As many of you noted while we were having our little server issues this morning, HJC just recommended Rove be held in contempt by a vote of 20-14. The big challenge at this point will be convincing Speaker Pelosi–whose phone number is (202) 225-0100–to take up this recommendation immediately, and do so with the goal of holding Rove in inherent contempt. The ruling from Judge Bates–on Miers’ and Bolten’s contempt–should be forthcoming, which may or may not accelerate this process.

While we’re waiting for Bates’ ruling, I thought I’d look at Conyers’ report on the contempt vote for Rove–not least because it hits on many of the points I’ve hit on here–but which journalists seem to be missing. Among other points Conyers makes are:

Rove Didn’t Deny the Central Allegations against Him in the Siegelman Case

As I pointed out in this post, Rove doesn’t even answer the jerry-rigged questions Lamar Smith gave him to try to get him out of testifying. In particular, Rove refused to answer questions about whether he had spoken with "any individual" aside from DOJ or Alabama officials regarding the Siegelman prosecution. As Governor Siegelman pointed out when he did our live chat last week, that doesn’t even exclude conversations with Rob Riley or Bill Canary!

First, Mr. Rove’s written answers to the questions posed by ranking Member Smith do not appear to resolve the questions about his possible role in the matter. For example, Mr. Rove was asked if he ever communicated with “any Department of Justice officials, State of Alabama officials, or any individual” about the investigation or prosecution of Governor Siegelman. He answered only that he had not communicated with “Justice Department or Alabama officials” about the matter. The failure to address whether he communicated with any other “individual” suggests that Mr. Rove may have communicated with political operatives such as Bill Canary, the Governor’s son Rob Riley, non-Department of Justice Executive Branch officials such as his White House colleagues, or even members of the federal Judicial branch.

The White House Is Relying on an Untested "Absolute Immunity" Claim

As I’ve been pointing out, the only assertion by the White House on this point doesn’t even mention "executive privilege." Rather, it relies on a much more expansive "absolute immunity" from appearing before Congress, one that no court has ever recognized.

The July 9, 2008, letter from White House Counsel Fred Fielding claims that Mr. Rove “is constitutionally immune from compelled congressional testimony about matters that arose during his or her tenure as a presidential aide and that relate to his or her official duties.” As discussed in greater detail below, no general freestanding immunity exists for former presidential advisers and thus the proper course is to recognize claims of privilege only when properly asserted in response to specific questions during a particular hearing.

[snip]

Second, there is no proper legal basis for Mr. Rove’s refusal even to appear before the Subcommittee as required by subpoena. No court has ever held that presidential advisers are immune from compulsory process – in any setting.

This Immunity Would Be Even More Expansive than Clinton’s Alleged Actions in the Jones Suit

Finally, Conyers hits on a point I’ve been making–that Fielding has basically asserted (with no backing from DOJ, apparently) that the issues about which Rove was asked to testify were part of his "official duties" in the White House. Conyers goes even further than I have on this point, by noting that if this claim were to stand, it would mean that Rove was invoking greater immunity from testimony than even Presidents enjoy.

According to Mr. Fielding’s July 9, 2008, letter, the White House believes that the matters covered by the subpoena relate to Mr. Rove’s “official duties.” If that assertion is to be credited, then apparently this Administration believes that Mr. Rove’s official duties included the alleged pressuring of the Justice Department to criminally prosecute a political opponent of the President’s party and also included ensuring the political loyalty of the U.S. Attorney corps and forcing politically unhelpful U.S. Attorneys to resign. While it is true that Mr. Rove denies at least some of these allegations, the White House claim that these alleged actions would fall within his “official duties” is disturbing. On the other hand, if the White House does not believe that such interference in the Department of Justice’s prosecution function was an official duty of Mr. Rove, then either the claim of immunity fails on the Administration’s own terms (because they claim the immunity applies only where official duties are involved) or they are actually asserting a total immunity from compelled testimony for Presidential aides on any subject and regardless of any nexus to the individual’s White House responsibilities. That form of immunity, of course, would be even greater than that held by the President, as the Clinton v. Jones case makes clear, and should be rejected as legally unsupportable. [my emphasis]

It’s a pretty good summary of the audacity of Rove’s claims to be immune from testifying. I mean, heck, if Clinton had to testify about his Clenis, then it seems like very little to ask for Rove to testify about all his actions involved in politicizing DOJ.

