The Significance of the “Official Duties” Claim

Here’s how Dana Jill Simpson describes Karl Rove’s involvement in the Siegelman prosecution.

What I understood, or what I believed Mr. Canary to be saying, was that he had had this ongoing conversation with Karl Rove about Don Siegelman, and that Don Siegelman was a thorn to them and basically he was going to — he had been talking with Rove. Rove had been talking with the Justice Department, and they were pursuing Don Siegelman as a result of Rove talking to the Justice Department at the request of Bill Canary.


[After the prosecution launched by Alice Martin was dismissed in 2004] Bill Canary and Bob Riley had had a conversation with Karl Rove again and that they had this time gone over and seen whoever was the head of the department of — he called it PIS, which I don’t think that is the correct acronym, but that’s what he called it. And I had to say what is that and he said that is the Public Integrity Section.


Q About what?

A About Don Siegelman and the mess that Alice Martin had made and it was my understanding in that conversation after that conversation that there was a decision made that they would bring a new case against Don Siegelman and they would bring it in the Middle District,


Q Okay. And did Rob give you the name of the person at — I’m just going to call it Public Integrity — that he thought he understood Karl Rove had spoken to?

A No, he said it was the head guy there and he said that that guy had agreed to allocate whatever resources, so evidently the guy had the power to allocate resources, you know.

Q To the Siegelman prosecution?

A Yes. And that he’d allocate all resources necessary.

So, in sworn testimony, Simpson claims that, sometime before November 2002, Karl Rove had spoken to DOJ and–"as a result of Rove talking to" DOJ, they were pursuing an investigation of Don Siegelman. And then, after the first case against Siegelman had been dismissed in 2004, Rove again spoke with DOJ–with the Public Integrity Division specifically, probably Noel Hillman from the description–and got reassurances that PIN would "allocate all resources necessary" to a second Siegelman prosecution. Rove’s second conversation may have also led DOJ to conduct the second investigation out of the Middle District of AL, which meant they had a marginally competent–but political loyal–USA conducting the case and they had a judge with a grudge to settle against Siegelman.

Now, Michael Mukasey appears to believe that at least one of those conversations amounted to sharing evidence with DOJ of an alleged crime, which DOJ then independently decided had merit.

Mukasey: I don’t see publicizing the source of an allegation if the allegation turns out to be true.

So to take Mukasey’s charitable view towards Rove’s alleged actions in this matter, Rove went to DOJ in 2002 and tipped them off to a potential crime, then went back in 2004 and made sure the division investigating that crime devoted enough resources to the case.

Taken in that charitable light, neither of those two actions are necessarily illegal. In the first, Rove is basically serving as a tipster–a good citizen (ha!) alerting the authorities of a potential crime. In the second, he is serving as an executive branch official making sure that an executive branch agency allocates resources in the way that the Administration wants it to to.

Which–again, looking at it in the most charitable light–would not be a problem, except for two things. First, there’s the reason behind the actions, as Simpson describes it:

Because Rob kept saying, I want Don Siegelman not to run. They were talking over each other in that particular — I don’t want to face — we don’t want to face Don in running again in the future.

Rove conducted those actions to make sure that Don Siegelman would not run for Governor of Alabama.

Again, that would not necessarily be a problem–dirty politics, sure, but if Siegelman really had done what they alleged he had, then it’s fair for a politician to make sure that a competing politician’s dirty laundry gets aired.

Then there’s the other problem. On Wednesday, the White House Counsel wrote a letter to Congress claiming those activities were within Rove’s official duties as Senior Advisor to the President.

We have been further advised that because Mr. Rove was an immediate presidential adviser and because the Committee seeks to question him regarding matters that arose during his tenure and relate to his official duties in that capacity, Mr. Rove is not required to appear in response to the Committee’s subpoena. Accordingly, the President has directed him not to do so.

According to Fred Fielding, Karl Rove’s "official duties" as Senior Advisor to the President included channeling political opposition research on a political figure from Republican operatives to the Department of Justice so as to make sure that political figure would not run for office again. In addition, Fielding is claiming that Bush (or someone else with the authority to decide what Rove’s "official duties" were) decided the appropriate person to tell DOJ officials how to allocate resources was the head of the Office of Political Affairs. Further, Fielding is suggesting that it was in Rove’s "official duties" to make such resource allocation decisions with the goal of making sure particular political figures did not run for office again.

Fred Fielding has just claimed that Bush intended his Senior Advisor to dedicate his government-salaried time and direct others to direct government resources to make sure particular political figures did not run for office. Further, Fielding just claimed that Bush intended his Senior Advisor to serve as a channel for opposition research from political operatives to DOJ.

