Sanchez v. Mukasey on “Executive Privilege”

I wanted to look closely at the exchange between Congresswoman Sanchez and Attorney General Mukasey to see if it gets us any closer to determining whether DOJ reviewed Bush’s invocation of absolute immunity for Rove–and specifically whether Mukasey bought off on the claim that the matters in question pertained to Rove’s "official duties."

Sanchez: There are a number of different areas of questioning that I have and I’m going to try to get through them as quickly as I can. First off, in response to questioning before the Senate Judiciary Committee on July 9 about the allegations of selection prosecution of Alabama Governor Don Siegelman, you stated and I’m quoting you here, "Various avenues open for exploring those allegations, including having testimony on the subject." Given your assertion about the ability of Congress to investigate the Siegelman matter through testimony, I’m wondering, do you support Karl Rove’s decision to ignore a congressional subpoena on July 10 and refuse to testify about his role in the Siegelman matter and other matters regarding the politicization of the Justice Department?

Mukasey: As I understand it, Mr. Rove acted at the request of the President in response to the invocation of Executive Privilege. He has offered to meet with staff, he has offered to discuss the matter–

Sanchez: But he has not offered to be under oath or be subjected to a transcript, and my understanding from prior court law–and I would expect an Attorney General to understand this as well–is that if the White House wishes to invoke a claim of Executive Privilege, the witness still has to present himself before Congress and claim that privilege on a question by question basis.

Mukasey: With all due respect, that’s a matter that is still being litigated on which I can’t comment any further.

Sanchez: But prior case law has held that that is the case.

Mukasey: Don’t know that. I know that is a matter under active litigation and is I believe sub judice before a judge in–

Sanchez: So you agree that Karl Rove can disregard a congressional subpoena–

Mukasey: What I’m saying is the question of whether an immediate advisor to the President has to appear at all when a proper claim of has been made of Executive Privilege is a matter that I believe is actively before a District judge and I shouldn’t comment anymore on that and I won’t.

Sanchez: I think if you brush up on your case law, you’ll find that prior case law holds that not to be the case. And we are talking about conversations that Mr. Rove might have had with others in the US Attorney’s office in Alabama for example, in the Siegelman matter, not conversations with the President himself, I have a hard time seeing how the claim of Executive Privilege can be asserted if it wasn’t advice that was given to the President or direct conversations with the President. But apparently we disagree on that matter. [my emphasis]

Can I just say, while I appreciate Sanchez’ tone and invocation of case law, Mukasey really schooled Sanchez. Thumped her.

In Mukasey’s first description of what happens, he claims that Bush invoked Executive Privilege which–as we usually understand the term–he did not. Bush only invoked absolute immunity, without having DOJ–as Bush had it do last year when Fredo was in charge of the department–review this particular subpoena to see whether Congress’ need to interview Rove overcame Bush’s need to protect his communications with Turdblossom. Now, perhaps he’s speaking broadly–in the sense that this "absolute immunity" bullshit is based on privileges accorded the executive branch. And in his second reference to what happened, Mukasey at least stresses what’s at issue here–the claim of "absolute immunity," the claim a senior presidential advisor can simply blow off Congress entirely.

But then, "a proper claim of Executive Privilege" has not been made!

Here’s where Sanchez gets schooled. She gets distracted with something totally unrelated–whether or not Bush and Rove talked about witch hunts against Siegelman–which neither Rove nor Bush relied on (because this is not traditional Executive Privilege, it is just absolute immunity in the absence of Executive Privilege).

So, given the opportunity of getting to the question that is relevant in this matter–whether or not the matters in question were part of Rove’s "official duties"–Sanchez instead goes into an argument that was perfectly valid and devastating on July 1, when Robert Luskin claimed Bush was going to invoke Executive Privilege, but became utterly moot on July 9, when Fielding and Luskin dropped all claim to traditional Executive Privilege and instead relied entirely and solely on absolute immunity. And in the process, Sanchez ignored Mukasey’s premise–that absolute immunity must be based on a proper claim of Executive Privilege–which it was not in this case. Congratulations Congresswoman Sanchez, you blew the best opportunity we have had to pressure Mukasey into either endorsing Rove’s claim that his "official duties" pertain to making sure Governor Siegelman gets prosecuted, or to refer Rove’s imminent contempt citation to USA Jeff Taylor.

Meanwhile, while I’m certain that Mukasey schooled Sanchez in this exchange (or maybe Fred Fielding schooled both Mukasey and Sanchez), I still can’t for the life of me tell whether he has any clue about the facts of this case or whether he has reviewed it at all. I guess I’ll have to refocus on my campaign to get an answer out of DOJ Deputy Public Affairs Director Peter Carr (whose phone number is 202-616-2777) or Fred Fielding, rather than hoping that Congress can make it easy and ask these questions themselves.

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  1. druidity36 says:

    EW

    I want you to run for office. I want you to be asking these questions next time. Think of it, you could be on the BlueAmerica page and everything. I’d kick in some bucks!

    as always, the best bloggin around…

  2. Loo Hoo. says:

    Thanks for your work all day, EW.

    OT-Obama bought $5 million in ads during the Olympics:

    It’s official. Sen. Barack Obama’s campaign will be among the TV sponsors of NBC Universal’s Olympics coverage. In the first significant network-TV buy of any presidential candidate in at least 16 years, the Obama campaign has taken a $5 million package of Olympics spots that includes network TV as well as cable ads.

  3. bobschacht says:

    I’ll bet a bunch of these answers would start changing if Congress would actually use its power of inherent contempt and start locking people up.

    Until then, Rove can just sneer, “you’re a wimp, and everyone knows it”. Congress is the proverbial 97-pound weakling, and every administration official of senior rank is a 190-pound strongman who just kicks sand in their faces and steals their significant others.

    ISTM if Democrats wanted to demonstrate to the entire country that they’re a bunch of weak, spineless wimps, they could hardly have done a more convincing job than they’ve already been doing in this Congress. Are they ever going to “get” it? Do they really want this brand?

    Bob in HI

  4. MadDog says:

    So, is Conyers going to or not going to:

    1. Find Turdblossom in Contempt of Congress for failing to comply with the subpoena?

    2. Find Mumbles Mukasey in Contempt of Congress for failing to act on that and the previous subpoenas (Miers and Bolton)?

    Sure, we’ll just stay tuned to find out, but I can’t hold my breath that long.

    • Leen says:

      HOpe someone over at EW’s blog with Siegelman asks these questions with a few minor changes

  5. skdadl says:

    And is someone on Wexler’s staff going to read EW’s annotation (liveblogging thread one, I think), recognize that Wexler let Mukasey hide behind Fitzgerald’s skirts, and do something about that too?

    • skdadl says:

      PS: I should clarify (and EW will clarify better): it wasn’t Wexler who annoyed me; it was Mukasey and the way he sidled around the question. But then that is the problem. Someone has to stop his sidling.

  6. marksb says:

    EW, I don’t think I’ve asked you to run in a year…but now that the idea has once again been raised, I’d love to see you in congress asking the tough questions.
    Anyone opened a campaign committee yet?

    • MadDog says:

      I especially like this part:

      Yes, I was interviewed by attorneys from both OIG and OPR…I expect the report to be filed any day now. I expect them to conclude that there is sufficient evidence to show that former Attorney General Alberto Gonzales and former Deputy Attorney General Paul McNulty committed perjury in their statements before Congressional committees and investigators…

  7. Loo Hoo. says:

    Hey, Dan Abrams just this minute said that the definition of “exclusive” sure has become…(something) akin to what EW said last thread.

  8. kspena says:

    OT-Re earlier thread:
    Bmaz, the interview where Jane Mayer talks about the ‘drumbeat’ to do something about ‘war crimes’ is with Steve Clemons at minute 12:30. She talks about the penalties later at 27:00.

    http://www.newamerica.net/even….._dark_side

  9. pastfedup says:

    EW, you really are some kind of genius, you continualy amaze me with your ability to unravel this gobbledygook and cut to the chase. My brain doesn’t work that way, I am more the direct type. But I have my pitchfork at the ready, just awaiting the word. If the citizens ever wake up to all this, I think there will be a run on pitchforks, and their price will rise dramatically. Just give us the word!