TPMM and LAT elaborate on what I reported yesterday–that the anti-gay discrimination described in yesterday’s Monica Goodling report was targeted at Margaret Chiara and Leslie Hagen. Both have interviews with Hagen’s attorney; the LAT did an interview with Chiara herself. And together, the LAT interviews describe the gossip-mongering of a few people within the USA office in Grand Rapids providing both the rumors that the women were in a gay relationship–and that Chiara’s management had created morale problems in Grand Rapids.

The report describes an alleged "sexual relationship" between a career prosecutor and a U.S. attorney, who were not named. Margaret M. Chiara, the former U.S. attorney in Grand Rapids, Mich., said in an interview with The Times that she now believed she was fired because of the erroneous belief that she was having a relationship with career prosecutor Leslie Hagen.

"I could not begin to understand how I found myself sharing the misfortune of my former colleagues," Chiara said of the eight other U.S. attorneys who were fired. "Now I understand."

Justice officials said after her firing that Chiara was let go because of mismanagement and because she had caused morale in her office to sink. Chiara said Monday she believed those concerns were raised by the same people who spread rumors about her and Hagen. [my emphasis]

Most troubling, though, is the suggestion from Lisa Banks, Hagen’s attorney, that the attorneys who started those rumors eventually won jobs at Main Justice.

Banks said she believed the rumors were started by other attorneys in the Grand Rapids office who eventually landed jobs at the Justice Department in Washington. [my emphasis]

How convenient. Someone plays to Monica Goodling’s narrow-mindedness and gives her a reason to fire Chiara–and they get moved up to DC. I wonder if they share an office with Rachel Paulose?

Over a year and a half has passed since Margaret Chiara was fired with a bunch of other US Attorneys–and we still have no good explanation why she was targeted. The apparent reason, though, is a rumor that she was having a gay relationship with an AUSA in her office, traveled with her on the government dime, and gave her preferential bonuses.

But today’s Monica Goodling report includes a denial from Chiara and the AUSA–Leslie Hagen–that they were in a relationship.

The AUSA told us that the rumors were false and that she was not involved in a sexual relationship with her U.S. Attorney. Similarly, the U.S. Attorney denied that she and the AUSA were involved in a sexual relationship.

We know these two are Chiara and Hagen because the details line up perfectly with Chiara’s description of learning that Hagen’s EOUSA detail on the Native American Issues Subcommittee would not be extended.

Here’s a description of the incident from today’s report.

In October 2005, an AUSA was detailed to EOUSA to work on Native American issues. She had been an AUSA since 2002, and had previously been a Republican elected office holder in her home state. As discussed below, we found evidence that, in part on the basis of this AUSA’s alleged sexual orientation, Goodling prevented an extension of the AUSA’s detail in EOUSA, attempted to prevent her from obtaining a detail to the Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking (SMART) in the Office of Justice Programs (OJP), and attempted to prevent her from obtaining a position with the Office on Violence Against Women (OVW).

A. EOUSA Detail
In the summer of 2006, the AUSA’s supervisor at EOUSA, Dan Villegas, offered her an extension of her EOUSA detail, which she accepted. Later, in October 2006, Villegas and the U.S. Attorney for whom she had worked told the AUSA that her EOUSA detail would not be extended. Villegas told the AUSA that EOUSA Deputy Director Nowacki had been instructed by Goodling not to extend the detail. The AUSA said that Villegas also told her this was a political decision and was not based on her performance. In fact, the AUSA’s 2006 performance appraisal, which covered her detail at EOUSA, rated her performance as “Outstanding” on all performance elements, the highest possible appraisal.

