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Steve Bannon’s “Alleged” Non-Contemptuous Behavior

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On Friday, the two sides in the Steve Bannon contempt prosecution filed a bunch of motions about the scope of the case. They are:

Office of Legal Counsel memos

The fight over OLC memos is likely to get the bulk of attention, possibly even from Judge Carl Nichols (who relied on one of the OLC memos at issue in the Harriet Miers case). While there’s no telling what a Clarence Thomas clerk might do, I view this fight as mostly tactical. One way for Bannon’s attempt to fail (Nichols improbably ruling that OLC memos cannot be relied on in court) would upend the entire way DOJ treats OLC memos. That might have salutary benefits in the long term, but in the short term it would expose anyone, like Vice President Dick Cheney, who had relied on OLC memos in the past to protect themselves from torture and illegal wiretapping exposure themselves.

In my opinion this challenge is, in part, a threat to Liz Cheney.

But as DOJ (I think correctly) argues, none of this should matter. That’s because — as they show with two exhibits — none of the OLC memos apply to Bannon, and not just because he was not a government employee when he was plotting a coup.

On October 6, 2021, Trump attorney Justin Clark wrote to Bannon attorney Robert Costello (citing no prior contact with Costello), instructing him not to comply to the extent permitted by law:

Therefore, to the fullest extent permitted by law, President Trump instructs Mr. Bannon to: (a) where appropriate, invoke any immunities and privileges he may have from compelled testimony in response to the Subpoena; (b) not produce any documents concerning privileged material in response to the Subpoena; and (c) not provide any testimony concerning privileged material in response to the Subpoena.

But on October 14, Clark wrote and corrected Costello about claims he had made in a letter to Benny Thompson.

Bob–I just read your letter dated October 13, 2021 to Congressman Benny Thompson. In that letter you stated that “[a]s recently as today, counsel for President Trump, Justin Clark Esq., informed us that President Trump is exercising his executive privilege; therefore he has directed Mr. Bannon not to produce documents or testify until the issue of executive privilege is resolved.”

To be clear, in our conversation yesterday I simply reiterated the instruction from my letter to you dated October 6, 2021, and attached below.

Then again on October 16, Clark wrote Costello stating clearly that Bannon did not have immunity from testimony.

Bob–In light of press reports regarding your client I wanted to reach out. Just to reiterate, our letter referenced below didn’t indicate that we believe there is immunity from testimony for your client. As I indicated to you the other day, we don’t believe there is. Now, you may have made a different determination. That is entirely your call. But as I also indicated the other day other avenues to invoke the privilege — if you believe it to be appropriate — exist and are your responsibility.

In other words, before Bannon completely blew off the Committee, Trump’s lawyer had told him not to do it on Trump’s account. (See this post which captures how Robert Costello had tried to bullshit his way through this.) That, by itself, should kill any claim that he was relying on an OLC memo.

Bannon’s prior (alleged) non-contemptuous past behavior

For different reasons, I’m a bit more interested in DOJ’s attempt to prevent Bannon from talking about what a good, subpoena-obeying citizen he has been in the past. Costello had made this argument to DOJ in an interview Bannon is trying to get excluded.

DOJ argues, uncontroversially, that because Bannon’s character is not an element of the offense, such evidence of prior compliance with a subpoena would be irrelevant.

Just as the fact that a person did not rob a bank on one day is irrelevant to determining whether he robbed a bank on another, whether the Defendant complied with other subpoenas or requests for testimony—even those involving communications with the former President—is irrelevant to determining whether he unlawfully refused to comply with the Committee’s subpoena here.

I expect Judge Nichols will agree.

What I’m interested in, though, is the way the filing refers to Bannon’s past compliance with subpoenas as “alleged.” It does so nine times:

The Defendant has suggested that, because he (allegedly) was not contemptuous in the past, he is not a contemptuous person and was not, therefore, contemptuous here.

[snip]

Mr. Costello advised that the Defendant had testified once before the Special Counsel’s Office of Robert S. Mueller, III (the “SCO”), although Mr. Costello did not specify whether the pertinent appearance was before the grand jury or in some other context; once before the U.S. Senate Select Committee on Intelligence; and twice before the U.S. House of Representatives Permanent Select Committee on Intelligence. See id. Although, in his letter to the Committee and his interview, Mr. Costello said nothing about whether the Defendant was subpoenaed for documents by those authorities and whether the Defendant did produce any, and he did not say whether those other subpoenas or requests were limited to communications with the former President or involved other topics as well, the Defendant and Mr. Costello have asserted, essentially, that the Defendant’s alleged prior compliance demonstrates that he understands the process of navigating executive privilege, illustrates his willingness to comply with subpoenas involving communications with the former President, and rebuts evidence that his total noncompliance with the Committee’s subpoena was willful.