All that stuff might well have been perfectly legal, until Fred Fielding claimed that Rove was doing them in the course of his "official duties." Once Fielding claimed they were part of Rove’s "official duties," though, they became crystal clear violations of the Hatch Act, which prohibits the use of government resources for political ends. Fred Fielding just proved the Hatch Act argument we’ve been trying to make for over a year–all with that tidy little assertion that Rove’s actions in the Siegelman affair were part of his "official duties."

Now, as we reluctantly concluded yesterday when we were discussing this, these are probably just civil Hatch Act violations, not criminal ones. And since the penalty for a civil Hatch Act violation is termination, there’s no way we can hold Rove accountable on these terms (though it still seems worthwhile to make the case).

Not so some other Rove actions that would have been the subject of yesterday’s hearing, though. As I pointed out during the negotiations leading to this hearing, HJC had put Patrick Fitzgerald’s QFRs in their "politicized prosecutions" file–most likely because Fitzgerald alluded to information that latter came out in trial: the Chicago machine claims it was working with Rove to get Fitzgerald fired to prevent the Rezko/Kjellander prosecution.

I also can’t help but wonder whether Karl wants to limit testimony to Siegelman because of something he noticed on HJC’s website. HJC has put PatFitz’s QFRs right there alongside all the material on politicized prosecutions. The only thing PatFitz mentioned regarding politicized prosecutions had to do with the revelations that have since come out in the Rezko trial–revelations that put at least 3 people, some of them solidly corrupt Republicans like Turdblossom, on the record with hearsay evidence about Rove working to fire PatFitz. And since Rove has already sent his BFF Michael Isikoff out to figure out what evidence there is against him, it sure seems like Rove doesn’t want to testify about the conversations he had with Bob Kjellander about firing Patrick Fitzgerald.

One of the allegations that Rove would have been asked about, had Fred Fielding not given him a way out of testifying, is that he told Bob Kjellander that he would get Patrick Fitzgerald fired so as to scuttle the investigation into Kjellander himself. Now, Rove claims that he did no such thing.

But Robert Luskin, Rove’s attorney, today issued an unequivocal statement about all of this to the Tribune on behalf of Rove, former deputy chief of staff to President Bush, architect of Bush’s presidential campaigns and a private consultant in Washington now.

"Karl has known Kjellander for many years,” Luskin said, "but does not recall him or anyone else arguing for Fitzgerald’s removal. And he (Rove) is very certain that he didn’t take any steps to do that, or have any conversations with anyone in the White House — or in the Justice Department — about doing anything like that.”

Rather, Rove claims "he does not recall" having conversations with Kjellander about firing a prosecutor to affect the direction of an active criminal investigation. As we know with Karl and his faulty memory (ha!), "don’t recall" usually remains operative only until the evidence to the contrary appears.

In other words–regardless of whether we ever find evidence from within DOJ that Rove worked to get Fitzgerald fired (one might assume that Rove protege Kyle Sampson’s admission that he himself proposed firing Fitzgerald in early 2005 to be evidence supporting the case), at the very least Rove would have to testify about why three people, including some machine Republicans, testified that Kjellander had told people Rove was working to have Fitzgerald fired.

In other words, one of the alleged activities that–in a bid to help Rove avoid testifying yesterday–Fred Fielding just asserted was part of Karl Rove’s "official duties" while he was at the White House was discussing with Republican targets of corruption investigations the possibility of firing the prosecutor leading that investigation to have the investigation stopped.

Fred Fielding just asserted–presumably with the approval of Bush or someone else with the authority to declare what Rove’s "official duties" were–that it was Karl Rove’s job when he was in the White House to obstruct criminal investigations.

Now, we’ve known that this Administration has been in the business of obstructing investigations for some time. But up until Wednesday, no one ever claimed that the Administration believed such obstruction fell within its official duties. Glad to see Fred Fielding clear that up.

It would take some doing to go from the assertion that the White House Counsel believes it was among the "official duties" of the Senior Advisor to the President to obstruct criminal investigations to actually prosecuting not just Rove, but with this assertion, whoever it is that believes obstruction could be among a Presidential aides "official duties" as well. But if we get a new DOJ or if Congressional Democrats somehow manage to enforce their prerogatives, then Fred Fielding’s assertion on Wednesday that everything Rove would have testified about yesterday fell within his "official duties" may some day cause the White House a whole slew of additional trouble. Before, it was just Turdblossom doing what he does, on his own. But as of Wednesday, Rove’s actions just got official sanction from the White House.