  10. perris says:

    man I cannot say this often enough, it does not matter one iota what the court says, it does not matter one iota what case law might exist, it does not matter one iota what the supreme court says

    it matters not one iota

    all that matters is what congress is going to do about it, and since they will do absolutely nothing then all the priviledge this president claims DOES INDEED EXIST

    no matter what our understanding of past court rulings, no matter how specific the constitution or existing law might be

    I will say the following and it is brutally obvious once told, yet not realized until spoken;

    “congress is powerless unless they use their power”

    bing

    the president has NO POWER WHAT SO EVER THAT CONGRESS DOES NOT THEMSELVES GRANT

    none

    all they need to do is the following to the president;

    ‘comply or be removed from office”

    the supreme court cannot stop them, no law can stop them, no precident, nothing

    “comply or be removed from congress”

    and until they do that the president has every single bit of power he claims

    if he claims he can ignore the election and remain president, and congress does nothing about it, then unless there is a revolution the president can indeed hold office ad infinitum

    no udnerstanding of law maters, all that matters is what congress will do about this despot

    “congress has no power unless they use their power”

    “the president has all power unless congress uses their power to stop it”

    • lllphd says:

      perris, that’s pretty much the bottom line, is it not?

      when i called the HJC offices last week to ask simply for an explanation as to just why they would not move forward with impeachment hearings, the very nice intern (no doubt) said it was because the senate did not have the votes to remove them from office. uh, so? you don’t conduct the hearing because the other body won’t do its job? so you blow yours off? then he – nicely – said it would freeze congress and they couldn’t get any legislative work done. uh, again, so? like you’ve done so much in the 110th what with all the repugs sagotaging and hobbling your every step (not to mention tripping all over yourselves to out-repug the repugs; nope, didn’t say that), and that constant veto threat, yeah, i can see why you wouldn’t want to slow down. actually, truth be told, really lit in to the poor guy (with appropriate apologies for unloading on him when he has no power or say, but …he did answer the phone). had the leadership truly understood how they we won back congress, they would have made these abuse of power issues a top priority and aggressively exposed them, forcing each and every member to step up to renouncing the scumbags with their votes to impeach, and THEN you might have gotten some real work done. work that would stick and not be burdened with all the repug nonsense. but instead here we are, stuck in the middle with the bush mafia.

      he then had to beg off, no time. but he was very polite, i have to say, and truly wanted to satisfy my query. but that appears to be the talking points, folks. (and for the record, that was a helluva lot further than i got with nancy pelosi’s office; so much for accessibility.)

      yup; the prez has as much power as congress will concede. the dems are showing all the signs of learned helplessness. could be indicative of being tortured all these years with conservative constitution deconstruction and reality fixing. still, hard to sympathize with the ones who have bailed.

      • perris says:

        I said from the very start, the democrats have to deal with the republicans, offer them unchallenged seats, offer them pork, offer them whatever it takes to get rid of this despot BEFORE THE ELECTIONS

        this IS VERY IMPORTANT

        they need to march into the republicans office, make sure they are NOT WIRETAPPED, and they need to say the following;

        “obama WILL be president after the next election, ALL POWER THIS PRESIDENT HAS AMASSED WILL BE TRANSFERRED TO OBAMA, we WILL politisize ALL OFFICES just like this president did, WE WILL MAKE CERTAIN YOU ARE OUT OF OFFICE NEXT ELECTION, we can do this simply by doing what karl rove has done, prosecute you whether or not you comitted any crime, karl rove according to the president does not even have to answer for that crime and neither will we UNLESS YOU HELP US PROSECUTE HIM

        the president MADE IT PERFECTLY LEGAL TO SPY ON YOU AND YOUR COLLEGUES, we as the majority party WILL use this now legal power to listen on ALL your conversations and we WILL prevent you from beng producte

        THIS IS THE POWER YOU HAVE GIVEN A PRESIDENT

        now, you either deal with us now or suffer the consequences after the election

        WE ARE GOING TO REMOVE THIS DESPOT FROM OFFICE and you ARE going to help us

        if not, you will be removed from your seat of power and we will make CERTAIN you will not profit in retirement”

        now, which congress criters have the balls?

        • lllphd says:

          yeah, that little speech would certainly have gained their attention, if not their respect.

          the bottom line problem, of course, is that so many dems are in bed with these guys. they’ve all been drinking at the same trough, and so the repugs have too many goods on them.

          which is precisely why this feels just like almost the entire congress is selling the country down the river.

          scary times. i recently told my daughter that i lived through the kennedy assassinations, was in memphis when king was shot, watched all the riots and police state behaviors through the 70s, watched the reaganites make mincemeat of our entire governmental process, and i swear i have NEVER been so petrified for our country as i have been the past seven years.

          what you said, perris; but i think it will be US who will have to say it directly to each of the congressional reps in the fall, and ever after, in order for there to be any real changes.

          if nothing else, bush has succeeded in getting this citizenry very vocal and involved in its government again. that in itself is a very good thing.

          ok, folks, the aclu got the cia torture memos. wonder what marcy will have to say about it.
          http://rawstory.com//news/2008….._0724.html

  11. JohnLopresti says:

    I saw some of the video, very pixellatedly grainy it was. I, too, thought it was Wexler, who quickly pinned Mukasey with inventing a new privilege, and Mukasey looked as if abandoning the Fielding provided training, but the interchange involved unceremonious interruptions ending in Mukasey retrenchment once terminology suited the rehearsal. I have seen this performance in deposition training many times, and Mukasey was fairly deft once he discovered that quickly uttering several concepts lined with keywords dulled the initial accuracy of Wexler’s interrogatory. Then HJC’s feed ebbed and other responsibilities beckoned a share of my available time. I will read more of the liveblogs Real Soon Now.

  12. trianarael says:

    “Government is actually the worst failure of civilized man. There has never been a really good one, and even those that are most tolerable are arbitrary, cruel, grasping, and unintelligent. –H. L. Mencken

    “As democracy is perfected, the office of President represents, more and more closely, the inner soul of the people. On some great and glorious day the plain folks of the land will reach their heart’s desire at last and the White House will be adorned by a downright moron.”—H.L. Mencken, The Baltimore Evening Sun, July 26, 1920

  13. Helen says:

    Mukasey: With all due respect, that’s a matter that is still being litigated on which I can’t comment any further.

    Well, didn’t he just put the D in disingenuous. IIRC the reason that this is being litigated right now is that it was he, Attorney General Mukasey, who refused to do his job and enforce the subpoenas against Miers and Bolton which forced the “matter” into litigation.

    • Leen says:

      I thought this exchange made it crystal clear how Mukasey is more than willing to be part of the team who have been changing the rules midstream to obstruct justice.

  14. masaccio says:

    From Democratic Underground:

    Cass Sunstein, an adviser to Barack Obama from the University of Chicago Law School, cautioned against prosecuting criminal conduct from the current Administration. Prosecuting government officials risks a “cycle” of criminalizing public service, he argued, and Democrats should avoid replicating retributive efforts like the impeachment of President Clinton–or even the “slight appearance” of it. Update: Sunstein emailed to emphasize that he also said and believes that “egregious crimes should not be ignored.”

    I put up a diary on Oxdown, before it collapsed, arguing that progressive blog readers and writers have some leverage with Obama, and should use it to demand accountability.

    We are not going to get anything but the shaft. I’m ready to abandon Obama and focus on electing more and better democrats.

    • Loo Hoo. says:

      Except that we have no choice for this presidential cycle. I’m unhappy with Obama on FISA and his religion/state issues, but proud of him on so many issues including his behavior overseas. I ordered goodies from his campaign to take with me to Panama. I’m thinking the Panamanians will love his campaign buttons and stickers. Totally with you on electing new and better democrats.

