Category Two Documents

Good thing Rove resigned and finally distracted me from my FISA focus, huh? And in the process of looking up something relating to Rove, I noticed these two letters between Conyers and the RNC (and the RNC’s lawyer) regarding documents it won’t turn over. Most of these documents fall into "category one;" that is, documents the White House has asserted privilege over. But there’s a separate "category two" that attracted my attention:

The White House describes these documents, which the Committee understands to include hundreds of pages, as relating to communications with or among White House officials concerning candidates for U.S. Attorney positions in the Central District of California, the Middle District of Tennessee, and the District of Montana. The White House does not claim executive privilege over these documents, but instead maintains that they "fall outside the Committee’s investigative authority" because they relate to the President’s purportedly "constitutional prerogative" to nominate U.S. Attorneys, and directs you not to disclose them without a further demonstration of relevance by the Committee. [my emphasis]

Let’s take these out of order, starting with Montana.

Montana, you see, never did need a replacement candidate. Bill Mercer was, of course, playing roles at main DOJ at the same time as he was (and is) US Attorney for Montana. But he never quit. And when it came time to go before the Senate to be confirmed as Associate Attorney General, he balked, withdrawing his nomination just days before the Senate Judiciary dealt with it. When Mercer balked in such a fashion, I noted,

As I said, Bill Mercer hasn’t really been focused on day to dayevents in Montana for several years, since he first got a no-nominationacting appointment at Main DOJ. But one thing has been occurring–ornot occurring–in Montana. The biggest beneficiary of Jack Abramoff’slargesse, [former Montana Senator] Conrad Burns, has somehow managed to avoid the increasingscrutiny that John Doolittle and Bob Ney received. There has long beena question of whether Mercer has retained his appointment in Montana inan effort to protect Burns, and now it appears he can do little butthat.


Trust me–the Administration felt it important to retain Mercer outin Montana. It’s something Gonzales himself emphasized in his statementon Mercer’s resignation:

Gonzales said in a statement that he was "very pleased that thedepartment will continue to benefit" from Mercer’s talent in Montana.

Itsure sounds like they were worried they’d have to forgo Mercer’sservices in Montana, and therefore decided to sacrifice him at Main DOJ.

In other words, the discussion of whom to replace Mercer with may well have been as much about how to protect Conrad Burns (and the larger Abramoff mess) as much as it had to do with finding a nice Republican hack to serve as Montana’s top law enforcement officer.

  1. freepatriot says:

    thats a real fancy statement, and it doesn’t mean a FUCKING THING

    â€fall outside the Committee’s investigative authority†because they relate to the President’s purportedly â€constitutional prerogative†to nominate U.S. Attorneys, and directs you not to disclose them without a further demonstration of relevance by the Committee

    last I checked, the presnit was an employee of the United States Government

    there ain’t anything that is done by the United States Government that falls beyond Congress’ oversight authority

    if these people were paid a wage by the federal government, their actions fall within the oversight authority of Congress

    if these people did any business inside a federally owned building, their actions fall within the oversight authority of congress

    if these people ever TALKED to a Federally employeed person, during the course of that person’s job duties, those actions fall under the oversight jurisdiction of the Congress

    if george bush wants to create a special area where the presnit can do whatever he wants outsiide the law, then trhe repuglican party has yet to see the bottom of their current plight

    somebody better splain to some repuglican congresscritters that we’re planning on using george bush’s newfound presnitential powers AGAINST repuglicans soon

    I wonder how scalia, alioto, tomas and roberts are gonna feel about the â€Illegal Enemy Combattant†law when they’re rotting away in GITMO

    what goes around comes around

  2. Anonymous says:

    Rove will sort out in due time. It is the right thing to do to get back to the critical aspects of the situation, which are the nuts and bolts of retrieving the Constitution, Department of Justice and rule of law. Most everything that matters will shake out from that process. Impeach. Gonzales. Now.

  3. DeeLoralei in Memphis says:

    Marcy, I’m in Memphis (as the sn implies) and this may have nothing to do with Frist, since as you said, he had already decided not to seek re-election. If it was to protect Corker, from East TN it makes little sense. Because beleive me, Corker was into some dirty stuff as mayor of Chattanooga. And the RNC servers are also in Chatt. And it couldn’t be to get Harold Jr, because he is in West TN. But what is in Mid TN is Nashvegas, state capitol. And several state dems were caught up in the Tennessee Waltz scandal, before the 06 elections. (only 1 rep) and most of the powerful Ford machine is Memphis-centric, but he has several relatives in the state legislature. So, I’d say this might have had more to do with. or perhaps to stop the Ford machine, or to be in place for a possible frist presidential bid.

    The other reason I could think to place a â€known Bushie†in Nashvegas would be in case there was an investigation of a Rep, say in MO or AR, and the USA had to recuse themselves. Then having a loyalist in nearby to step in, would give all the apperance of propriety, whilst still insuring and ensuring the best outcome for the republicans.

    See, now I’ve gone all tin-foil-hatty. These people make me teh crazy.

  4. pseudonymous in nc says:

    thats a real fancy statement, and it doesn’t mean a FUCKING THING

    You’d assume that the Youngstown test would apply: Congress has an interest because it created the structure for appointments of US Attorneys. After all, it was the sneak PATRIOT revision that tried, under the table, to create legislative precedent so that Congressional oversight might fail that test.

    but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

    Look at the force of that sentence: the Congress giveth appointment powers, and the Congress can take it away.

    But it’s a ’use it or lose it’ situation, to some extent: unless the H/SJC take it to court — with all the risks that entails with the DC Circuit and SCOTUS — it becomes a de facto power grab.

    there ain’t anything that is done by the United States Government that falls beyond Congress’ oversight authority

    Well, there are enumerated executive powers that offer fewer inroads to exert oversight: pardons, recess appointments. And then there’s the whole murky area of C-in-C powers, which Yoo and company loved as a means to evade oversight.

  5. EW Fan says:


    Sometimes a cigar is just a cigar. Morford is clean. Nashville has nothing of substance going on that the GOP cares about. Vines leaving was just office politics, and he faced an employment lawsuit for age discrimination — he pushed out some older, less productive attorneys. I think the Morford appointment is less about cover and more about an internal war within DOJ. The USAs were outraged at what was going on and, to quell the mutiny, AGAG (or, more likely, the White House) felt compelled to pick a career guy. Look at Morford’s work in Michigan: He investigated an AUSA who wrongly convicted a defendant on terrorism charges. Morford prepared a report and, ultimately, asked the court to overturn the conviction. Not exactly what you’d expect were he there to cover for the department. As to why it took so long to replace Vines with a permanent USA, look at the earlier documents. Morford had asked to be nominated for the permanent post. Of course, he’s not from Nashville, so he’s got no local political support. That must have put McNulty & Co in a bind, as they surely had Senator preferences to deal with, too. Long story short, Morford is the odd man out, but for the right reasons. We should be asking how the hell he got tapped to be DAG. There’s sure to be a real story there.

  6. Anonymous says:



    I had long assumed that Morford was clean–for many of the reasons you state. The first thing that made me look twice was this request.