  1. AlbertFall says:

    Masterful summation, EW.

    I think Rove’s actions ALWAYS had official sanction from the White House, including outing Plame.

    I like your thought that they have made “admissions against interest” that prove commission of a crime, although civil Hatch Act violation is small beans compared to say, obstruction of justice and treason.

    If the GOP was not self-destructing so well, I would have high blood pressure over the Dem’s not going on offense with all this.

    At a minimum, I think refusal to testify should give the Dems the political ammunition to say, “He is trying to hide something, and we should feel free to assume the worst.”

    • behindthefall says:

      If the GOP was not self-destructing so well, I would have high blood pressure over the Dem’s not going on offense with all this.

      At a minimum, I think refusal to testify should give the Dems the political ammunition to say, “He is trying to hide something, and we should feel free to assume the worst.”

      I wish I could be sanguine, too. Until the Dems and the MSM wake up to the slow train wreck we are trapped in, I have little hope. Very, very willing to be shown to be wrong, though.

  2. drational says:

    OT but related to yesterday’s Anthrax discussion:
    Recall the Anthrax scare timing and check out this para from Scott Shane’s pre-review of Jane Mayer’s new book on the “Dark Side”.

    “The Dark Side” also describes a frightening false alarm at the White House on Oct. 18, 2001, when, it says, an alarm went off on a machine designed to detect biological, chemical or radiological attacks. Among those who believed they might have been exposed to a pathogen was Vice President Dick Cheney, the book says.

  3. SparklestheIguana says:

    But if we get a new DOJ…

    What if PatFitz were appointed AG in an Obama administration? Does that mean all this would go nowhere? Of course he’d have to recuse himself. But it sure would make things interesting.

    My feeling about Obama is that he has no stomach to go after these malfeasers after January 20, 2009.

    • Leen says:

      How can this nation truly move forward without accountibility? Do they want a nation of ghost or renewed spirits?

  4. earlofhuntingdon says:

    Bush would disagree with your premise about what Fielding’s letter means. He is likely to say, yes, he did give Rove authority to pursue matters he thought were of national importance and in which the President’s office should be directly involved. In this case, that meant he responded to “good faith” allegations of questionable or illegal conduct among state officials in Alabama, a state whose officials Karl knew well, and to follow up with the DOJ to make sure that it was devoting resources in the manner that the President, who takes matters involving political corruption seriously [yes, I know], had directed.

    If had so authorized Karl, and it seems that he did, given the wide portfolio of matters Rove worked on, and there was any wrongdoing — or even if Congress just gets too uppity and insists on asking — then Bush need only put on his deer-in-the-headlights look and say that if Rove went off the reservation, el Presidente had no knowledge of it. In essence, the Sgt. Schultz, “I know nussink” defense. More likely, Bush will spend months saying nothing or claim that this is all a political witch hunt by a dithering Congress desperate to manufacture an issue over which to beat the GOP during the election. That yields the finely tilled and manured soil from which a presidential pardon might reasonably grow, to put all this behind us.

    Even if that doesn’t happen, Rove is in jeopardy only if he’s pinned down, under oath, and asked direct questions. His memory, like Addington’s and Yoo’s, may be spotty. That can only be taken further if a prosecution is launched and/or Rove has to repeat his answers in front of a jury, which then gets to decide whether the man with the photographic memory is lying or not.

    That’s a lot of ducks to line up. Obama has shown no inclination even to tolerate pursuing past crimes by his soon-to-be predecessor and his aides. He seems to think it would take away the emphasis from his own message of Hope and Renewal. Whatever that means to someone trying to run a messy, imperfect, public government.

  5. MadDog says:

    EW, totally OT here, but folks might want to ponder just why Junya & Co. wanted to change the order of succession to Acting Attorney General when Fredo resigned.

    And to help accomplish your pondering, one might read the OLC opinion posted yesterday entitled “Authority Of The President To Name An Acting Attorney General” constructed by that ever helpful “acting” head of the OLC, Mr. Toady himself, Steven Bradbury.

    …The Solicitor General is first in line, followed by the Assistant Attorneys General for the Office of Legal Counsel, for National Security, for the Criminal Division, and for the Civil Division. The President wishes the Assistant Attorney General for the Civil Division to act as Attorney General…

    One might wonder what was at play to have Junya go to the bottom of the deck in temporarily appointing the Assistant Attorney General for the Civil Division as Acting Attorney General instead of those folks ahead in line.