[snip]

The Defendant cannot defend the charges in this case by offering evidence of his experience with and alleged prior compliance with requests or subpoenas for information issued by Congress and the SCO.

[snip]

The Defendant’s alleged prior compliance with subpoenas or requests for information is of no consequence in determining whether he was contemptuous here.

[snip]

Specifically, the Defendant’s alleged compliance with other demands for testimony is not probative of his state of mind in failing to respond to the Committee’s subpoena, and his alleged non-contemptuous character is not an element of the contempt offenses charged in this case.

[snip]

1 1 To the extent the Defendant seeks to introduce evidence of his general character for law-abidingness, see In re Sealed Case, 352 F.3d 409, 412 (D.C. Cir. 2003), he cannot use evidence of his alleged prior subpoena compliance to do so. Evidence of “pertinent traits,” such as law-abidingness, only can be introduced through reputation or opinion testimony, not by evidence of specific acts. See Fed. R. Evid. 404(a)(2)(A); Fed. R. Evid. 405(a); Washington, 106 F.3d at 999.

[snip]

Second, whatever probative value the Defendant’s alleged prior compliance in other circumstances might serve, that value is substantially outweighed by the trial-within-a-trial it will prompt and the confusion it will inevitably cause the jury.

[snip]

The Defendant’s reliance on counsel and/or his alleged good faith in response to prior subpoenas is thus not pertinent to any available defense and is irrelevant to determining whether his failure to produce documents and appear for testimony in response to the Committee’s subpoena was willful. [my emphasis]

The reason DOJ always referred to Bannon’s past compliance with subpoenas as “alleged” is because calling the claim “bullshit” — which is what it is — would be unseemly in a DOJ filing.

As a reminder, here’s the history of Bannon’s “alleged” past compliance with subpoenas (it is unknown whether he was subpoenaed in the Build the Wall fraud investigation):

HPSCI: Bannon got subpoenaed after running his mouth off in the wake of the release of Fire and Fury (Republicans likely acceded to that so they could discipline Bannon for his brief and soon-aborted effort to distance himself from Trump). In his first appearance, Bannon refused to answer a bunch of questions. Then, in a second appearance and after the intervention of Devin Nunes, Bannon reeled off a bunch of “no” answers that had been scripted by Nunes and the White House, some of which amounted to misdirection and some of which probably were lies. Bannon also claimed that all relevant communications would have been turned over by the campaign, even though evidence submitted in the Roger Stone case showed that Bannon was hiding responsive — and very damning — communications on his personal email and devices.

SSCI: Bannon was referred in June 2019 by the Republican-led committee to DOJ for making false statements to the Committee.

According to the letter, the committee believed Bannon may have lied about his interactions with Erik Prince, a private security contractor; Rick Gerson, a hedge fund manager; and Kirill Dmitriev, the head of a Russian sovereign fund.

All were involved in closely scrutinized meetings in the Seychelles before Trump’s inauguration.

[snip]

No charges were filed in connection with the meetings. But investigators suspected that the men may have been seeking to arrange a clandestine back-channel between the incoming Trump administration and Moscow. It’s unclear from the committee’s letter what Bannon and Prince might have lied about, but he and Prince have told conflicting stories about the Seychelles meeting.

Prince said he returned to the United States and updated Bannon about his conversations; Bannon said that never happened, according to the special counsel’s office.

Mueller: Over the course of a year — starting in two long interviews in February 2018 where Bannon lied with abandon (including about whether any of his personal comms would contain relevant information), followed by an October 2018 interview where Bannon’s testimony came to more closely match the personal communications he had tried to hide, followed by a January 2019 interview prior to a grand jury appearance — Bannon slowly told Mueller a story that more closely approximated the truth — so much so that Roger Stone has been squealing about things Bannon told the grand jury (possibly including about a December 2016 meeting at which Stone appears to have tried to blackmail Trump) ever since. Here’s a post linking Bannon’s known interview records and some backup.

But then the DC US Attorney’s Office (in efforts likely overseen by people JP Cooney, who is an attorney of record on this case) subpoenaed Bannon in advance of the Stone trial, and in a preparatory interview, Bannon reneged on some of his testimony that had implicated Stone. At Stone’s trial, prosecutors used his grand jury transcript to force Bannon to adhere to his most truthful testimony, though he did so begrudgingly.

In other words, the record shows that Bannon has always been contemptuous, unless and until you gather so much evidence against him as to force him to blurt out some truths.

Which is why I find it curious that DOJ moved to exclude Bannon’s past contemptuousness, rather than moving to admit it as 404(b) evidence showing that, as a general rule, Bannon always acts contemptuously. His character, DOJ could have claimed, is one of deceit and contempt. The reason may be the same (that contempt is a one-time act in which only current state of mind matters).