Villegas told us that the AUSA had done a great job and he wanted to extend her detail. He said he asked Deputy Director Nowacki to extend the detail, but Nowacki said he would have to check. Villegas did not specify with whom Nowacki had to consult.

Nowacki told us that he asked Goodling whether the AUSA’s detail should be extended, and Gooding said that it should be terminated.

Nowacki said that when he raised the issue of the AUSA’s detail extension with Gooding, he told Goodling that he did not have a problem extending it because “everyone says she does a great job, she’s well regarded.” Nowacki said that Goodling told him that EOUSA details should only be for 1 year. Nowacki said that Goodling then brought up the issue of the AUSA’s “relationship in progress” with her U.S. Attorney “and made it clear just that she thought that was inappropriate.”

Nowacki said that Goodling’s decision was based, at least in part on the allegations that the detailee and her (female) U.S. Attorney were involved in a sexual relationship. Nowacki said he informed Villegas that the detail would not be extended because of a new EOUSA policy that strictly limited details to 1 year.

Villegas told us he did not believe Nowacki’s explanation for the termination of the detail because Villegas was aware of only two people whose details ended after 1 year – this detailee and another detailee from the same USAO. [my emphasis]

And here’s Chiara’s description from last year’s document dumps.

October 22, 2006: Chiara writes Mercer to complain that EOUSA has backed out on its promise to fund Leslie Hagen as the primary liaison to NAIS.

I met with Dan Villegas. … He informed me that he was no longer able to honor his previously stated commitment to renew Leslie Hagen’s detail through which she primarily serves as liaison to NAIS and to federally recognized tribes and other Indian communities nationwide.

[snip]

What is critical about this situation is the absolute necessity to continue Leslie’s service in her capacity as IC/NAIS liaison. She has spent a year establishing difficult to forge constructive contacts throughout IC [Indian Country].

[snip]

It has taken me almost a year to recoup from Tom Heffelfinger’s tenure as chair with EOUSA/AGAC. I have accomplished this with Leslie’s assistance because she goes almost everywhere and does almost everything that Tom believed that he had to do personally. Dan Villegas … has a directive from Monica Goodling that detailees will no longer be renewed for a second or subsequent year. [my emphasis]

Both include the details that Villegas extended an offer to renew Hagen’s detail, but then, in October 2006 rescinded the offer because Monica Goodling had declared that detailees should not serve more than one year. Which makes it clear that Hagen is the AUSA and Chiara the USA in question.

Now, if the rumor was in fact false, it sure was widespread. I heard the rumor from an AUSA here in Michigan (though not one from the same USA Office). And the rumor appears to be the reason David Margolis–no political hack–supported Chiara’s firing. Margolis lists Chiara, with Kevin Ryan, as the only USAs fired in December 2006 for performance reasons.

MR. BHARARA: Was that third person you have just been describing among the eight people who were ultimately asked to resign last year?

MR. MARGOLIS: Yes.

MR. BHARARA: And who was that?

MR. MARGOLIS: Margaret Chiara.

When asked what he considers performance reasons, he includes an affair with a subordinate.

And it could be having an affairs with a subordinate and treating that subordinate more favorably than other people, creating problems in the office.

Which sure seems to reflect the allegations about Chiara and Hagen.

But they deny the rumor, as part of a DOJ investigation. Was the rumor false?

The "Monica Goodling Report" makes it clear that the Bush Administration changed the hiring process for immigration judges not only to ensure judges would be tough on immigration, but to create a slew of patronage jobs they could offer to loyal Republicans. At one point, Monica’s predecessor at DOJ as White House Liaison, Jan Williams, pledged immigration judge slots as if part of some kind of lottery–"let the games begin!"