    • scribe says:

      If memory serves, at that time the statutory order of succession would have put Paul Clement (the Solicitor General) into the AG job. Bush wanted to put Peter Kiesler (who’d fixed the Big Tobacco case, had a deep knowledge of Telco law and FISA (from being deeply involved in it), argued the Hamdan appeal, lost and then was nominated to the DC Circuit) into the job as Acting AG. Kiesler’s judicial nomination was going nowhere, but he was A Loyal Bushie.
      Clement still had a lot more utility to Bush in the Sol Gen office, where he was doing all the appeals for the Government.

      • emptywheel says:

        scribe is right. They appointed Clement as acting, then reversed and named Keisler. It’s worth noting that CLement is almost certain the person who said to Sid Blumenthal not EVERYTHING BushCo has done has been illegal.

        • MadDog says:

          What is also interesting about your comment (which I remember as well), is that the date of Bradbury’s opinion is the very same day that Fredo resigned.

          If we assume that said resignation was in the works for a least a week if not more, Clemons was in, then out, and then who next was the “most loyal Bushie” and who had the fewest open and running politcal sores?

          Bradbury? Not a chance. Was dead in the water on many, many counts.

          Fisher? Same as Bradbury. Too toxic even for a “temporary” placeholder.

          Wainstein? Hmmm…I don’t know but just a swag that his deep involvement with illegal warrantless surveillance outside of FISA may have been his own toxicity.

          Which left Keisler.

      • MadDog says:

        And to help our pondering, I offer this:

        Paul Clement – Solictor General – per Wiki:

        From September 17, 2007 to October 2, 2007 when Michael Mukasey was confirmed as Attorney General by the Senate, Clement was the highest ranking official that has been confirmed to his office by the Senate; the Assistant and Associate Attorney general positions are both filled by acting appointees.

        Steven Bradbury – Acting Assistant Attorney General of Office of Legal Counsel

        Kenneth L. Wainstein – Assistant Attorney General for the National Security Division – Not really much in Wiki for this individual.

        Alice S. Fisher – Assistant Attorney General of the Criminal Divsion – again per Wiki:

        She [had] also been a long-time protégé of Homeland Security Secretary Michael Chertoff,” Vermont Senator Patrick J. Leahy said in his May 12, 2005, statement. “I am somewhat concerned, however, that Ms. Fisher is nominated for one of the most visible prosecutorial positions in the country without ever having prosecuted a case, and she brings to the position minimal trial experience in any context,” he said.

        Leahy also expressed concerns about Fisher’s “views on checks of controversial provisions of the Patriot Act and her opposition to the Act’s sunset provision; her participation in meetings in which the FBI expressed its disagreement with harsh interrogation methods practiced by the military toward detainees held at Guantanamo, and her ideas about appropriate safeguards for the treatment of enemy combatants.” Leahy was also concerned about “reports that she has had ties to Congressman Tom DeLay’s defense team” and “also [wanted] to know what steps she [intended] to take to avoid a conflict of interest in the Department’s investigation of lobbyist Jack Abramoff and possibly Mr. DeLay.”

        Peter Keisler – Assistant Attorney General of the Civil Divsion – again per Wiki:

        On September 6, 2007, Keisler announced his resignation from the Department of Justice in order to “spend time with his family.” On September 17, 2007, President Bush announced that Keisler had agreed to remain at the Department of Justice as Acting Attorney General until the Senate confirmation of a new Attorney General; Bush also announced the nomination of Michael Mukasey for Attorney General at the same time. On March 18, 2008, it was announced that Keisler would be returning to his former position as a partner of Sidley Austin as a global coordinator of the firm’s appellate practice in its Washington, D.C. office.

    • earlofhuntingdon says:

      That would an odd pre-occupation, except for this administration. Cheney’s network quickly obtained control over the appointment process, even before he and Bush moved into the Oval Office. BushCheney has shown considerable talent in manipulating the “temporary” and “acting” categories to put malleable people in charge of government units, when the official process would delay or preclude putting those same people in charge.

      Regarding the DOJ, in particular, institutionally, it holds the keys to the the hall passes Bush and Cheney need to avoid detention: torture, rendition, illegal prisons, illegal domestic spying, politicization of itself and its prosecutions, ad nauseum. Appointment to its ranks would be especially closely controlled, especially after such a staunch conservative as Comey, the DOJ’s number two, couldn’t be relied on when it counted.

      Normally, the DOJ’s own management structure, similar but less rigid than a military chain of command, would name officers by rank and name those who would take over when a superior is unavailable. Bush’s motivations may have been crass, self-protective ones, unrelated to the efficient or prudent running of the DOJ, but as President he would have the authority to name temporary office holders until the normal appointment and/or confirmation process was completed or effectively circumvented.