But I’m also mindful of how the Mueller Report explained not prosecuting three people, one of whom is undoubtedly Bannon.

We also considered three other individuals interviewed — [redacted] — but do not address them here because they are involved in aspects of ongoing investigations or active prosecutions to which their statements to this Office may be relevant.

That is, one reason Bannon wasn’t prosecuted for lying to Mueller was because of his import in, at least, the ongoing Roger Stone prosecution. That explains why DOJ didn’t charge him in 2019, to retain the viability of his testimony against Stone. I’m interested in why they continue the same approach. It seems DOJ’s decision to treat Bannon’s past lies — even to SSCI! — as “alleged” rather than “criminally-referred” by SSCI, may also reflect ongoing equities in whatever Bannon told the the grand jury two years ago. One thing Bannon lied about at first, for example, was the back channel to Dubai that may get him named as a co-conspirator in the Tom Barrack prosecution.

But there were other truths that Bannon ultimately told that may make it worthwhile to avoid confirming that those truths only came after a whole bunch of lies.

Update: Thanks to Jason Kint for reminding me that Bannon refused to be served an FTC subpoena pertaining to Cambridge Analytica in 2019.

Why to Delay a Mark Meadows Indictment: Bannon Is Using His Contempt Prosecution to Monitor the Ongoing January 6 Investigation

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In this post, I described that DOJ would be smarter to charge Mark Meadows with obstruction for his destruction of records relevant to an ongoing investigation than to charge him for misdemeanor criminal contempt of Congress. That’s because obstruction, a felony, would pose the risk of real jail time, which would be more likely to convince Meadows to cooperate with investigators and explain what he did as part of an attempt to steal the election.

On December 15, the House voted to send the Mark Meadows contempt referral to DOJ for prosecution. Much to the chagrin of the TV lawyers, DOJ has not taken overt action against Meadows on the criminal contempt of Congress referral.

But as I’ve repeatedly argued, that referral is better considered — and would be more useful to the pursuit of justice — as a referral of Mark Meadows for a violation of the Presidential Records Act and obstruction of the DOJ criminal investigation that he knew to be ongoing.

Among the things included in the referral are:

  • A link to this Politico report quoting “a source close to former President Donald Trump’s ex-chief of staff,” insisting that, “all necessary and appropriate steps either were or are being taken” to ensure that Meadows is not deemed to have violated the Presidential Records Act by failing to share Presidential communications he conducted on his personal email and phone
  • Repeated references to Jonathan Swan’s coverage of the December 18 meeting at which Powell and others discussed seizing the voting machines
  • Indication that Meadows received notice on his personal phone (and so among the records withheld in violation of the PRA) the rally might get violent
  • A citation of a message that Meadows turned over to the committee (but presumably not, originally, to the Archives) in which Alyssa Farah urged, “You guys have to say something. Even if the president’s not willing to put out a statement, you should go to the [cameras] and say, ‘We condemn this. Please stand down.’ If you don’t, people are going to die”
  • Citation of several communications Meadows had with state politicians involved in the fake elector scheme (which Deputy Attorney General Lisa Monaco has confirmed they are investigating), including one where Meadows said, “I love it” and another where he said, “Have a team working on it;” Monaco’s confirmation puts Meadows on notice that his actions are the subject of a federal criminal investigation
  • A claim of election fraud sent to Meadows on his private email (and so among the materials he violated the PRA by withholding)
  • Citation of a tweet Meadows sent on December 21 reporting “‘Several members of Congress just finished a meeting in the Oval Office with President @realDonaldTrump, preparing to fight back against mounting evidence of voter fraud. Stay tuned”
  • Citation of this story describing that Meadows’ late December trip to Georgia to pressure election officials to find more votes could get him in legal trouble; when Fulton County DA Fannie Willis asked for increased protection in the wake of Trump’s calls for riots, she stated explicitly that she was criminally investigating, “former President Donald J. Trump and his associates,” putting Mark Meadows on notice that he’s under criminal investigation there, too

This entire process led Meadows and his attorney to make efforts to comply with the PRA, meaning they’ve been working to provide the communications cited here, as well as those Meadows intended to claim privilege over, to the Archives.

If they can’t comply — and some of the texts in question were sent via Signal, which is really hard to archive, and so may not have been preserved when Meadows sent his own phone back to his provider to be wiped and replaced — then Meadows will not just be in violation of the PRA (which is basically toothless) but also of obstructing the criminal investigation he knew was ongoing when he replaced his phone. Obstruction carries a far stiffer penalty than contempt of Congress does, and it serves as good evidence of involvement in a larger conspiracy.

As Carl Nichols, the Trump appointee presiding over the Steve Bannon criminal contempt case (and therefore likely to preside over one against Meadows if it were ever charged), criminal contempt is for someone from whom you’ve given up getting cooperation, not someone who still might offer useful cooperation.