      • masaccio says:

        I hope Obama gets elected. I’m just not inclined to throw money at him, or work for him. My money and efforts will go to Vic Wulsin and three or four other candidates who will support progressive issues.

        What is Obama going to do to advance progressive issues to justify your money and efforts? As noted, it doesn’t look like he will move on accountability, an issue of great importance to me. Electing progressives is more important in the long run.

        • Leen says:

          Not with Cass Sunstein as an adviser.

          Could John Dean, Jonathon Turley or Bruce Fein become advisers for Obama? They talk Accountability all of the time.

    • bmaz says:

      There were some real unexpected and unforeseen bugs with the Oxdown integration. This is extremely unfortunate, I have seen masaccio’s article, and it is very good. The second Oxdown is up and going, I wholeheartedly recommend that everyone take a look at it.

    • chetnolian says:

      I think there is a need to think about things in another way.

      What has happened over the Bush Presidency has been worse than Watergate because it is about the sytematic corruption of the system.

      But Obama’s advisor is right,and Pelosi has probably been right all along,to avoid serial impeachments, because to the public, the very fact that is is happening in the depths of the legal system makes it incomprehensible. We mainly understand it, because we are kept educated by Marcy et al, but they don’t. They could understand burglary. Come to that, they could understand infidelity.

      But it is always important to look forward. What has happened is not going to be changed.

      I suggest the way to deal now, hopefully near the end of the rule of the extrme right in the US,is to concentrate on seeking undertakings from the Democrats who will hopefully be the next Administration.

      1 Demand that the President keep Party and Government operations separate, and be seen to do so.

      2 Demand a commitment to ensure the OVP is a branch of the Executive, and the junior one at that, as it always was before Barnacle Dick.

      3 Demand a commitment that in Government, starting with the DOJ, a clear unambiguous mission to serve the public in a non-partisan manner will be strongly asserted and followed through. You know I don’t think that is as difficult as you think. I suspect lots more Republican lawyers in Government than you know of are embarrassed by the current state of things.

      • masaccio says:

        We don’t agree about this. If we don’t punish the people who have violated the laws we have about government, they will come back, just like Cheney, Rumsfeld, Negroponte and a host of others.

        We can have pledges, we can create new laws, we can have a decent set of people in office for a while. None of that will stop them the next time they get into office.

        Laws that are not enforced are not laws. They’re just requests.

      • PetePierce says:

        All well and good but who do you expect to demand it since 99.99999999999% of the population of the US is unaware and could care less?

        They don’t know Josh Bolten from a bolt of lightening, FISA from a file, and many of them believe the bullshit that offshore drilling would have a scintilla to do with gas prices even if it produced a drop of oil within 20-15 years and are oblivious to the fact that we could not even take delivery of boats to drill for years (it would increase consumption of exported fuel however.

        99% of the people on the street in the U.S. could not tell you what “DOJ” is or begin to discuss any of the issues aired here and they wouldn’t know OLC from a salami on rye. That’s the reality.

        So who will do the demanding? Certainly not Congress. And Cass Sunstein is making clear that Obama has no intention of pursuing any of these issues.

        I’d expect John Bates to deliver a favorable ruling as to Bolten and Miers’ contempt case appealed by HJC who lacks the Conyers balls to implement inherent contempt given the body of his prior opinions about as quickly as I’d expect the price of gas to reach 50 cents a gallon in the US.

        • Nell says:

          So by your lights, Pete, there are only 30,000 people in the U.S. who really understand or care about these things? What contempt for democracy that shows. It also displays a failure to recognize

          – the scale of activism already demonstrated
          – the fact that for every person who takes action there are at least ten who care/understand/agree but don’t act

          It’s certainly possible to see why accountability for crimes and constitutional violations by the current regime is not an issue Obama or members of Congress would run on, when people are far more pressed in their daily lives by foreclosures, debt, health care cost and inadequacy, job loss, inflation in food and fuel prices, etc. But it’s a huge and unjustifiable leap from there to defeatist, disrespecting “sheeple” crap.

          • PetePierce says:

            I fully stand by every statement I’ve made about the degree of knowledge of the average American and their colossal indifference to what this government is doing. I can prove it on every street corner in a heartbeat, including yours. I haven’t expressed any contempt for democracy and that would be your perception not what I said.

            I said Americacans are ignorant and lazy and they’re getting the democracy they deserve. I’ve said few of them know anything aobut FISA or have a clue on those issues and they are getting the spineless Congress and lack of democracy they deserve due to their ignorance and indifference.

            I said and I stand firmly behind this statement:

            They don’t know Josh Bolten from a bolt of lightening, FISA from a file, and many of them believe the bullshit that offshore drilling would have a scintilla to do with gas prices even if it produced a drop of oil within 20-15 years and are oblivious to the fact that we could not even take delivery of boats to drill for years (it would increase consumption of exported fuel however.

            99% of the people on the street in the U.S. could not tell you what “DOJ” is or begin to discuss any of the issues aired here and they wouldn’t know OLC from a salami on rye. That’s the reality.

            I have tested this day after day and it is absolutely true.

      • Nell says:

        With all due respect, I think the public is fully able to understand the 35 articles of impeachment Kucinich laid out. Of these, a few are the most serious and most easily understood. They require impeachment hearings to compel full testimony on the extent of what was done, but there is no room for real doubt that these high crimes were committed:

        1. Lying to drive the country into an illegal, unnecessary war on and occupation of Iraq.
        2. Diverting money allocated by Congress for the war in Afghanistan to lay the groundwork for the invasion of Iraq (period from December 2001-May 2002).
        3. Spying on U.S. citizens without a warrant for political purposes.
        4. Torturing and abusing prisoners of war, and denying them the protections of the Geneva Convention.

        All of these were policies that came right from the top: Cheney and Bush. There is no reason why those two cannot be impeached after leaving office, perhaps starting a bit lower on the organization chart and working our way up.

        The excuse that “it will paralyze Congress” is complete b.s. Plenty of other business got done during the Watergate hearings and impeachment proceedings. Buy these cowards and children copies of Nixonland.

    • Leen says:

      Sunstein is clearly singing the “let’s move on bus” theme song coming out of both Dems and Repubs. They all need to get out on the streets more Americans are starving for Accountability NOW

  15. pdaly says:

    Thanks, EW for figuring out the distinction and the bait and switch: executive privilege and absolute immunity. I wish Congress and the Press were proactive in this issue and paying more attention to your website.

    I have a simple question about the following exchange today between Sanches and Mukasey:

    Sanchez: But [Rove] has not offered to be under oath or be subjected to a transcript, and my understanding from prior court law–and I would expect an Attorney General to understand this as well–is that if the White House wishes to invoke a claim of Executive Privilege, the witness still has to present himself before Congress and claim that privilege on a question by question basis.

    Mukasey: With all due respect, that’s a matter that is still being litigated on which I can’t comment any further.

    Exactly who is litigating what? And where? Do we know which judge will hear this case?

    Does the case Mukasey alludes to have to do with executive privilege or absolute immunity or both?

    • perris says:

      Mukasey: With all due respect, that’s a matter that is still being litigated on which I can’t comment any further.

      Exactly who is litigating what? And where? Do we know which judge will hear this case?

      I was thinking exactly the same thing, I suspect meyers?

    • emptywheel says:

      It’s the Miers/Bolton case before John Bates right now. A decision is expected in August. Most people think Bates will just say Congress hasn’t taken all the steps it can do on its own (inherent contempt) so dump it back to Congress to deal with, though I’ve spoken to at least one person involved who is more optimistic that Congress will get a favorable ruling of some kind. In any case, it will be appealed.

