The Call for a Special Counsel

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As Christy has reported, Senators Schumer, DiFi, Feingold, and Whitehouse have called on Paul Clement to appoint a Special Counsel. I’m underwhelmed with the idea, for several reasons. First, Clement is clerkship spawn of Laurence Silberman and Antonin Scalia, both of whom have well-earned reputations for putting their partisan loyalties (and duck hunting hobbies) above their commitment to independent justice. So what’s to stop Clement from appointing Ken Starr, who I’m sure could declare Alberto Gonzales innocent before the end of August’s recess?

There is, of course, the outside chance that Clement would do the right thing and appoint someone who could bring some independence to the investigation. To offer a ray of support for the suggestion, Clement is many smart people’s first choice to be the answer to this Sidney Blumenthal puzzle.

Yet another Bush legal official, even now at thecommanding heights of power, admits that the administration’s policiesare largely discredited. In its defense, he says without a hint ofirony or sarcasm, "Not everything we’ve done has been illegal." Headds, "Not everything has been ultra vires" — a legal term referringto actions beyond the law.

At the time, I voted for Fred Fielding, but I think Clement a very like candidate. So if he is, indeed, willing to publicly declare the Administration to be breaking the law, then maybe he’d pick someone competent. And heck–DC’s a small place, maybe the four Senators calling on Clement know this.

But aside from the question of whether Clement will pick someone competent, I have these two complaints. First, the Senators endorse the ongoing IG/OPR investigation of the USA firings.

The Briefing Dates

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I find the list of briefings on the domestic wiretap program as instructive for what it tells us about the program itself (and Bush’s dealings with Congress) as it is as proof that Gonzales is full of shit. In no particular order or structure, here are some thoughts:

Citizens and Voters Need Not Know

This document was declassified on May 17, 2006, before the midterm elections. But this is the first we’re hearing of it. I rather think that John Laesch would have liked to be able to tell voters that Denny Hastert had approved warrantless wiretapping of American citizens three times. I’m sure that Marcy Winograd would have liked to be able to tell voters that Jane Harman had signed off on wireless wiretapping on eight separate occasions. Why didn’t we get this list earlier? (Nevermind … I think I know the answer to that.)

See cboldt for this correction. This list has been available…

Venue

They started having briefings on the Hill after Risen and Lichtblau revealed the program on December 16, 20065. Perhaps that’s because (as Gonzales likes to repeat endlessly) Bush had confirmed the program and it no longer had to be secreted away inside the situation room.

Funding

They’ve conducted three briefings for leaders of defense appropriations subcommittees:

  • December 4, 2001, for Daniel Inouye (then-Chair of Senate Appropriations, Defense Subcommittee) and Ted Stevens (Ranking Member of the same subcommittee)
  • February 28, 2006, for Bill Young (then-Chair of House Appropriations, Defense Subcommittee) and John Murtha (Ranking Member of the same subcommittee)
  • May 11, 2006 for Young and Murtha again

I’m really curious about these briefings. How detailed were they (a particularly pertinent question since Murtha, Young, and Stevens are among the most corrupt members of Congress)? Why did the Senate get briefed once, close to the inception of the program, and the House get briefed almost five years later, when it was under fire (and when, because of Duke Cunningham, the Appropriations Defense Subcommittee was itself under fire)? I assume the program is funded out of some kind of black budget. So why brief the Appropriations leaders at all? Was there some kind of expenditure that was public, that needed approval?

Turning Tides

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I gotta say, this post yesterday from Josh Marshall,

As regular readers of this site know, I’ve always been against themovement to impeach President Bush. I take this position not because hehasn’t done plenty to merit it. My reasons are practical. Minor reasonsare that it’s late in the president’s term and that I think impeachmentitself is toxic to our political system — though it can be less toxicthan the high officials thrown from office. My key reason, though, isthat Congress at present can’t even get to the relatively low thresholdof votes required to force the president’s hand on Iraq. So to use ananalogy which for whatever reason springs readily to my mind at thispoint in my life, coming out for impeachment under presentcircumstances is like being so frustrated that you can’t crawl that youcome out for walking. In various ways it seems to elevate psychicsatisfactions above progress on changing a series of policies that aredoing daily and almost vast damage to our country. Find me seventeenRepublican senators who are going to convict President Bush in a senatetrial.

On balance, this is still my position. But in recent days, for thefirst time I think, I’ve seen new facts that make me wonder whether thecalculus has changed. Or to put it another way, to question whether myposition is still justifiable in the face of what’s happening in frontof our eyes.