Meanwhile if Meadows and his lawyer do belatedly comply with Meadows’ obligations under the PRA, it’s quite possible (particularly in the wake of the Supreme Court ruling denying Trump’s attempt to override Joe Biden’s privilege waiver) that DOJ has to do no more to obtain these records than to send a warrant to the Archives. If not, Meadows is now on notice that he is the subject of several criminal investigations (the fake elector one and the Fulton County one), and he may think twice before trying to withhold communications that are already in possession of the Archives.

So whether or not DOJ has these documents in their possession right now, they have the means to get them very easily.

When I’ve pointed this explanation out to those wondering why DOJ has yet to (visibly) act on the Meadows contempt referral the January 6 Select Committee the House sent over on December 14, they ask why DOJ can’t just charge Meadows with contempt now and then follow up with obstruction charges later.

The answer is clear. Doing so will make any ongoing investigation far more difficult.

We can see why that’s true from the Bannon case. Bannon has already used his contempt prosecution as a means to obtain evidence about an ongoing obstruction investigation implicating Trump.

In these two posts, I described what we know about DOJ seizing the call records for Robert Costello, the lawyer for both Steve Bannon and Rudy Giuliani, who is someone who has been at the center of Trump’s pardon dangling for years. There’s a full timeline here, but for the purposes of this post, the key details are:

  • On September 23, the House subpoenaed Bannon.
  • Around October 5, the lawyer for Bannon and Rudy started speaking with a lawyer for Trump, Justin Clark, about how to avoid responding on Bannon’s behalf.
  • Between then and Bannon’s deadlines, Costello twice invoked Trump to avoid complying (in an interview with DOJ, Costello admitted that, “CLARK would not identify for COSTELLO what would be covered under Executive Privilege” and “refused to reach out to the Committee on behalf of COSTELLO or BANNON,” though, “CLARK informed COSTELLO not to respond to item 17” (involving communications Bannon had with Rudy, Sidney Powell, and Mike Flynn).
  • Costello claimed he did not know the lawsuit Trump filed on October 18 was coming and also claims he had a draft in process to blow off another October 19 contempt deadline, but on the evening of October 18, he told a J6 staffer that Bannon would not show up.
  • Over the next three days, the J6 Committee went through the process of holding Bannon in contempt, completing the process on October 21.
  • On November 3, Costello met with the investigative team, ostensibly to persuade them not to indict Bannon; in the process, Costello made claims about his communications with Trump’s lawyers (as well as those for Meadows, Dan Scavino, and Kash Patel) that materially conflicted. In response, DOJ sought Costello’s call records, ultimately obtaining records dating back to the last act Costello did on Bannon’s behalf in the Build the Wall prosecution, March 5, 2021, thereby reflecting an interest in Costello’s actions that significantly precede the J6 Committee actions.
  • On November 12, DOJ indicted Bannon. At first, just Evan Corcoran and David Schoen (the latter of whom represented the former President in his January 6 related impeachment) filed notice as Bannon’s lawyers.
  • On December 2, Costello informed DOJ he would file a notice to join the Bannon defense team (he may have been tipped off by his firm that DOJ had asked for his call records for his business phone). DOJ noted that if Costello represented Bannon, it might impact Bannon’s ability to claim an Advice of Counsel defense. On December 8, Costello filed his notice of appearance on Bannon’s team.
  • On January 4, DOJ provided Bannon 790 pages of call records data pertaining to Costello (including from his law firm).

In the early appearances after Bannon’s indictment, DOJ said it wanted to go to trial immediately and believed the trial could take a matter of hours. Bannon, by contrast, wanted a fall trial, and believed the trial could take weeks. Carl Nichols, the Trump appointee who had a key role in the Harriet Miers contempt conflict who is presiding over the case, split the difference on time, and has otherwise seemed unconvinced by Bannon’s maximalist challenges to the indictment.

Nevertheless, because the trial did not happen immediately, until Bannon does go to trial (currently scheduled in July), then DOJ will be obliged to provide him a range of information that would be (as the Costello records clearly are) relevant to an ongoing obstruction investigation implicating Trump personally. And until DOJ has reason to claim a conflict has arisen between Costello’s representation of Rudy and Bannon (which would effectively tip Rudy off that he’s being investigated for January 6), anything shared with Bannon’s defense team will be shared with Rudy’s defense team (and probably, through Schoen, Trump’s).

Those wailing for immediate action got an indictment of Steve Bannon … which will, at most, lead to his jailing for a few months.

And in exchange, Bannon got records that suggest that DOJ treated his attorney as a suspect in a conspiracy to obstruct this (and the J6) investigation. Bannon got records that suggest that DOJ is investigating his lawyer’s activities going back at least to March 5. He was able to see some of the evidence DOJ has obtained in that ongoing investigation.