  16. stryder says:

    maybe there’s no interaction between congressmen(women)to explicitly define the issues thus they go into these hearings unprepared or unaware of the real issues.All they would have to due,aside from reading these posts, is get their own legal advice before they go into the hearings.Mumbles is an adversary and should be treated as one not as a consultant giving guidance because if they don’t know by now Mumbles not only isn’t going to tell them anything he’s going to do everything he can to evade and avoid being pinned down on anything. Just because they aren’t lawyers is no excuse to be unprepared.This is the problem they have always had
    Like Addington said “I’m not here to give legal advice,you have your own attys for that”
    Most of these congressman know just enough to be dangerous and should swallow their pride and come to grips with that fact.They should recognize their shortcomings and get rid of their egos and consult with someone who knows what their doing
    Maybe you can’t outsource intelligence after all

    • bmaz says:

      Yeah, well, when they are given advice on how to do just that, even when it was them soliciting it, they still screw up and blather about and disregard the advice and preparation.

      • stryder says:

        Are there restrictions that prohibit representatives or senators from having legal assitants at a hearing?

          • bmaz says:

            I think the proximity depends on the hearing room and format from what I have seen over the years; clearly in the one today, there was no ability to have assistants seated right behind them, but I have seen it in other settings.

            • skdadl says:

              The reps on the upper tier had staff sitting behind them, and the senators always do at hearings. Most of those staffers look so young to me, but I guess that makes them bright-eyed and bushy-tailed for the long grind. Are they all legal advisers — ie, are some there more for practical assistance, finding the right docs, distributing copies, holding up displays, etc?

      • stryder says:

        Dear miss Sanchez in light of the importance of this hearing I would like to offer the services of the FDL legal team to assist you with your questioning of Mumbles in the upcoming hearing to ensure that you don’t FUCK IT UP !!!

  17. MarkH says:

    Hmmm. The new Democratic Congresswoman from Michigan, Emptywheel ?

    I could get behind that and push, but I wonder, does this wheel use $4/gallon gas or does it run on biofuels?

  18. ThingsComeUndone says:

    Mukasey: As I understand it, Mr. Rove acted at the request of the President in response to the invocation of Executive Privilege. He has offered to meet with staff, he has offered to discuss the matter–

    Executive Privilege means you can’t talk about what you said to the President period. What is this offer to meet with staff to discus the matter, unless Karl just does not want to testify under oath?
    Since Karl is willing to talk to Congress I assume with Bush’s permission but just not under oath, well Executive Privilege does not work that way.
    My Lawyer does not testify about what I said Attorney Client Privilege he also does not talk about what I say off the record even if by talking off the record AND LYING he is protected from perjury.
    By this action though has Bush waived any claim to Executive Privilege by Karl Rove in this matter?
    Because Bush has freed Karl to talk about this matter just not under oath, but the system does not work like that.

    • emptywheel says:

      As I point out in the post, Bush did NOT invoke executive privilege here. He invoked absolute immunity. Different thing, one that rests with the person, and not with the conversation.

  19. ThingsComeUndone says:

    Sanchez ignored Mukasey’s premise–that absolute immunity must be based on a proper claim of Executive Privilege–which it was not in this case.

    Mukasey absolute immunity argument is bull and more importantly a stall for time Bush is running out the clock. But this bull claim rests on Executive Privilege which I am sure Bush will assert again to stall for more time after the Absolute Immunity argument is dashed.

  20. GeorgeSimian says:

    Nothing at all in the papers today about Mukasey’s testimony yesterday. His last testimony before Congress and not a word about it.

    • MarieRoget says:

      Nothing at all in the papers today about Mukasey’s testimony yesterday. His last testimony before Congress and not a word about it.

      It had such a high priotiy for CSPAN that they only aired it @ 2:15 a.m. middle of last night on CSPAN2.
      If the TiVo hadn’t already been programmed to catch it, I’d have been SOL.

  21. MarieRoget says:

    After reviewing as much of yesterday’s HJC questioning of Mukasey as I could stomach (& I don’t just mean the frustrating 5 mins each w/Sanchez & Wexler), I can’t imagine why Rove wouldn’t be delighted to testify.

    Like Mukasey, & Addington before him, Rover can assure himself of running circles around this bunch by dictating the flow of Dem questioning.

    Unless a plan to give Artur Davis 20 mins. or so to grill KR on the Siegelman matter was agreed upon (& that will never happen) why should Rove be worried? He can just review his predecessors’ appearances & use the same tactics to lead the Dems by the nose.

    Sorry to be so negative, John, Linda, & Co, but you were no match for AG Mukluk (p.s.- it’s hard to “think on yr. feet” when you’ve tied yourself to slogging through presets on a piece of paper you’re reading. “I have a lot of questions to get through?” How about just “getting through” one of them in depth?)

    Questioning of AGMM was beyond disappointing. What an infuriating missed opportunity.

      • MarieRoget says:

        For Wexler, he was fine, I’ll agree w/that. Wexler always impresses me as a bit of a blowhard, but his heart’s in the right place. The tone of the entire hearing angered me- guess my attitude was soured by the ease of Mukasey’s skirting the salient issues, the Dems general lack of probing to get some depth to his answers.

  22. Leen says:

    I was unable to watch the hearing with Mukasey yesterday. Went to the HJC site can not get into listen to yesterdays hearing. Any suggestions?

  23. Leen says:

    Sanchez: But he has not offered to be under oath or be subjected to a transcript, and my understanding from prior court law–and I would expect an Attorney General to understand this as well–is that if the White House wishes to invoke a claim of Executive Privilege, the witness still has to present himself before Congress and claim that privilege on a question by question basis.

    Mukasey: With all due respect, that’s a matter that is still being litigated on which I can’t comment any further.

    Sanchez: But prior case law has held that that is the case.

    Mukasey: DON’T KNOW THAT. I know that is a matter under active litigation and is I believe sub judice before a judge in–

    Sanchez: So you agree that Karl Rove can disregard a congressional subpoena–

    Mukasey: What I’m saying is the question of whether an immediate advisor to the President has to appear at all when a proper claim of has been made of Executive Privilege is a matter that I believe is actively before a District judge and I shouldn’t comment anymore on that and I won’t.

    “DON’T KNOW THAT” Was that the U.S. Attorney General saying that? That is frightening and pathetic. Did he really mean that?

    EW I bow to your “steel trap brain” and your commitment to Justice, but was that really a Sanchez “thumping”? I really thought Sanchez got a message through that the AG was unwilling to enforce the law and more than willing to go along with the Bush administrations revamping of the law. I thought she made it crystal clear just who Mukasey is representing and how he persists in obstructing justice.

    • emptywheel says:

      I disagree. You can’t get all snitty with the AG when you, yourself, are unclear on the issues and you let him make unchallenged assertions that–if challenged, would put him in a much more precarious situation.

      • Leen says:

        You certainly have a deeper understanding. I am giving you my honest take from what I saw and heard on that clip. Plan to watch the whole hearing

  24. skdadl says:

    Tangential, but related to Arar: more evidence that the Canadian government is full of slavish idiots in thrall to BushCo:

    “Senior government of Canada officials should be mindful of the potential reaction of our U.S. counterparts to Abdelrazik’s return to Canada as he is on the U.S. no-fly list,” intelligence officials say in documents in the possession of The Globe and Mail.

    “Continued co-operation between Canada and the U.S. in the matters of security is essential. We will need to continue to work closely on issues related to the Security of North America, including the case of Mr. Abdelrazik,” the document says.

    Although heavily redacted, the documents illuminate a government keen to placate the Bush administration, irrespective of the guilt or innocence of Mr. Abdelrazik, who has lived in the lobby of the Canadian embassy in Khartoum for nearly three months.

    I’m too angry about this to be coherent.

    • MarieRoget says:

      You have a lot of company in yr. feelings about this- from Patrick F. in the pile of comments @ G&M:

      The situation would be completely understandable if this man were, indeed, a proven terrorist.
      As of yet, no proof of his guilt has been provided, so it is the duty of the Canadian government to bring one of its own home.
      And if the Americans don’t like it, that is entirely their problem.
      Are there any politicians with backbone left in Canada? Pierre Elliot Trudeau was never afraid of offending the American administration – unlike Harper, he was a man of character.