      • MadDog says:

        I agree that DOJ appointments were run by the Cheney/Addington/Ed McMahon…oopsie *g* Ed Meese cabal.

        Nobody, at least at the upper levels of DOJ, was getting in the door without the blessing of this Unholy Trinity.

  6. earlofhuntingdon says:

    You’re conflating several things here that seem well connected. I think you’re right, but tying those facts to your characterizations in order to prove illegal conduct will take considerable work.

    Among other things, Luskin’s comments are his. They aren’t Rove’s until Rove says them, and then they’re not very useful until he says them under oath. He’s probably one of the toughest witnesses any prosecutor has ever handled. Didn’t it take four trips to the grand jury in the Plame case before Karl finally admitted certain facts, and then only because he appeared to have learned that Fitz knew them from another source?

    Obstruction? What obstruction? Just trying to wake up a slow bureaucracy reluctant to look at its own bad apples.

    Kjellander? Just bragging about his street cred inside the White House. It’s a guy thing.

    Fire Fitzgerald? The DOJ chose to put him on its own watch list. A prosecutor would have to show that happened only because Rove directed them to do it.

    As a direct hire by the President, paid out of an EOP appropriation, the Hatch Act assumes playing politics is included in Rove’s job description. He didn’t properly bill all his expenses to the GOP or the right state GOP account? Billing error. Sorry. No criminal intent. Won’t do it again. Show me how much money it was and it’ll be paid. What else you got?

    I don’t agree with those perspectives, I agree with yours, but we need facts and a DOJ that wants to get them.

    • Citizen92 says:

      “I don’t agree with those perspectives, I agree with yours, but we need facts and a DOJ that wants to get them.”


      One of the reasons I was so happy yesterday to find the Swedish TV interview with Rove. I was led to believe by “Machiavelli’s Shadow” that Rove and Bush were on bad terms. Turns out, in fact, no. Rove says he speaks to Bush every “few” days and has lunch with him every “two weeks.” Even more interesting was that Rove gave this interview on July 8 – days before he skipped out on the Judiciary subpoena.

      Any evidence of what Rove and Bush talk about? Well, no. But that was still an unusual admission of fact and time – very unusual for Karl.

  7. Citizen92 says:

    The concept of “Qualified Immunity” for Presidential aides has stuck in my mind for some time. You might recall the case of the “Denver Three” where three taxpayers were thrown out of a government-funded Presidential Social Security event in March 2005, supposedly by “overzealous volunteers” attired to resemble Secret Service agents. As the case dragged on, we learned those “overzealous volunteers” were actually working under a policy established by an official White House advance manual.

    Along the way in Weise v. Casper, the defendants attempted to argue “qualified immunity.” The court struck it down, but they appealed – not sure what happened. Anyway, “qualified immunity” had its roots in another Nixon-era case [Harlow v. Fitzgerald 457 US 800 (1982)] involving Nixon’s aides and Constitutional rights.

    I wonder if the White House will eventually try to shelter behind “qualified immunity” for Rove (in lieu of and EP claim) – only because they’ve tried to use it before.

    A few relevant items:

    Qualified immunity is a doctrine in U.S. federal constitutional law which shields government officials from liability for the violation of an individual’s federal constitutional rights. This grant of immunity is available to state or federal employees performing discretionary functions where their actions, even if later found to be unlawful, did not violate “clearly established law.” The defense of qualified immunity was created by the U.S. Supreme Court, replacing a court’s inquiry into a defendant’s subjective state of mind with an inquiry into the objective reasonableness of the contested action. A government agent’s liability in a federal civil rights lawsuit now no longer turns upon whether the defendant acted with “malice,” but on whether a hypothetical reasonable person in the defendant’s position would have known that her actions violated clearly established law.

    As outlined by the Supreme Court in Harlow v. Fitzgerald, 457 U.S. 800 (1982),[1] qualified immunity is designed to shield government officials from actions “insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”


    Supreme Court opinion on Harlow v. Fitzgerald –…..8;page=800

    With a teaser from the case fact statement:

    In this suit for civil damages petitioners Bryce Harlow and Alexander Butterfield are alleged to have participated in a conspiracy to violate the constitutional and statutory rights of the respondent A. Ernest Fitzgerald. Respondent avers that petitioners entered the conspiracy in their capacities as senior White House aides to former President Richard M. Nixon. As the alleged conspiracy is the same as that involved in Nixon v. Fitzgerald, ante, p. 731, the facts need not be repeated in detail.

