luskin, briefly tried to use.

Man, that's harsh.

Posted by: Neil the Ethical Werewolf | Jul 22, 2005 6:56:08 PM

Even if we were to accept the notion that the IIPA was intended solely for Phil Agee types, the operative phrase is that such types seek to "impair or impede the foreign intelligence activities of the United States."

It's not what comes immediately to mind when thinking about the Cheney cabal, but take the special venom they reserved for intelligence community skeptics of their war plans and justifications (see Bolton's serial harassment, and the Plame outing), combined with the "stovepiping" allegations from Sy Hersh, and reconsider them in this light.

It doesn't look nearly as much like "just politics" viewed through the prism of Toensing's very own IIPA.

There are legitimate methods of restructuring and redirecting the intelligence community's mission. Bypassing them, dismantling the vetting process, and ultimately betraying covert operatives and entire cover operations should they present contradictory intelligence are not among them.

Posted by: Kagro X | Jul 22, 2005 11:57:53 PM

Hate to get all gratuitous and nasty, but these people are pathetic hacks. I mean, check out diGenova's mustache: http://www.digenovatoensing.com/bios.htm.

Posted by: fnook | Jul 23, 2005 1:45:29 AM

Keep in mind that when a top official speaks on background, even "double super secret background," he's asking to be quoted without identification. If he wants to say "you can't use this," he'll ask to go off the record. While Rove did seem to be warning Matt Cooper off the Wilson story, he was also offering up blind quotes for that same story.

Posted by: TomHilliard | Jul 23, 2005 11:05:17 AM


Maybe you can help me out with a classification question. As I point out in this post, in addition to mentioning Plame's identity in his first column, Novak also identified the source of the Niger documents as SISMI. That information had appeared in a WaPo article the previous March, sourced to someone at the UN (and, interestingly, the GOP was trying to blame Wilson for being the source of that information). But the information was definitely considered sources and methods by the CIA; the classification of the Italian source--and not any squeamishness about the Niger claims themselves--is the reason Bush didn't name Niger specifically in the SOTU. And as recently as the SSCI report, CIA seems to be treating the Italy-as-source info as still classified.

So here's my question. The fact that a (presumably) non-US citizen identified the Italian source wouldn't affect that information's status as classified, would it? So if Novak's source knowingly leaked the Italian source to Novak (in addition to Plame), that would be another illegal leak, right?

Of course, there's a delicious irony here. The reason CIA would still treat that information as classified after it had been leaked by someone else is to maintain their credibility with their source, to stay on good terms with SISMI so they could continue to share information. This is the same reason journalists don't burn their sources. So Judy Miller and a bunch of other journalists have been protecting a source who by the act of leaking was burning his own source.

Posted by: emptywheel | Jul 23, 2005 11:09:55 AM

And so this parade of fools just goes on and on. I am incensed about the fact that this administration thinks that the public is so stupid as to believe the statements they are making. But then I remind myself that a lot of people are still proud that they voted for Bush. So there ya' go.
It's not a matter of one offense. When you add up all of the bad acts committed by this bunch, it's apparent that they hold Machiavellien principles dear. And they are hurting the country in the process.

Posted by: Cole | Jul 23, 2005 12:47:32 PM

both of these clowns make me sick!!!!

Posted by: lou carney | Jul 25, 2005 12:45:11 PM

In the interview Toensing said this:"You know who's really responsible for this whole mess? The Press. It's the press that demanded an independent counsel." And independent counsels always make a big deal of things and seek indictments that aren't justified.
(Emphasis mine)

Someone in the blogosphere was limning Andrew McCarthy's article in NRO last Friday, 7//22, who was commenting on Cliff May's article in NRO that Matt Yglesias commented on on TPMCafe.
McCarthy's article is really a piece of work; he cites Cliff May's article, but interestingly, he also cites an Amicus Brief filed on behalf of "the media" I took the time to actually read who wrote the amicus brief on behalf of "the media", and gee, to my surprise it was [drumroll.....] Victoria Toensing.

McCarthy's article also quotes an article from "just the facts ma'am" [hah!] Bill Gertz of the Washington Times. Not surprisingly, his article is a thinly sourced piece of crap, quoting "anonymous administration sources." Not to my surprise, what does Toensing cite in the Amicus Brief as one of her sources to make the claim that "Plame was not covert" Why, yes, it would be Bill Gertz's piece in the Washington Times!

I hope that Scaife doesn't pay these guys by the hour because it seems like they all get their ideas from each other.

Posted by: DJBaker1537 (seeTPMCafe) | Jul 25, 2005 2:46:20 PM

Thank goodness, I now have a source for two competitions that I've been trying to follwo "Worst partisan hack disguised as impartial legal expert" and my personal favorite "World's dumbest Luskin".

Who knew there would ever be a question as to who the World's dumbest Luskin is?


Posted by: Zach | Jul 25, 2005 4:50:53 PM

It's becoming more obvious each day that the GOP strategy for dealing with Plamegate will be to try to cut Fitzgerald off at the knees. It looks to me like he has the goods on a group of high administration officials, and they know it. A continuing investigation will be a political and legal disaster for BushCo and the GOP.

I'm afraid that we are headed for a very serious constitutional crisis, in which the administration essentially tries to halt a legitimate inquiry into real crimes.

Posted by: global yokel | Jul 26, 2005 11:42:12 AM