      Bring this man home!

      • skdadl says:

        Even if there were some evidence of something — which there isn’t, and that has been known for years — I would still think that this was wrong. If he’s a Canadian accused of terrorism for any good reason at all, bring him back here and try him here — in a, like, y’know, real court? (As far as I know, all our courts are still real courts. Thank heaven for small mercies.)

        The ironies in these stories just keep on tumbling out. Syria and Sudan are valued partners for the Bush administration? Run that by me again? And this a week after the chief prosecutor for the ICC announces that he is going to indict Sudan’s president on genocide charges? (No wonder BushCo don’t like the ICC.) skdadl’s head hurt — too much illogic.

        • MarieRoget says:

          Do you feel Harper & his minions will blow w/the prevailing wind on this one? That there’s a good chance Mr. Abdelrazik can return to Montreal only after 1/09?

          • skdadl says:

            It’s very hard to say just now. There are several intertwined cases — seven, in fact. At the moment, Harper is stonewalling about Omar Khadr, but public feeling is finally beginning to rise — and U.S. legal decisions against the GTMO processes certainly help on that score.

            Harper could be facing an election any time this fall, and while he definitely is in Washington’s pocket, it is never good to look that way during elections. So … I dunno. I’ve been thinking they might cave on Khadr, although they still sound oblivious. These docs about Abdelrazik could tip the balance because of the way those memos were worded.

  25. numbertwopencil says:

    One thing I think you guys are missing about how Rove operated in AL–Scott Horton has mentioned this several times but I don’t think I’ve seen anyone else touch it–is that Rove (and/or Rove’s associates) laundered their communications to the DoJ through several journalists in AL. If you’ve read Eddie Curran (Mobile Register) and Brett Blackledge’s (Birmingham News) coverage of Siegelman, you know that: 1. they had inside information about the grand juries, the grand jury testimony, the evidence against Siegelman, and so on, and 2. _after_ Curran and Blackledge published articles accusing Siegelman of various crimes, the DoJ announced that they were opening investigations in to Siegelman _based on_ Curran and Blackledge’s articles.

    Rove may or may not have directly leaked to Curran and Blackledge–he could have used an intermediate, of course–but both journalists were clearly laundering information _from_ the DoJ (and possibly other law enforcement sources) to the DoJ. There were multiple investigations into Siegelman. If you read the AL press, it looks like information that surfaced–legally or not–in early investigations was laundered through Curran and Blackledge to create new investigations and keep the pressure on Siegelman. It is, of course, remotely possible that Curran and Blackledge were innocent of working directly with the GOP and Rove’s office early on–maybe they just thought Rove and Co. were great sources–but after a while they had to know they were being used as information laundries aimed at influencing the DoJ. It seems likely that Rove set up much of operation in AL this way, knowing that using these journalists was safe. Among other things, the journalists would never tell because it would destroy their careers to do so and, of course, if pressured, everyone could hide behind jouralistic confidentiality.

    In short, Curran and Blackledge are the Judith Millers of the Siegelman prosecutions. This angle is going to be tough to purse but without sorting out the roles of these two journalists, it’s hard to make sense of what Rove was up to in AL. No, Rove probably didn’t call up Alice and tell her to get Siegelman. What he did was leak information he gathered from DoJ sources to Curran and Blackledge to provide a smoke screen for Martin to continue to go after Siegelman. No timeline of the Siegelman affair is complete without the relevant Mobile Register and Birmingham News articles. Those articles couldn’t have been written without inside DoJ knowledge and without them Martin couldn’t have continued going after Siegelman.

    • Jim Clausen says:

      Your post was full of insight into how Rove operates. I pray for the safety of Ms. Simpson? who is being smeared and threatened as well.

      Its all about plausible deniability and stonewalling till our ADD population forgets the facts.

      I look forward to hearing from Siegelman today!

    • emptywheel says:

      Thanks for that, numbertwo. I’ve pointed to the way Rove continues to try to use journalists as laundromats in this case–though I’ve definitely focused on how he’s tried to get Dan Abrams and 60 Minutes to reveal their backup information.

      Any chance you can show up today at 12 and ask Siegelman what he thinks of that.

    • Leen says:

      “In short, Curran and Blackledge are the the Judith Millers of the Siegelman prosecution”. Or the Bob Novak in the Plame case.

  26. lizard says:

    I saw two distinctly surprising moments in MM’s testimony that have not been the subject of much discussion yet: MM disagrees with Addington’s position that the VP is a barnacle on the legislative branch and appeared comparitively dismissive of the entire idea, and when asked if conversations with the VP qualify for executive privelige, replied “in the abstract, no”. If I am hearing this correctly, and if, in fact the AG is the final and binding authority on legal interpretations for the executive branch, there is some VERY fertile territory here. I would suggest that the congress needs to find some way to get MM’s opinions on both these matters (in official and hopefully binding opinions). That alone would render (properly) absurd many claims coming out of the executive lately.

    • skdadl says:

      That was during Steve Cohen’s questions, yes? Cohen is another good examiner; he can do things with that sly sense of humour, as can Delahunt. Remember how well they both did with Addington?

      • lizard says:

        I didn’t pay enough attention to the questioner (I play Diablo while listening, which means I sacrifice some detail in return for not being bored senseless or angered to distraction by the utter nonsense that constitute 90% of the questions and 99% of the answers).

        I watched the entirety of the broadcast of the Watergate hearings when they happened, and I remember the questions being sharp and the answers being informative. I wonder what happened. Something needs to be done to make hearings more confrontational and MAKE the subjects either answer in a responsive manner or face immediate, answer-by-answer contempt citations.

    • Nell says:

      when asked if conversations with the VP qualify for executive privelige, replied “in the abstract, no”.

      Which Rep. asked that? I’m on dialup only, can’t check out the hearing vid.

      • lizard says:

        I will (to satisfy my masochistic tendencies) be rewatching the hearing tonight, if nobody else has posted an answer to that, I will as soon as I get to it.

  27. GeorgeSimian says:

    I read these latest Mukasey cover ups from emptywheel, and they are so clear and comprehensive – and then I look at the papers, and see nothing, or I look at Congress, who do nothing. Congress seems to have lost interest in pursuing all these cases. August is coming up. Then November is right there. If they’ve lost interest in this now, I can’t imagine them getting more interest in January when a new President is trying to get his own agenda passed.

    It’s too sad.

  28. brendanx says:

    emptywheel:

    Congratulations Congresswoman Sanchez, you blew the best opportunity we have had to pressure Mukasey into either endorsing Rove’s claim that his “official duties” pertain to making sure Governor Siegelman gets prosecuted, or to refer Rove’s imminent contempt citation to USA Jeff Taylor.

    I have trouble following this. I don’t understand what you expect “endorsing Rove’s claim that his ‘official duties’ pertain to making sure Governor Siegelman gets prosecuted” to potentially lead to. If that question were ever insistently posed to them wouldn’t they just improvise and assert it’s Rove’s person as an advisor that is absolutely immune and that his “duties” aren’t the issue? They are, after all, just making shit up.

    • lizard says:

      There are some exacting rules about the manner in which they may make shit up, I think, or at very least some strategic considerations. The claim of EP (or any other privilege they decide to make up) would only be “properly” made if it related to official duties. Should the AG say that it did NOT apply to his official duties, in a hearing or other official setting, the courts that hear the dispute on said privilege would take notice (or, rather, SHOULD take notice) of that pronouncement and find against the privilege being asserted.

      • brendanx says:

        the courts that hear the dispute on said privilege

        I’m fundamentally ignorant of where the Fielding claim will go next: will a court be looking at it? Who’s going to pass the issue on to that court?