    Respondent claims that Harlow joined the conspiracy in his role as the Presidential aide principally responsible for congressional relations. 1 At the conclusion of discovery the [457 U.S. 800, 803] supporting evidence remained inferential. As evidence of Harlow’s conspiratorial activity respondent relies heavily on a series of conversations in which Harlow discussed Fitzgerald’s dismissal with Air Force Secretary Robert Seamans. 2 The other evidence most supportive of Fitzgerald’s claims consists of a recorded conversation in which the President later voiced a tentative recollection that Harlow was “all for canning” Fitzgerald. 3

    Disputing Fitzgerald’s contentions, Harlow argues that exhaustive discovery has adduced no direct evidence of his involvement [457 U.S. 800, 804] in any wrongful activity. 4 He avers that Secretary Seamans advised him that considerations of efficiency required Fitzgerald’s removal by a reduction in force, despite anticipated adverse congressional reaction. Harlow asserts he had no reason to believe that a conspiracy existed. He contends that he took all his actions in good faith.

    Am I entirely off the mark, as usual?

  8. bellesouth says:

    Not totally off target but … birminghamnews is reporting.

    U.S. Attorney Alice Martin’s office is facing allegations of misconduct in the case of a Huntsville defense contractor that was dismissed seven days into trial last year.

    Henry Frohsin, attorney for Axion Corp., said Thursday he has filed a complaint with the Justice Department’s Office of Professional Responsibility, the watchdog that investigates federal attorneys for wrongdoing. It reports directly to the attorney general, the highest-ranking federal law enforcement officer in the country.

    “We have filed a complaint,” said Frohsin, of the Birmingham office of Baker, Donelson, Bearman, Caldwell & Berkowitz. Frohsin said he was told by the Justice Department that an investigation has been started.

    Martin, U.S. attorney for the Northern District of Alabama, said she can’t respond to the complaint because Frohsin hasn’t sent her a copy, that her office has been the unsuccessful target of earlier complaints and that she is sure her side will again prevail.

    Axion Corp. was ruined by a four-year investigation into Alex Latifi, the Iran-born U.S. citizen who owns the firm that made a small metal part for military helicopters. He was charged with violating arms-export laws by sending a drawing of a military helicopter to a prospective Chinese subcontractor.

    The government’s case collapsed swiftly after it was shown the plans are on the Internet, the main witness had stolen $13,000 from Latifi, and there was debate as to whether the Black Hawk helicopter plans were restricted from being shared with Chinese partners.

    “The thrust of our argument is these prosecutors told us they didn’t care if Alex Latifi was found guilty or not, but that they wanted to put him out of business,” Frohsin said. “They knew their case was weak, but they wanted him out of business anyway.” …

    • earlofhuntingdon says:

      Martin, of course, is heavily involved in Don Siegelman’s case.

      OPR investigations are not made public. It would have been better, if possible, had Axion’s lawyer instead or in addition to filing a complaint with OPR, demanded that the DOJ have another USA or its IG look at the prosecution as well under a theory that it violated the law in addition to being a breach of professional ethics.

      The rapidity with which the case was tossed out suggests it never held water, something any competent or uncorrupted prosecutor probably should have known.

        • earlofhuntingdon says:

          Suggesting that the government’s case was bogus or that after seven days, they had simply produced too little to avoid dismissal?

          • bmaz says:

            Suggesting that from that info you can’t tell. At least with normal prosecutors you couldn’t tell. With this crew, specifically Alice Martin, crikey I guess you have to automatically wonder though. And that is exactly the hellish problem wrought by the actions of this administration on the DOJ. Under normal circumstances, there could be a lot of reasons though; witness went south, key piece of evidence did not get admitted, an affirmative defense by the defendant was lining up to well, realized the right jury instructions were not going to be issued, judge was inferring you were up the creek and ought to bail etc. All things that just happen sometimes. Jury trials are crapshoots, and sometimes you are just rolling craps. Happens from the other side too; you just realize you are fucked and cop the best plea you can right in the middle of the trial and get the fuck out before you get killed. it just happens; crazy things all the time. It is what makes trial work so fun. And sometimes nerve wracking.

  9. SparklestheIguana says:

    I love Linda Sanchez’s big balls. (Big being a relative term here, considering that most of Congress doesn’t have any.)

    SHUSTER: But will you say “Yes, Karl Rove should go to jail if he doesn’t cooperate”?

    SANCHEZ: I personally believe, yes, absolutely. Anybody who scoffs at the law and who has committed an offense that is punishable by jail time should be put in jail.