Until something resets the current status, the contempt prosecution of Bannon is far more useful to Bannon as a means to monitor the ongoing investigation into him and his co-conspirators than it is for DOJ. And DOJ is likely now limiting investigative steps into Bannon and Costello, accordingly, to avoid triggering a discovery obligation to share information with Bannon.

There are a whole lot of really good reasons why DOJ probably hasn’t acted on the Meadows referral yet — most notably that Judge Nichols, who would likely preside over a Meadows case as a related prosecution, has made it clear he believes criminal contempt is used only for those whom DOJ has no hope of coercing cooperation. If they charge Meadows with contempt, per Nichols, they have foresworn any hope of getting his cooperation.

Given what Meadows has already done, DOJ surely views the potential of Meadows’ cooperation as more useful than a time-consuming and restrictive contempt prosecution.

And that’s true, first and foremost, because charging Meadows with contempt now would further limit their ability to shield parts of their investigation from the suspected co-conspirators.

Update: Corrected the Build the Wall reference to mention Bannon, not Meadows.

Elena Kagan Will Be The Most Unqualified Justice In History

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NBC News is reporting Elena Kagan is Barack Obama’s nominee to replace the liberal lion, Justice John Paul Stevens. Kagan is a remarkably poor choice.The stunning lack of curiosity and involvement in the important legal issues of her age, not to mention the law itself, and remarkable absence of compelling written work and record on the part of Elena Kagan has been previously covered.

I have previously explained the total lack of any experience – ever – of any kind – on Kagan’s part in the court system of the United States. Kagan has never set foot as an attorney of record into a trial courtroom in the United States, not even a small claims justice court; nor for that matter, any appellate court save for the literally handful of spoon fed cases she suddenly worked on as Solicitor General. Kagan has never been a judge in any courtroom, of any court, in the United States. Quite frankly, there is not even any evidence Elena Kagan has sat as a judge for a law school moot court exercise. I have had paralegals and secretaries with better experience than this. Does a nominee for the Supreme Court have to be Gerry Spence, Pat Fitzgerald or David Boies? No, but it would be nice if they had the passion, curiosity and commitment to their profession to go to court at least once. Never has there been a United States Supreme Court Justice with such a complete lack of involvement in the court system. Never.

Duke Law Professor Guy-Uriel Charles has damningly demonstrated a Kagan record of lily white hiring, and corresponding shunning of people of color, at Harvard Law under her guidance that, if considered under the seminal Batson standard of prejudice, would have netted Kagan a sanction from the court and a potential misconduct referral to the appropriate bar authority.

Curiously, and very notably, the only pushback by an Obama Administration, who has consistently gone beyond the call of duty in protecting and bucking up a patently poor nominee in Elena Kagan, has been on the racial hiring component exposed by Professor Charles. Here are the “talking points” memo the Obama Administration sent around to its acolytes and stenographic mouthpieces in the press and internet ether to counter the substantive criticism of Elena Kagan.

Notice anything missing in the official Obama White House talking points? I do. They are solely focused on the racial exclusion charge (and here is the response eating their lunch on that). Did you see what is NOT responded to, or addressed, in any way, shape or form by the White House? If you guessed “Elena Kagan’s complete lack of any record whatsoever of participation or accomplishment in the legal process of the United States”, take a bow, you are Read more →

The Timeline of Torture Tape Destruction in John Durham’s Documents

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As I said the other day, most of the documents we received the other day are the 13 or so documents that CIA had cleared for FOIA release, but over which John Durham had declared a law enforcement privilege. This chart compares what we got with what had been declared in Vaughn Indices in November (this showed the hard copy documents explaining the destruction of the torture tapes) and January (this showed the electronic documents discussing the destruction of the torture tapes; there are 6 files total to this index). While this doesn’t show us everything John Durham is looking at (presumably, there are a number of documents that are too sensitive to release), looking at the documents from this perspective gives us a sense of what Durham is investigating.

As you’ll see from the chart, I have numbered the documents from 1 to 27. I just assigned them in the order the documents appear in the complete PDF file. I’ll also refer to the PDF number for each document.

The Documents Not on Durham’s List

First, assuming I matched the documents up to the Vaughn descriptions properly, there are four documents that were not on Durham’s list:

  • Document 9, January 9, 2003, Review of Interrogation Videotapes (PDF 24-28)
  • Document 11, June 18, 2003, Interview Report (PDF 33-37)
  • Document 22, December 3, 2007, Potential Statement (PDF 86-93)
  • Document 23, December 10, 2007, Trip Report (PDF 95-99)

I believe these documents all did appear elsewhere in the earlier FOIAs on this (I’m going to try to find the Vaughn descriptions later), but presumably CIA had earlier said it could not release them, which meant it was that decision, rather than Durham’s determination, that had prevented their earlier release.

