This is the defensive move — but it isn’t exactly like pleading the fifth, is it? I mean, if the rubber-stamp Republicans aren’t in charge, can’t Congress go ahead with hearings and subpoenas anyway?
But your inclusion of the subtext in the letter is hilarious and rings so true — and it’s really good to hear from you. Can’t wait for the book, but glad you have time for a post or two. I’ve missed your trenchant analysis and ability to cut to the chase.

Eric Lichtblau’s (EW’sLinked) article approved by the editor includes this characterization of the DoJ IG: Mr. Fine has a reputation as a strong and independent watchdog within the Justice Department, and he has issued a number of highly critical reports about the department’s policies and practices since the terrorism attacks of Sept. 11, 2001 [ibid.] I could see a thorough report resulting, and Gonzales stipulating a requirement that the report have a section emphasizing once again the whole problem arose because NYTimes wrote a free press story. Floyd Abrams has some interesting reflections on the turmoil in law about reporter shield and the government’s recent discovery that the GJ evidenciary system permits draconian measures like jailing reporters, a degree of coercion which civil courts are barred from accessing. The article to which I link describes the likelihood Fitzgerald is about to send Judy to jail again for past dogged journalism on her security matters beat; poor Judy; unless congress passes a shield law. I think part of the Fine missive is a candid realization that they need to do some fact gathering; kind of like Gonzales calling Card two days before the SaveEverything directive; call it a presort to filter what Conyers is going to get and what other material goes into the executive privilege category. These are two separate matters, but the pressure upon the press is a common factor. In the Judy HLF-GRF matter, Abrams forthrightly highlights the possibility Judy’s telephone penRegister might reveal other things she was doing. The wierd part is all this information already is in the government’s hands in the wiretap program; very mysterious that Fitzgerald would try to obtain it in pro per from Judy in a GJ setting. It might be FISC is reluctant to open the backdoor for Fitzgerald to obtain the penRegister with a warrant. It would be interesting to know why AJustice Ginsburg and then the full SupremeCourt opted to deny Abrams a hearing.

I’m sure they’d like to think that an â€ongoing investigation†would be reason enough not to cooperate with a Congressional investigation, but an internal review ought to be thought of as â€quality control,†rather than an investigation.

It’s something that ought to have been going on all along, anyway, regardless of what Congress decides to do.

But then again, I’m sure the â€unitary executive†plans to regard Congressional investigations as an unconstitutional intrusion, in violation of the separation of powers.

Well, ultimately, anyway. First they’ll call it needlessly duplicative. Then they’ll claim it’s somehow violative of tradition. Then partisan and vindictive. Then, if we haven’t chickened out by that point, they’ll finally get around to challenging the right of the Congress to investigate and compel testimony at all.

And that’s when we’ll all find out just how tenuous â€subpoena power†really is.

At a minimum, the Democratic Congress should make it possible for ordinary U.S. citizens to find out if they were put under surveillance, and if so, why. (I have more than a few questions about this.)

Well, ultimately, anyway. First they’ll call it needlessly duplicative. Then they’ll claim it’s somehow violative of tradition. Then partisan and vindictive. Then, if we haven’t chickened out by that point, they’ll finally get around to challenging the right of the Congress to investigate and compel testimony at all.

And that’s when we’ll all find out just how tenuous â€subpoena power†really is.

Know what I’d like to see? I’d like to see Jon Tester waltz into Abu’s office on the first day of the new congress and just start taking stuff. All the files, all the computers. Make Abu try to stop him. Enough talk. Time for action.

Let the executive whine about separation of powers- after the responsible adults have taken custody of the evidence.

I would think the clock has run out by that point. But I also think the court never issues that ruling.

I think they call it a political question, and say that if the Congress is dissatisfied with executive compliance, its remedy is impeachment, and that the courts are not in the business of inventing more convenient remedies for politicians too squeamish to use the ones they’ve got.

Besides doing his own homework, Gonzales likely is subscribing to the view that Sen. Leahy is going to revisit the subtopic of signing statements, the Senator having taken the extraordinary step in June 2006 of entering a formal statement in the Judiciary Committee record decrying Gonzales’ having sent a mid level person without answers to testify instead of the AG’s attending in person. Additionally, DoJ probably is readingOfTeaLeaves rightly in guessing that the wiretap business is a liability in the court of public opinion where consistently supermajorities of polled voters objected to the practice.
Recently I read of the early Bush-I DoJ, as well; and there is an interesting comparison of how OLC developed in each administration, though I find many more dissimilarities between that administration and Bush-II’s than this one parallel might suggest. In Bush-I when the Iran Contra issue was fizzling in 1989 there was a Barr memo setting the stage for unitary executive theory; and in Bush-II there were the Bybee-Yoo constructs to respond to the need to mount an instaDefense against stateless terror entities. Recently I have read OLC has ameliorated its harshness; clearly the B-Y duad has departed, both working on the west coast at present. But I also see the DoJ IG announcement as attempted favorable publicity for the lameDuck show which will be full of similar sops. Possibly the most difficult issue for this administration has to be the B-Y theory as applied to maltreatment of prisoners; the history tomes written will be devastating to this administration years after it is past; my own sense of the recent elections was this is the single issue which made the a majority of voters uncomfortable in supporting Republicans, opening the way for people to consider the negatives in other executive gambits.

Senator Leahy’s statement should be published in toto in the NYT, as they used to do in the good old days with anything as important to the operation of good government that this represents. Wonderful discussion.