        • lizard says:

          On the specific question of Rove’s blowing-off of the committee, I am unsure. When his contempt citation is appealed, it WILL be squarely before a judge, and the germane questions will (I hope) be, among others: 1) was the claim properly asserted, (this is a procedural question, and the obvious answer is no, but sometimes the obviousness of the answer depends on the leanings 0of the judge), if properly asserted, does the privilege apply (this is the substantive half, and will go to, among other things, whether the behavior or information for which the privilege is claimed falls within the bounds of privilege). In the Nixon decision (this may not be accurate, I don’t have the decision in front of me and am too lazy to look it up) it is fairly clear that even if the claim falls squarely within the bounds of the privilege, the privilege CANNOT be used to conceal evidence of criminal wrongdoing.

          • brendanx says:

            On the specific question of Rove’s blowing-off of the committee, I am unsure.

            That’s my question.

            • lizard says:

              I think the procedure would be this: A contempt citation would be issued to Rove, Rove would appeal it, and then the questions would be squarely before a judge. I am not sure where the process is at this stage. I cannot imagine a positive outcome for Rove, because one of three things can happen. 1) the appeal could be denied, in which case the citation stands. 2) a court could take the case and reach the merits, in which case I am almost entirely certain Rove would lose (but shit happens, so who knows) 3) a court could find it lacks jurisdiction to resolve the dispute, in which case the citation stands.

              But the real action here is a play for time. They are trying to run out the clock on the Bush admin, and hope that a forward-looking Obama administration will not want to “rehash the past” and let Rove slide. Historically, that is what almost always happens. Alternately, Rove could be pardoned, in which case, all this stuff just goes away.

              • skdadl says:

                But if he’s pardoned, can he then not be required to testify, with no fifth-amendment protection on … Aha. I see the problem. I guess that all depends on what he gets pardoned for. What will he be pardoned for?

                • lizard says:

                  If he is pardoned, he CAN be forced to testify on any subject for which he can no longer be made to suffer a legal consequence. That is why Libby was commuted, not pardoned, I think.

                  I suspect that Bush will issue a blanket pardon for everybody in his administration accused of a crime while employed, directly OR BY CONTRACT, for his administration. And yes, he can do that. There are no limits on his pardon power.

                  I also suspect that Bush/Cheney dont give a rats ass what happens after the pardons are issued. The truth is going to come out, and they know it, all they care about is insulating themselves from the consequences of their actions.

                  • bmaz says:

                    Aye, but if there was a valid privilege/immunity (and i do not think there is), then the pardon would not supersede that.

              • Leen says:

                It is not going to go away. The peasants are pissed and Rove is just one of the thugs they want to witness held accountable.

                • lizard says:

                  It will go away in terms of legal action, if an effective pardon is issued. I think he will be disgraced for life, as will Bush and all his cohort of criminal underlings, but I doubt they care.

                  But that is what I thought about the Iran-Contra bastards, and many of them ARE bush’s criminal underlings.

                  • Leen says:

                    This is why John Dean has been pushing for the impeachment of lower level officials in the Bush administration. so that they can not be recycled into a future administration

    • emptywheel says:

      Well, sort of. Right now, DOJ is not on the hook for Rove blowing off Congress at all. Fielding just dug up an opinion from last year to justify his claim, rather than (as is normally done) asking DOJ for an opinion.

      If DOJ were forced to take a stand, then they woudl be forced EITHER to admit that Fielding’s claim is not only legally incorrect (that is, Rove has no legal basis for blowing off Congress EVEN ASSUMING THEIR ABSOLUTE IMMUNITY BS EXISTS), but also puts the White House on the legal hook for the illegal stuff Rove was doing.

      If you make that clear, then Mukasey is at legal exposure. It was a terrificually ripe opportunity–basically a giant fuck up on the part of Fred Fielding taht should have been exploited. But instead, Sanchez just kept spouting the talking points she has been–but which were made out of date on July 9.

    • lizard says:

      I was just looking at that interactive tool. It is great fun and very informative, but it doesn’t include records act or hatch act violations. Of course, if it did, there wouldn’t be enough room to list the possible or probable defendants and might crash everyones computers….

  29. klynn says:

    202-616-2777

    202-616-2777

    Let’s help with the re-focused campaign.

    I am done with crap like this and have decided to become a thorn…Who would like to join me in backing EW with a non-stop phone call effort to DOJ Deputy Director of Public Affairs, Peter Carr?

    Here’s the question we need an answer to:

    Did DOJ tell Fred Fielding that Rove’s “official duties” include obstruction of justice and channeling oppo research from Alabama Republicans to the DOJ?

    or asked another way…

    Did DOJ tell Fred Fielding that Rove’s official duties include witch hunts against Democrats?

    The sad part about this, is that there are a thousand ways Rove could prompt oppo work without stating a thing but play word games, quiet nods and references to literature to make his point to proceed with destroying anyone. Rove could state until he’s blue in the face that he did not talk to anyone in DOJ. Now did he direct people through deceptively coercive and seemingly non-coercive means? You betcha.

    Call today. Post any responses.

    • Leen says:

      Been on the “thorn” bus for a long time. Called last week will call again.

      “The price of freedom is eternal vigilance.” T.J.

  30. klynn says:

    And, come time, any repug involved in the process of submitting these questions should be charged with obstruction.

      • PetePierce says:

        I abhor the political targeting in many many cases by this hijacked DOJ as much as the next girl or guy here. But..

        I noticed you asked Don Siegelman about delay in the transcripts and I’ve pointed out before

        that his dream legal team which cost him several hundred thousand dollars–two or three of the best and brightest could have asked for “daily” transcripts and they did not.

        The mechanism certainly exists in the Northern District of Alabama and the dying (cancer) court reporter who made it through the trial could have done them.

        No doubt Judge Mark Fuller could have been more pro-active in the sense that he might have removed the ailing court reporter who could have spent his last days in other ways. The court reporter who was appointed to get the transcript done wrote a simple letter to Eleventh Circuit Chief Judge requesting a delay and Anderson promptly granted it.

        Siegelman’s attorney team could have motioned for Anderson to deny the delay, but they elected not to–possibly fearing they might antagonize the two judges who were deciding Siegelman’s appeal bond fate–that would be Black and Marcus who granted him an appeal bond in this order 3/37/08.

        Much has been written about Judge Fuller and I have commented on many of the issues before concerning Fuller.

        As you know the first attempt to prosecute Siegelman in the Northern district of Alabama failed when Chief Judge U.W. Clemon dismissed the conspiracy charges with prejudice in 2004 over USA Alice Martin’s objections and motion to remove Clemon from the case.

        In October 2005 intentionally seeking another judge and another venue, DOJ indicted Siegelman in Montgomery Alabama, instead of Birmingham which put the case in the Middle District of Alabama, where Fuller was assigned.

        There has been speculation by Scott Horton although it would be difficult to prove, that the assignment to Fuller was not random, but was influenced by prominent Republicans.

        Fuller as is often the case in the federal judiciary had no experience litigating in a federal courtroom, and came straight from Alabama State Court, Alabama’s 12th Judicial district.

        Scott Horton has done yeoman work on Judge Fuller and Bob Riley and the political machine aimed at Don Siegelman

        in these 14 blogs here.

        We all know who the Senators from Alabama are and their mindset–that’d be Jeff Sessions and Richard Shelby who egregiously intervened in a little known case where his son was stopped at the Atlanta airport trafficking in 13.8 grams of hash detected by a doggie. He was fined a $570 “administrative penalty in state court after the feds walked away from the case dropping it and turning it over to the Clayton County sherrif where he was allowed to quickly pay the fine in state court.

  31. MichaelDG says:

    Sanchez: There are a number of different areas of questioning that I have and I’m going to try to get through them as quickly as I can.

    And here we see the problem again. No time for follow up. Nose to the sheet of paper. And dancing witnesses. Until such time as evidence is clearly obtained outside of the congress and clearly documented by investigative reporters AND followed up by LOCAL prosecutors these hearings are a joke. Unless they really want to get into it. And focus! Use the Section 2C of the committee rules. Or change the rules.