Most of these documents (except the questions) pertain to the CIA Office of General Counsel review of the torture tape, and the Inspector General’s subsequent discovery that the original review had neglected to mention key details about blank tapes and discrepancies between what was portrayed in the video and what OLC authorized. Curiously, their release seems to be tied to the events reported by the WaPo, in which John McPherson, reportedly the lawyer who conducted that review, was given immunity to testify before the grand jury in the last month or so. In other words, now that McPherson has testified about this stuff, CIA has decided to release the details of his review publicly. I have included the documents in the timeline below.

Update: I’ve added in some of the dates reflected in the Vaughn Indices that I think flesh out this timeline. Those dates will not be bolded.

The Chronology on the Tapes

Many of the rest of these documents pertain to the correspondence regarding videotapes. The chronology they show is:

April 13, 2002: Interrogators start videotaping interrogations.

April 17, 2002: Two page Top Secret cable providing guidance on the retention of video tapes.

April 27, 2002: A letter directing the tapes “should all be catalogued and made into official record copies” and asking when they would “arrive here.” (Document 1; PDF 1)

May 6, 2002: Someone sends a cable providing guidance to “please do not tape over or edit videos of Abu Zubaydah’s interrogations” and “please preserve all videos.” Note, we don’t get the original copy of this, but it appears in an email forwarding the cable to Scott Muller and John Rizzo in January 2003. (Document 10; PDF )

September 5, 2002: According to October 25, 2002 cable (see below), “HQS elements discussed the disposition of the videotapes” and determined that “the continued retention of these tapes … represents a serious security risk.” (Documents 2 and 3; PDF 3-7)

September 6, 2002: Two emails: A five-page email between CIA attorneys regarding a draft of a cable discussing the disposition of the video tapes, and a one-page email between CIA attorneys on the revisions of a draft cable regarding the disposition of the video tapes.

October 25, 2002: Cable directing field to tape over tapes each day and promising someone will deploy to assist in destroying the existing tapes. (Document 2, Document 3; PDF 3-7)

October 27, 2002: Some excerpts the October 25 cable and another one (which is entirely redacted) into a one-page summary. Note that both prior cables were classified Secret, but this summary is classified Top Secret. (Document 4; PDF 9)

November 28, 2002: It appears this cable was included among those collected in Document 12 some time after the tape destruction. But what we got in FOIA cuts off the cable (and entirely redacts what is there). (PDF 39-50) Note that the November 11, 2009 Vaughn Index described document 12 as a 13 page document, but we’ve only got 12 pages.

November 30, 2003: John McPherson reviews the torture tapes. This is noted in an undated timeline of the facts surrounding the torture tape destruction. (Document 25; PDF 103-104)

December 1, 2002: A two-page email that discusses the notes of a CIA attorney.

December 3, 2002: After McPherson reviewed the videotapes on November 30, someone sent out a cable stating that it was a mistake to move the videotapes, and ordering that “no tapes will be destroyed until specific authorization is sent.” Documents 5, 6, and 7 all appear to be identical copies of this cable, save for routing information that is redacted; the routing on Document 6 is very long. (PDF 11-18)

December 3, 2002: A one-page email outlining the destruction plan for video tapes.

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Is John Durham Finally Done?

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While we’re waiting to get the documents discussed in these NYT and WaPo and WSJ stories, in which (among other things) Dusty Foggo’s Deputy records that Porter Goss “laughed and said that actually, it would be he, PG, who would take the heat” about the destruction of the torture tapes, I wanted to look at this passage from the NYT:

One American official familiar with the matter cautioned that the e-mail messages were merely the account of one unnamed C.I.A. official, not the results of a formal investigation.

“It’s a little risky to draw cosmic conclusions from something like that,” he said.

And this similar passage, from the WaPo:

“There may have been some people who thought precise procedure wasn’t followed, but I haven’t heard of anyone who believed at the time that any law had been broken,” said a U.S. official familiar with the matter, speaking on the condition of anonymity to discuss the subject of an ongoing investigation. “That’s quite a different thing.”

I raise these quotes–dismissing the damning nature of the emails while suggesting they don’t amount to criminal activity–because these emails look like they could be some of the 13 documents John Durham withheld in the ACLU’s FOIA. For example, the documents described appear to be some of these documents.

Document 5, November 8, 2005, Request for approval to proceed w/authorization of tape destruction

This document is a one-page cable from the field to CIA Headquarters requesting permission to destroy 92 videotapes.