[snip]

Whether because of prudence and pragmatism or mere intellectualinertia, I still have the same opinion on the big question:impeachment. But I think we’re moving on to dangerous ground right now,more so than some of us realize. And I’m less sure now under thesecircumstances that operating by rules of ‘normal politics’ isjustifiable or acquits us of our duty to our country.

Reminds me a lot of the posts he was writing in Fall 2002, such as this post, written on September 20, 2002.

Cheney Got the Keys to DOJ … But Did Rove?

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One more detail about the Ashcroft and Gonzales guidelines on contacts between DOJ and the White House. While the latter explicitly gives Cheney the authority to communicate with DOJ about ongoing cases, I don’t believe it gives Karl Rove–or any of the people who work in Office of Political Affairs save its head–that authority. When the more expansive Gonzales memo lays out whom the AG and his staff may communicate with, it says:

Notwithstanding any procedures or limitations set forth above, the Attorney General may communicate directly with the President, Vice President, their Chiefs of Staff, Counsel to the President or Vice President, Assistant to the President for National Security Affairs, Assistant to the President and Homeland Security Advisor, or the head of any office within EOP regarding any matter within the jurisdiction of the Department of Justice. Staff members of the Office of the Attorney General, if so designated by the Attorney General, may communicate directly with officials and staff of the White House Office, the Office of the Vice President, the National Security Council, the Homeland Security Council, and the Office of Management and Budget.

Now, Karl Rove is Senior Advisor to the President and I think he retains the title Deputy Chief of Staff, but he lost his Policy portfolio in April 2006, when Josh Bolten was named Chief of Staff. He has headed Political Affairs, Office of Public Liaison, and Office of Strategic Initiatives. As the head of these offices ("head of any office," he presumably could interact with the Attorney General if the AG initiated the communication. But he doesn’t serve in that role anymore, and the Deputy Chief of Staff (unlike the Chief of Staff) is not named among those the AG can choose to communicate with. Nor does Karl fall under the subordinate offices (NSC, HSC, OMB) with which AG staff members can communicate. And Karl certainly doesn’t fall under the list of people who can communicate about an ongoing criminal investigation.

…all initial communications that concern or may concern such an investigation or case pending at the trial level should take place only between the Office of the Counsel to the President and the Office of the Deputy Attorney General (ODAG)…

Now, before I move on to the ways that Karl can communicate with DOJ, let me point out that what holds true here for Karl also holds true for Scott Jennings and other other lower ranking members of the Office of Political Affars. If I’m reading Gonzales’ memo correctly, the only people who get to communicate with the AG are heads of offices. So Sara Taylor would have counted, back when she headed the Office of Political Affairs, but her subordinates like Jennings would not.

AGAG’s Just Given Cheney the Keys to the DOJ Kingdom

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Changing the Rules

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DiFi has a habit of using hearings to introduce new allegations against DOJ and she has done so again today. Here’s Christy’s version of the interchange:

Read to you what has been dropped from the earlier addition of the DOJmanual.  (1) restriction on bringing a voter fraud case close to anelection.  (2)  Care for overt investigations in the pre-electionperiod and while election is underway.  “Most if not all prosecutionsand investigations should await the end of the election.” — underlinedin the prior volume — has been removed.  Reason for that was to notimpact the election.  Gonzales, predictably, has no idea what Feinsteinis talking about and can’t answer why those changes were made.

The issue is that DOJ has recently revised the US Attorney’s (I think) manual. And they weakened–and in one important case–removed the restrictions on taking voting rights cases in the days leading up to an election.

In other words, DOJ just made it easier to tamper with elections by taking political cases against organizations like ACORN.

Time to Talk to the Gang of Eight

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Alberto Gonzales gave a closed-door briefing to the House Intelligence Committee recently and offered an excuse for barging into ICU to try to get Ashcroft to override Jim Comey. Silvestre Reyes, at least, seems satisfied with Gonzales’ explanation.

But Reyes said he was satisfied with Gonzales’ explanation and cautioned against drawing conclusions.

"When there are issues of national security at stake, I thinkcertainly one should not question the motivation of individuals," Reyestold reporters. "I’m willing to accept the rationale behind it."

Orrin Hatch, in today’s grilling of Gonzales, offered him the opportunity to give that explanation publicly. Gonzales said that the Gang of Eight–both parties’ leaders of both houses of Congress, and both parties’ leaders of the intelligence committees–advised BushCo to go forward with the domestic wiretap program, which is why, he explains, he thought a man in ICU should have the opportunity to override the judgment of the Acting Attorney General.