    Calling and questioning of witnesses

    snip…

    (2)(A) Subject to subdivisions (B) and
    (C), each committee shall apply the
    five-minute rule during the questioning
    of witnesses in a hearing until
    such time as each member of the committee
    who so desires has had an opportunity
    to question each witness.
    (B) A committee may adopt a rule or
    motion permitting a specified number
    of its members to question a witness
    for longer than five minutes. The time
    for extended questioning of a witness
    under this subdivision shall be equal
    for the majority party and the minority
    party and may not exceed one hour
    in the aggregate.

    (snip…

  32. LS says:

    ” Mukasey: As I understand it, Mr. Rove acted at the request of the President in response to the invocation of Executive Privilege. He has offered to meet with staff, he has offered to discuss the matter–

    Sanchez: But he has not offered to be under oath or be subjected to a transcript, and my understanding from prior court law–and I would expect an Attorney General to understand this as well–is that if the White House wishes to invoke a claim of Executive Privilege, the witness still has to present himself before Congress and claim that privilege on a question by question basis.

    Mukasey: With all due respect, that’s a matter that is still being litigated on which I can’t comment any further.

    Sanchez: But prior case law has held that that is the case.

    Mukasey: Don’t know that. I know that is a matter under active litigation and is I believe sub judice before a judge in–

    Sanchez: So you agree that Karl Rove can disregard a congressional subpoena–

    Mukasey: What I’m saying is the question of whether an immediate advisor to the President has to appear at all when a proper claim of has been made of Executive Privilege is a matter that I believe is actively before a District judge and I shouldn’t comment anymore on that and I won’t.”

    1. Clearly he has not “seen” anything in writing personally from Bush to Rove or he wouldn’t say “I believe”.

    2. Clearly, he is not somehow not privy to actual documentation regarding EP in the “litigation”.

    3. He’s been told to STFU and is basically out of the loop.

    4. He’s like Schultz…..”I know nothing”…

    Maybe the President has claimed EP to Mukasey regarding Mukasey’s request about something in the litigation in order to keep Mukasey out of the loop.

  33. lizard says:

    One thing I should add to my response above: The court ALWAYS asks, as it’s first question, if it has jurisdiction to decide the question at all, and here, if the court is in a particularly spineless or skittish mood, it can easily weasel out of the question entirely, and whether that is good or bad depends on the disposition of the case below it.

  34. bell says:

    your recipe has no accountability.. as a consequence, it sucks..

    skdadl – ditto on arar and the canadian governments attitude.. harper is a big toe sucking bush/totalitarian fan..

  35. bell says:

    that was in response to message # 45, which it doesn’t convey.. going to have to learn how to work a flawed system here too it seems.

  36. Leen says:

    Does Siegelman consider Mukasey’s lack of efforts to hold Rove accountable as efforts to obstruct justice?

    • lizard says:

      obstruction by neglect would be a bitch to prove, and if there is anything that is firmly within the discretion of the AG it is who to charge with what.

        • lizard says:

          I think that would depend on exactly how the rules were changed, and by what process. This is well out of my area of expertise, so take it with a grain of salt, but I expect that MM could easily find ways to effectively rationalize away any procedural changes he would make that would cover up his obvious selective prosecution, if I understand your question correctly.

  37. Leen says:

    Jesus mary and Joseph

    Siegelmans answer to one of EW’s laser like questions
    Don Siegelman July 24th, 2008 at 9:53 am
    61
    In response to emptywheel @ 40 (show text)

    All of the above, plus, after my re-election, I was intending to hold the Bush Administration accountable for its policy in Iraq, as well as its failed economic and education policies. Having been a former Secretary of State, Attorney General, Lt. Gov, and Governor, I was planning on using my contacts in key electoral states to hammer this Administration on its failed policies.

    My indictment came on the day I was leaving on my first fundraising effort, flying to New York to meet President Clinton to raise money for Democrats running for Governor.

    – Don

  38. skdadl says:

    Really excellent session with Governor Siegelman at FDL. I wish I could be of more practical help, but I don’t like to pipe up since I can’t say much beyond noting that people elsewhere are watching and are learning a lot from stories like his about how to defend their own democracies.

  39. lizard says:

    And, like in most other areas since his mountaintop epiphany that brought Nixon down, John Dean is absolutely correct

  40. lizard says:

    Speaking of John Dean, he has pointed out that the telecom bill would forestall civil proceedings against the telecoms, and that they could still be criminally prosecuted. He is right, so I think we can expect the telecoms to be included in a breathtakingly broad pardon, which would render them immune to criminal prosecution. Dovetails quite nicely, and has a nice, sinister and evil quality to it.

      • lizard says:

        I have read the thread and vehemently disagree as a matter of law. I fully agree that it is a crock that this was the INTENDED scheme, as a matter of strategy.

          • PetePierce says:

            You didn’t have anything wrong. I have yet to see you have anything but right and tremendously on point. But I thought that Siegelman on his own blog exaggerated the delay of the transcript and it’s not widely appreciated that the original court reporter (who of course elicits a lot of sympathy was very sick with cancer and died shortly after the trialP). Fuller might have dragged his feet in appointing a successor or could be criticized for not replacing the sick court reporter (they certainly would have paid him) with a healthy one and I don’t know the exact gap if he dragged his feet in appointing the successor) but she (Maria something or other) immediately wrote Lanier Anderson at the Eleventh Circuit and asked for 2-3 months delay in preparing the transcript and she was given until about March 1. As I remember as a practical matter, unless Siegelman’s head is different, what held Siegelman in prison for a few months was the two judges at the Eleventh Circuit ruling.

            You are entirely right though, in another component of Fuller’s conduct besides the court reporter issue–Fuller refused to grant a memorandum opinion or explain his reasons for denying Siegelman in the first place. When his legal team appealed the denial of appeal bond to the Eleventh, they did something they sure don’t often do. They ordered him to issue a memorandum opinion explaining his decision. At that point, Siegelman and his lawyer’s had to feel hopeful but frustrated at the delays. Amazingly, Fuller told the Eleventh Circuit metaphorically to STFU and refused to issue the memorandum opinion that the Eleventh Circuit explicitly ordered, and after another motion, the Eleventh Circuit issued a second order to Fuller to put his reasons for denial in writing. I noted that back then, feeling if ever a trial judge was beginning to piss off the appellate judges Marcus and Black who were sitting on this appeal bond, that had to be one instance.

            If I were Siegeleman I’d be beyond angry at this DOJ–I hate them as much as he must). I thought on his website, he
            exaggerated the delay in the transcript a bit. It is a valid point that of course his lawyers needed the transcript to write their appeals and the Eleventh Circuit directed Fuller not just once but twice to issue a memorandum opinion stating his reasons for not granting the white collar defendant (by that I mean it was not in the venue of a “drug case” or a “violence case” or a “predator case” or “trafficking in illegal material case” an appeal bond.

            We never can predict, but I feel hopeful that soon this ordeal will be over and the Eleventh circuit is going to issue a rare reversal and I wish it would happen before the election. I don’t believe (I sure could be wrong) that they have scheduled oral argument for the appeal of the case–and they average taking about 10-12 months for this from the time of the appeal briefs.

            That could be one interesting oral argument, and I plan to try to get over there to see it. The Eleventh Circuit is terribly stupid in the way they more or less hide the schedule. I understand the reasoning why they won’t name the panel until about six weeks before an oral argument. They want to discourage people from trying to play to the individual judges as many appellate gbus write endlessly about as for as a SCOTUS argument. But they don’t issue their oral argument schedules until shortly before in terms of a week or two the scheduled argument and you have to pick up the scedule unless you can get a friendly clerk to fax or email you one. I have thought this ridiculous,and it keeps local law students and lawyers from being able to plan to see arguments on cases that interest them. They could damn well post it on their website and give people more time to know a particular case is being argued. The Northern District of Georgia and the Eleventh Circuit have two of the crappiest least sophisticated, least useful web sites compared to a more user friendly one like the one in the Ninth Circuit which is a lot more of a headsup site.