Document 2, November 9, 2005, Request approval to destroy field videotapes

This document is a fourteen-page email chain with six embedded cables. Three of the cables relate to the decision to destroy the 92 videotapes. The remaining cables discuss an unrelated counter-terrorism operation.

Document 4, November 9, 2005, Videotape destruction confirmation

This document is a one page cable from the field to CIA Headquarters, confirming the destruction of the videotapes.

Document 23, November 25, 2005, Short backgrounder of tape destruction

This is a three-page email chain that provides background information on the tape destruction.

I’m interested in whether these documents are the 13 documents, because Durham was withholding those until his investigation was finished. Which would sure suggest that Durham may be finished.

Now, Robert Bennett appears in all these stories talking about how Rodriguez should be treated as a hero for destroying these tapes. The quotes make Bennett sound almost desperate to defend his client. So maybe … just maybe … we’ll get an indictment over this.

Or the two officials quoted (perhaps they’re the same guy) are simply trying to tamp down expectations before John Durham announces all this was hunky dory.

One more thing. The WSJ version of the story notes that the CTC drafted the request to destroy the tapes on November 4.

More than a year later, on Nov. 4, 2005, the CIA’s Counterterrorism Center was asked to draft language requesting approval from Jose A. Rodriguez Jr., then chief of the agency’s National Clandestine Service, to destroy the tapes, the memorandum says. Mr. Rodriguez authorized the tapes’ destruction four days later, it says.

November 4 was the day after Leonie Brinkema asked the government whether it had any tapes of interrogations of various detainees, and the same day that a member of Congress wrote a letter to CIA’s IG (I suspect this was one of Jay Rockefeller’s requests to see the IG report on the tapes). It was just days after the Dana Priest article on the black sites. But I’m sure the timing is all a coinkydink.

Rove Has a Date with HJC–He Just Doesn’t Want to Tell Fox News That

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As I noted earlier, Fox reported yesterday that Miers had testified before HJC, but there was not yet an agreement to have Rove testify.

But that’s not right. According to a status report filed in the HJC suit against the White House over ten days ago, Rove has a date to appear.

Pursuant to the Court’s order dated March 5, 2009, the parties respectfully submit this joint status report.

Since the last status report, the parties have made substantial progress towards fulfilling their obligations under the Agreement Concerning Accommodation. The Committee has now been provided access to all of the documents covered by the Agreement, and the parties have agreed to a schedule for interviews with Harriet Miers and Karl Rove, to take place under the agreed terms and conditions.

Miers, Rove, and the documents!?!?! What a novelty. Oversight–just two years in the making.

If Harriet Can Appear Before HJC, Why Not Rove, Yet?

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Fox is reporting that Harriet Miers snuck into HJC for a deposition yesterday. It’s all very nice that–two years after she was subpoenaed, Harriet is just now getting around to showing up before Congress. (h/t fatster)

But I’m more troubled by Fox’s report that there still isn’t an agreement for Rove to testify.

In March, Miers and former Bush adviser Karl Rove agreed to testify under oath.

Miers testified today behind closed doors. It remains unclear when Bolten could be deposed. But a senior House Democrat familiar with the inquiry described Bolten as “a tasty little morsel.” The senior lawmaker indicated to FOX that Rove ”is really the big catch.” But there is still no agreement for Rove to appear.

It has been, by my count, 114 days since Greg Craig and HJC finalized the plan to have Turdblossom (and Miers) testify. Yet he still–according to Fox, which ought to know–hasn’t shown his face for his deposition.

Now perhaps Rove’s interim engagement with Nora Dennehy, in May, explains the delay. After all, HJC might be willing to postpone their chat with Rove to allow a federal prosecutor to grill him first.

But otherwise, what’s the delay? Is it that he’s just more scared of Congress than Harriet Miers?

The HJC Agreement with Rove and Miers

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Here’s the written agreement between HJC and the Bush Administration for Rove and Miers’ testimony. Some highlights:

The House Judiciary Committee (the “Committee”) will interview Karl Rove and Harriet Miers, but there will be no additional interviewees / witnesses (subject to the one exception [possibly William Kelley, who has reportedly been subpoenaed in the probe on this]). 

On this, I wonder whether there isn’t someone else in the White House who was the real fulcrum of the effort? Rove’s denials have always been couched to say he didn’t talk to DOJ, but leaving open the possibility that someone else did (at least on these issues). I wonder if they’ve included this requirement to protect that person?

The scope of the interviews will be limited to: (1) facts relating to the evaluation of, decision to dismiss, or decision to replace the former U.S. Attorneys in question; the alleged decisions to retain certain U.S. Attorneys; and any allegations of selective prosecution related thereto; and (2) testimony or representations made by Department of Justice officials to Congress on the U.S. Attorneys matter. For the period beginning on March 9, 2007 (the date of the Committee’s first written demand for information from the White House), interviews will not include the content of conversations involving: (i) Mr. Rove and members of the White House Counsel’s office; or (ii) Ms. Miers and members of the White House Counsel’s office. In the case of Mr. Rove, the interview also will include facts relating to the prosecution of Alabama governor Don Siegelman.