    SANCHEZ: Absolutely. Absolutely. The claim of executive privilege and immunity is ridiculous. It’s clear that in conversations that he’s had with the U.S. attorney’s office over different matters that he was handling, the president wasn’t involved in those communications and so the claim of executive privilege is really not a valid one.

    Is there a jail cell to stuff Karl in?

    SHUSTER: And Congressman I just want to clarify there is a jail in the U.S. Capitol that hasn’t been used for sometime, but you are saying and the committee and some of your colleagues are saying tonight, “you want Karl Rove in that jail.” If he continues to refuse the demands of this committee Is that what you’re saying?

    SANCHEZ: Well, the inherent contempt powers of Congress were last used in the 1930s and there was a jail cell located in the Capitol that was utilized for that purpose. My understanding is that with some of the renovations that have gone on in the Capitol over the years there really isn’t an actual jail there.

    • emptywheel says:

      Well, enough, but she doesn’t seem to be cognizant of the fact that Rove’s EP claim came before WH had communicated to him–and therefore it is as if Rove never made that claim, bc WH never made that claim. So she may have big balls, but she has inadequate grasp of the facts.

  10. malcontent says:

    OT but I don’t know where else to ask…

    Where is Karl? Out of country is a bit broad.

    Is there an existing extradition treaty with this location?

  11. JTMinIA says:

    Ya, I dink hess in sveeden, ya.

    And, no, der extradition isn’t really a likelihood, no, since the sar-gent of the arms has no such power, no.

    • wkwf says:

      Hehe, I thought I had misheard when Shuster said “congressman”.

      Really sad that Rep Sanchez also said there’s an EP claim, when the letter she got from Rove’s lawyer clearly does not state an EP claim. One would expect her, of all people in that committee, to be on top of this distinction. This was a great opportunity to clearly state there was no EP claim, and get it out there that the media is confused about what’s going on.

      • emptywheel says:


        To be fair, I suspect that she had yesterday’s report all-but-written, based on Luskin’s July 1 letter (which did suggest there was an EP basis for the absolute immunity claim), only to have to rewrite it based on what Fred and Bob sent her yesterday, which lacked any EP claim. So she may not have gotten her head around the fact that Luskin’s argument changed in a significant way once he heard from the White House.

        And to his credit, Conyers did focus on the absolute immunity claim.

        Still, let’s get it together, folks, this is a very baseless justification for blowing off a subpoena, and you need to be able to explain it as such.

      • ltgra says:

        Just think how much easier it would be if we would adopt the Latin or spanish way of changing gender.

        Instead of congressman – congresso
        congresswoman – congressa
        congress? – congress?

  12. klynn says:


    Hopefully you have not abandoned your continuation on the Ghorbanifar Timeline?

    Before there are more cocktail napkins in our future…

    No pressure. I know tons of news and events have been happening…You just started a great work and I hope you get to finish it sometime…

  13. PJEvans says:

    maybe OT:
    White House Suffers Setback in Effort to Keep Visitors Secret

    WASHINGTON —The Bush administration was dealt a setback on Friday in its efforts to keep records of White House visitors under wraps when an appeals court refused to throw out a lawsuit seeking access to the material.

    The United States Court of Appeals for the District of Columbia Circuit ruled that it would be premature to consider reversal of a lower court ruling last December that the White House visitor logs were public records, and that the administration should stop withholding them from scrutiny by outside groups.

    The appeals court said the dispute should go back to the district court, which had ordered the Secret Service to track down the relevant documents and apply for any exemptions it considered applicable.

  14. techmom says:

    If the first Seigleman prosecution was in 2002, what year did Rove become an aide through OPR. I believe that came later ad ROve was a political director w/out gov’t responsibilities at first.
    So He should be answering Qs from when he was still paid by the Bush campaign and/or RNC.

  15. LS says:

    What is this 6/30 Executive Order all about?


    “The duties assigned to the Security Policy Board by Executive Order 12968 of August 2, 1995, to consider, coordinate, and recommend policy directives for executive branch security policies, procedures, and practices are reassigned to the Security Executive Agent.