There was an interesting exchange, if I heard this correctly. I THOUGHT Hatch asked Gonzales whether Comey was at the meeting. But Gonzales didn’t answer that question. Instead, he said he wasn’t sure when Comey became Deputy Attorney General. Someone ought to ask Comey whether he remained at the meeting until its end–I’d be curious if he heard Congress approve the program. Or had an opportunity to fully explain the legal problems of the program.

But I’d be just as interested in hearing from the Gang of Eight. Best as I can remember, the Gang of Eight, on March 10, 2004 was:

  • Denny Hastert
  • Nancy Pelosi
  • Porter Goss
  • Jane Harman
  • Bill Frist
  • Tom Daschle
  • Pat Roberts
  • Jay Rockefeller

Now, I find the claim that these guys advised BushCo to keep the program dubious–but we’re going to have to ask them directly. Not least, that’s because only two of these people remain on the Gang of Eight–Pelosi and Rockefeller–and Harman, who at least remains in Congress, is no longer on the HPSCI so couldn’t correct Gonzales if he told HPSCI another false story. Rockefeller, for one, noted his concerns about the program in a letter to Cheney and has said Congress never had the opportunity to approve or disapprove of the program.

The Jurisdiction of DOJ’s Inspector General

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This is a follow-up on my post on the loophole in the jurisdiction of DOJ’s Inspector General, which appears to be preventing DOJ’s IG from investigating the role of any lawyer in the USA Purge–which is, after all, just about everyone involved. Here’s how Senator Leahy laid out the problem:

Other Inspectors General can investigate misconduct throughout their agencies.  Apparently, the Department of Justice Inspector General suffers under a limitation that restricts his ability to investigation misconduct by you, the Deputy Attorney General, and other senior Department lawyers.  Will you agree to the removal of this limitation on the Department of Justice Inspector General so that the Inspector General may investigate misconduct by you, other senior Department of Justice officials, lawyers, and law enforcement agents?

DOJ’s Inspector General, Glenn Fine, explained the problem at a recent appearance before the Senate Committee on Homeland Security (I know, shocker, Holy Joe held a hearing! I bet he regrets it now).

Senate Dems Corner Bush and Gonzales on Their Attempt to Game Appointments

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Oh, this is getting fun.

Remember how I pointed out that Steven Bradbury, the guy who wrote the opinion declaring Harriet immune from having to appear before Congress, was not acting with proper authority?

Well, Leahy, Durbin, Feingold, and Kennedy have raised the stakes on that issue.

We write seeking information about a memorandum issued on July 10, 2007, by the Justice Department’s Office of Legal Counsel (OLC), concluding that former White House Counsel Harriet Miers should be absolutely immunized from responding to a subpoena to appear and testify before Congress. The White House and Ms. Miers are relying on this opinion as the basis for Ms. Miers’ refusal to appear yesterday before the House Judiciary Committee.

There is a serious question about whether this OLC opinion was properly issued. Under applicable law and regulations, the Attorney General has delegated to the Assistant Attorney General of OLC the authority to render opinions and legal advice to the various agencies of the government. The Assistant Attorney General may delegate this authority, but he or she must supervise the delegated work. When there is no Assistant Attorney General, confirmed or acting, the Attorney General must supervise the delegated work. Since you have recused yourself from matters Read more →

The IG Loophole

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Remember how Senator Whitehouse busted Alberto Gonzales for trying to bury the DOJ’s internal investigation of the USA firing into the Office of Professional Responsibility, which has no authority over potential illegalities and doesn’t issue public reports? Remember how Paul Clement, who has ostensibly been in charge of DOJ’s internal investigation since the time Gonzales recused himself, has at the same time been defending the White House’s ability to keep materials from Congress? Well, that’s not the only way AGAG has managed to avoid any incrimination on this matter. Here’s the second bombshell question Leahy asked AGAG:

Other Inspectors General can investigate misconduct throughout their agencies.  Apparently, the Department of Justice Inspector General suffers under a limitation that restricts his ability to investigation misconduct by you, the Deputy Attorney General, and other senior Department lawyers.  Will you agree to the removal of this limitation on the Department of Justice Inspector General so that the Inspector General may investigate misconduct by you, other senior Department of Justice officials, lawyers, and law enforcement agents?

In other words, all those assurances that DOJ was conducting an investigation into this issue? Well those assurances were utterly cynical and false. DOJ’s IG, apparently, can’t investigate AGAG Read more →

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