I’ve asked whether bullet (1) includes the alleged attempt to fire Pat Fitz–will let you know if I hear.

As to the rest–they’ve clearly carved out the White House Counsel Office, presumably to protect Attorney-Client privilege. Bill Clinton and his blow job, of course, enjoyed no such privilege.

As to official privileges, counsel will direct witnesses not to respond to questions only when questions relate to communications to or from the President or when questions are outside the scope of questioning set forth above.

Regarding the David Iglesias firing, of course, there are allegations that Bush intervened directly to give the order to fire him. Read more →

Breaking: Turdblossom and Harriet to Testify

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And, just as importantly, the notion of Absolute Immunity dies a well-deserved death (via email).

In an agreement reached today between the former Bush Administration and Congressman John Conyers, Jr. (D-Mich.), Chairman of the House Judiciary Committee, Karl Rove and former White House Counsel Harriet Miers will testify before the House Judiciary Committee in transcribed depositions under penalty of perjury. The Committee has also reserved the right to have public testimony from Rove and Miers. It was agreed that invocations of official privileges would be significantly limited.

In addition, if the Committee uncovers information necessitating his testimony, the Committee will also have the right to depose William Kelley, a former White House lawyer who played a role in the U.S. Attorney firings.

The Committee will also receive Bush White House documents relevant to this inquiry. Under the agreement, the landmark ruling by Judge John Bates rejecting key Bush White House claims of executive immunity and privilege will be preserved. If the agreement is breached, the Committee can resume the litigation.

Chairman Conyers issued the following statement:

"I have long said that I would see this matter through to the end and am encouraged that we have finally broken through the Bush Administration’s claims of absolute immunity. This is a victory for the separation of powers and congressional oversight. It is also a vindication of the search for truth. I am determined to have it known whether U.S. Attorneys in the Department of Justice were fired for political reasons, and if so, by whom."

You think maybe Rove’s lost his 5 time’s a charge charm with perjury?

Update on timing: The Committee is going to get the documents it had requested and read them before they do the interviews with Harriet and Karl. And the interviews will be done by staffers, with the option of doing a public hearing with questions from Congresspersons if that seems useful. So the timing for the moment seems to be driven by how quickly they get documents. 

Update: Pelosi does a victory dance for the authority of Article I (via email):

The agreement for Karl Rove and Harriet Miers to testify upholds a fundamental principle: no one is above the law and Congressional subpoenas must be complied with.

As public officials, we take an oath of office to uphold the Constitution. It is the institutional duty of Congress — as an independent branch — to Read more →

Will the House Hold Rove in Contempt before March 4?

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Just before I disappeared for a week, John Conyers sent Karl Rove a sternly-worded letter insisting Rove show up for his deposition today.

I also cannot agree to your request for a delay to accommodate Mr. Rove’s schedule. As you know, the deposition was originally scheduled for February 2. On January 29 I in good faith acceded to your request for a delay since you were scheduled to be out of town at the time and requested more time to prepare. I also notified your office of the new February 23 date at that time. Thus, absent an actual commitment by Mr. Rove to comply with the subpoena, I am not in a position to agree to yet a further delay. In essence, given Mr. Rove’s public statements that he does not intend to comply with the subpoena, I am puzzled as to why Mr. Rove needs a mutually convenient date to appear.

Well, the blogger formerly known as Kagro X reports that Rove indeed blew off the House Judiciary Committee (for what must be the third or fourth time) today (h/t Petrocelli).

I find that interesting for several reasons. First, remember that Conyers sent that sternly-worded letter at a point when HJC was already negotiating with the Obama White House about what to do with the Miers/Bolten suit.  

Next, consider some of the other language Conyers used in his sternly-worded letter.

Finally, conducting a voluntary deposition under these circumstances [limiting testimony to the Siegelman witch hunt and excluding the US Attorney firings and other politicization issues] could simply serve to further delay matters beyond the nearly two years I have been waiting, since the Committee could not then be in a position to utilize contempt or other enforcement mechanisms in response to any improper refusal to answer questions. [my emphasis]

Conyers was clearly thinking about contempt when he wrote that letter–at a time when he was in negotiations on the Miers/Bolten suit.

Finally, as I reported earlier, Obama got the second week of his requested two week delay for his brief on the Miers/Bolten suit. HJC agreed to go along with that delay.

Now, I have no reason (besides noting the coincident dates) to believe that there’s a connection between the additional week extension on the Appeals Court brief and any response to Rove’s latest contempt for an HJC subpoena.

Read more →