    (b) Heads of agencies shall:

    (i) carry out any function assigned to the agency head by the Chair, and shall assist the Chair, the Council, the Suitability Executive Agent, and the Security Executive Agent in carrying out any function under sections 2.2 and 2.3 of this order;

    (ii) implement any policy or procedure developed pursuant to this order;

    (iii) to the extent permitted by law, make available to the Performance Accountability Council, the Suitability Executive Agent, or the Security Executive Agent such information as may be requested to implement this order;

    (iv) ensure that all actions taken under this order take account of the counterintelligence interests of the United States, as appropriate; and

    (v) ensure that actions taken under this order are consistent with the President’s constitutional authority to:

    (A) conduct the foreign affairs of the United States;

    (B) withhold information the disclosure of which could impair the foreign relations, the national security, the deliberative processes of the Executive, or the performance of the Executive’s constitutional duties;

    (C) recommend for congressional consideration such measures as the President may judge necessary or expedient; and

    (D) supervise the unitary executive branch.”…..630-6.html

    • techmom says:

      Looks like a new Bushie to be in charge of coordinating the security of Executive evidence for the Unitary branch. It is a hail mary for EP, IMO.

    • Hmmm says:

      Consolidating a chain of command that reaches down into the agencies, to preemptively cork any further underling leaks at this vulnerable time for W?

    • earlofhuntingdon says:

      The language is very David Addington, couched in neutral legalese, but hiding very specific expectations. The creation of Security Executive Agents is reminiscent of the White House’s appointment (last year?) of new public affairs officers — political commissars — at all government agencies, officials through which all professional staff were required to clear their public statements. “Security Executive Agents” form a new class of commissars. What that title is in the original Russian is beyond me.

      The reference to “security” should be understood as “information security”. This administration abhors releasing executive branch data, including who visits the President in the White House or the VP at the Naval Observatory, to Congress and the public, notwithstanding longstanding statutory and historical reasons for why a public government should disclose its information.

      This EO, and the creation of a special class of enforcement officials, is an attempt to prevent end-of-administration whistleblowing and leaks to Congress and the public. It’s also an attempt to tightly restrict legitimate disclosures to Congress and the public.

      In effect, this is Cheney, Addington and possibly Rove (who is in charge of the Bush Libawy, which will take control of the administration’s records after January 20, 2009) pulling up the administration’s information drawbridge as it looks forward to a siege of demands for it: from the Obama administration, from prosecutors, historians and the public.

      I suspect that something like this EO has long been planned. Cheney prides himself on his mastery of the bureaucratic mind. He would expect thousands of bureaucrats to see the approaching end of the administration as a signal that it would soon be safe to be a professional again, that being a competent professional, a loyal bureaucrat and concerned citizen are not mutually contradictory. Cheney, and the new commissars this EO places in each federal agency, is reminding them that they risk loss of job and pension if they forget that, “Loose lips, sink Cheney’s freedom”.

      Cheney intends to keep his tight hold on this administration’s data long after it’s transferred to the Bush Libawy.

      • perris says:

        I am actually expecting rove to use cheney as a scapegoat to save his hide and possibly as an excuse for bush

        I would not mind if rove turned on cheney and full expect at least that if it means saving his own hide

  16. AZ Matt says:

    If others, (ie. WH Office of Legal Counsel), knew Rove was doing Hatch Act violations aren’t they exposed to the same liability as Rove if he were still at the WH? The covering up part of this should have consequences.

    Now, as we reluctantly concluded yesterday when we were discussing this, these are probably just civil Hatch Act violations, not criminal ones. And since the penalty for a civil Hatch Act violation is termination, there’s no way we can hold Rove accountable on these terms (though it still seems worthwhile to make the case).

  17. bobschacht says:

    Jeez, an advisor to the President charged with obstructing criminal investigations. I sure hope that is prosecutable, and is prosecuted.

    Bob in HI

  18. AZ Matt says:

    From Think Progress – Taking to the lifeboats as the ship goes down

    Scott Bloch’s deputy resigns.
    James Byrnes, the second in command at the Office of Special Counsel, announced his resignation yesterday. NPR reports that Byrnes allegedly quit “in protest over the way the office has been run under Special Counsel Scott Bloch.”

  19. JohnLopresti says:

    In the OT subtopic, I have been reading Colleen Kollar-Kotelly’s stay last week of her own ruling in the ‘missing’ emails case CREW has pursued, the one in which she formerly exempted OA from FOIA. In a separate matter, I read, as well, this week a multipage memo from a research organization which listed some topics which several agencies simply categorize as do not answer when presented with a foia request, but the subject matter related to history which principals in relevant prior administrations would rather be written >50 years later. I think some of these matters are going to reach public knowledge stage much sooner, and we saw a few of those visibly this week in the Bush2 administration.

    More topically, I too have noticed Sanchez’s sometimes hasty characterizations’ promulgating inaccuracy. But I think, as ew progressively has developed in the past few days, years, there remains reviewable substance to some of the excessively daring Rove initiatives. It has been interesting to read the press showing his mode of action actually involves compromising the key officials to achieve outcomes favorable for party leaders.