            I worry that as you know as well as anyone, we may never get to the bottom of any of this. Marcy’s blogging and your comments on many things Rovian and obstructive about this administration and the hijacking of DOJ as to targeted prosecutions Cyril Wecht, Geoff Feiger and some less known ones by Christopher Christie the US Attorney in New Jersey and the firings and the manuevering of Rove and Mukasey’s predictable and eggregious performance with the bar set at “avoiding the appearance or eruption of scandal” have been nothing but outstanding.

            Whether the acting AUSA on the case and the USA would appeal a favorable Siegelman ruling on the case by the Eleventh Circuit I don’t know. And over the years as you know, they have narrowed the number of cases that actually make it to oral argument to about 17% in the Eleventh. The huge volume of drug cases causes many many cases to have 3 sentence per curiam opinions issued and the parties who have gone to considerable time and expense never know the reasoning for the opinion.

            I’m a huge proponent of forced publishing of all cases, even if there is a limit on which ones get to an oral argument. There was a very interesting Eight Circuit opinion a few years ago called Anastasoff which actually decided this, but it quickly was jerked en banc sua sponte and overruled.

            “>Professor Howard Bashman on Anastasoff

            Scott Horton’s Six Questions for Former U.S. Attorney David Iglesias, Author of In Justice was interesting.

              • bmaz says:

                Thanks Pete, but Lizard was indicating that my take on the Dean and Olbermann/Obama “criminal prosecutions are a viable solution” is wrong. I said they are completely full of it on the criminal prosecutions bit, and still firmly believe that. I was asking Lizard what I had wrong, and I really am interested.

              • lizard says:

                Actually, I probably should shut up if I am unwilling to spend the time to familiarize myself completely with what you said, so please consider my remark withdrawn until such time as I have the time to go back and reread the thread in depth with close regard to authorship.

        • lizard says:

          Sorry about the delay, day job intrudes. I did not read the thread with close regard to who said what, so let me be a slightly more specific shade of vague. I agree with Dean’s legal analysis of the effects on possible prosecution of the telecoms after the telecom immunity provision (should it pass a court challenge, which I think it will, not because it should, but because Kennedy, Scalito, Clarence and The Dread Pirate Roberts have their heads firmly up the asses of the Federalist Society). I doubt it was anybodies plan to trick the rightwingers into believing the telecoms were scott-free. That is an invention of Dean and Olbermann. The telecoms still need a pardon to insulate them from criminal prosecution , and I think they will get it.

          • bmaz says:

            I wrote the post, so that ought to narrow down my perspective of inquiry, and I will let it speak for itself in that regard. It is not that there might not be some limited prosecution ability remaining, there may be; but for the reasons stated, i don’t believe there will be charges against either telcos or Administration officials, and if, by chance there were, I think not guilty verdicts are extremely likely to result (especially against the telcos).

            • lizard says:

              yeah, I missed that. I thought it was EW that wrote the thread and you were directing me to the comments. I am apparantly a sloppy reader.

  41. earlofhuntingdon says:

    I would like to thank skdadl and our other brethren from the frozen north (apologies to those on BC’s wonderful coast) for their insightful comments on this blog.

    How many of us know even the name of the Canadian president [sic] or his party, let alone the top parliamentarians on any committee or the subject of important hearings? Now if I could just order a meal in Quebec without sounding like un fier imbecile or read the road signs.

    • lizard says:

      Oh? And what language do they speak there? /snark

      (by way of explanation, I am from Maine. They don’t think we speak english, and we don’t think they speak french. No offense intended)

      • earlofhuntingdon says:

        Quebecois? Or would that be franglais? Je ne sais pas. But I admit to liking LL Bean’s gear and Mt. Katahdin.

    • skdadl says:

      It’s President Poutine, for those who didn’t already know. lol.

      One of our treasured comedy guys, Rick Mercer, who is like your Jon Stewart in that he often does better reporting than the “real” journalists do, actually managed to ask GWB his opinion of President Poutine during the 2000 election campaign, and got a most polite and positive answer.

      We spend a lot of time rolling about laughing up here. Or at least we did, until we figured out that we are in at least as deep as you are, and it could take longer to wake all these nice people up.

      • earlofhuntingdon says:

        I thought the cue card read “President Puttin’”, Texican for what George does so poorly when playing golf.

        Myself, I would favor “President Putin’ on the Ritz”, since his and Shrub’s administrations are so reminiscent of monsters come alive again, which then wreak havoc throughout the village and ultimately cause the demise of their creators.

    • Nell says:

      It used to be a lot easier to keep up with Canadian politics before Al Gore and his buds caused the NewsWorld International channel to cease to exist so they could favor us with the incredibly lame “Current TV”.

      And before that, when you could still get CBC with a big dish, it was even better.{Sigh}

      It’s incredibly frustrating to me that in the land of the free and supposed free market, someone with a TV satellite dish cannot get access to al Jazeera English, to CBC, or a host of other offerings, at any price.

  42. lizard says:

    I have second-glanced the thread you began, and I disagree with very little of it. However, I think you are quite wrong when you state that the telecoms were compelled to go along with this unlawful program. I believe the evidence thus far made available support the notion that they actively conspired with the Bush administration to break the FISA law, and could still be prosecuted for that.

    I also believe that the telecoms could be charged with criminal conspiracy under RICO. I think the Bush administration can be considered a corrupt organization under RICO

    • bmaz says:

      No worries, I am a sloppy writer. When I say compelled, I don’t necessarily mean legally compelled (although it is quite possible that the Bushies framed the authorization docs to make it appear they were compelled) but I suspect immense pressure of many modalities was placed on them, both from a patriotic/war perspective and financial. Although, upon fairly decent information and belief, I have always been of the opinion that Nacchio/Qwest declined participation not out of admirable Constitutional principle, but instead out of greed seeking better deals and just got squished; their story does indicate the level of retribution the Administration is/was capable of. So “compelled” has somewhat of a broader meaning in the post.

      I think conspiracy is a potential vehicle to bring a little more back into charging range, I am not sure it is really viable to think we will get the US government accepted as a corrupt organization. Love the idea; can’t see it working (and they do damn well meet the criteria in spades). I still don’t think that, irrespective of how they could be formulated, criminal charges against the real culprits ever will be filed.

      • lizard says:

        I still don’t think that, irrespective of how they could be formulated, criminal charges against the real culprits ever will be filed.

        If we are speaking about what is likely, rather than what is lawful or not, I hope you are wrong, but suspect you are entirely right.

  43. PetePierce says:

    It’s certainly possible to see why accountability for crimes and constitutional violations by the current regime is not an issue Obama or members of Congress would run on, when people are far more pressed in their daily lives by foreclosures, debt, health care cost and inadequacy, job loss, inflation in food and fuel prices, etc. But it’s a huge and unjustifiable leap from there to defeatist, disrespecting “sheeple” crap.

    I haven’t disrespected anyone. I have accurately reported the pandemic of ignorance and indifference. I really appreciate your alerting me to foreclosures, debt, and health care costs since I’ve been practicing medicine for a good while. Gee are their problems with the economics of health care, Neil? I commented at length previously on the Congress and Senate’s collosal indifference to medical care for the elderly when the Republicans narrowly missed cutting medicare 10.2% last week.

    Is there really job loss, inflation in food and fuel prices in a world where Phil Graham has said people are just “whining” and in fact McCain hasn’t divorced himself from Graham one scintilla and wants to make Graham his Secretary of the Treasury or Chief of Staff.

    Wow, I need to start reading something and find out what’s going on. What I said is literally true in these United States and I get evidence of it several times a day.

    Issues debated here are essential and the vast majority of Americans are completely oblivous to them. Your House and your Senate, your judiciary and your Executive branch drive their engines according to that ignorance and they exploit it.