On May 17, 2005, Williams received an e-mail from the White House Office of Political Affairs addressed to White House Liaisons in agencies throughout the executive branch. The e-mail urged the White House Liaisons to “get creative” and find positions for more than 100 “priority candidates” who “have loyally served the President.” The White House also sought from each White House Liaison a “pledge of the number of the 108 priority candidates you can place at your agency.” In a follow-up e-mail, the White House reiterated that “we simply want to place as many of our Bush loyalists as possible.” The context of the emails made plain that the positions sought were political, non-career slots. On May 19, 2005, Williams responded: “We pledge 7 slots within 40 days and 40 nights. Let the games begin!”

As you can imagine, lotteries of hack Republicans don’t necessarily result in qualified candidates. But some of the ones described in the report rival Michael Brown in their lack of qualifications for the position.

On candidate described in the report has been described in earlier reporting–a New Hampshire GOP operative and former Judd Gregg campaign treasurer, Francis Cramer, who failed to get a job as a tax judge.

The first example of a direct appointment in which Sampson referred an IJ candidate to EOIR involved an attorney who served as the campaign treasurer for a Republican Senator from New Hampshire. The campaign treasurer had been nominated to the U.S. Tax Court by President Bush in 2001, and Sampson was the person at the White House who was assigned to “shepherd” the candidate through the nomination process. The nomination was not successful, and the candidate was appointed to a political position in the DOJ Tax Division.

In October 2003 the candidate approached an official in the OAG to inquire about IJ positions, and learned that Sampson was in charge of IJ hiring.

Shortly thereafter, the candidate spoke with Sampson by telephone. In January 2004, the candidate learned that he would be interviewed by EOIR for an IJ position. An EOIR official told us that he learned that the candidate had already been offered a position before he came to EOIR for his interview. The subsequent recommendation from EOIR to appoint the candidate as an IJ was sent to Baxter in the ODAG on February 19, 2004. In an internal Department e-mail dated March 18, 2004 to the Justice Management Division, Department White House Liaison Susan Richmond noted that the candidate would soon be
appointed and commented: “could you . . . advise [the] Sen. . . . of this? This is the issue he’d been pushing with us.” The candidate was appointed as an IJ on April 4, 2004.

For example, the White House reached out to a Republican Congressman, and on June 7, 2005, the Congressman’s staff sent an email to the White House recommending a candidate, described as a “great Republican,” for an IJ position in New York. On June 15, 2005, the White House forwarded that e-mail to Williams, adding that the candidate was a “long time donor to the local GOP,” and that local Republican Party officials would vouch for him. Williams forwarded the candidate’s name to EOIR.

Then there’s the one candidate the Executive Office for Immigration Review managed to refuse–who sounds like he’s a Republican frat boy who never had to interview seriously for a job before.

For example, the White House reached out to a Republican Congressman, and on June 7, 2005, the Congressman’s staff sent an email to the White House recommending a candidate, described as a “great Republican,” for an IJ position in New York. On June 15, 2005, the White House forwarded that e-mail to Williams, adding that the candidate was a “long time donor to the local GOP,” and that local Republican Party officials would vouch for him. Williams forwarded the candidate’s name to EOIR.

EOIR resisted this candidate proposed by the OAG. This was the only time we found that EOIR resisted any OAG candidate. In an e-mail dated December 7, 2005, Ohlson advised Williams that the candidate’s conduct during his EOIR interview “causes us to question whether he possesses the appropriate judicial temperament and demeanor to serve as an immigration judge.” Ohlson related that the candidate used profanity during the interview, acted abrasively, and when asked whathis greatest weakness was, responded “Blondes.”

And, finally, there’s one more candidate Williams tried to get hired during her lottey of Republican hacks–who was under investigation for misconduct.

Three weeks later, on July 7, 2005, Williams transmitted to EOIR the names of eight candidates for specific IJ positions. Ohlson responded the same day in an e-mail, noting that one of the named candidates was under investigation by the Department for professional misconduct,

Mind you, only one of these three is now serving as an immigration judge (though click through to last year’s WaPo piece to see the other kinds of hacks who are still serving as immigration judges). Yet had Bush had his way, all three of these geniuses would currently be in a permanent position

The DOJ IG report provides more details than we’ve seen before of Monica Goodling’s entire work history. And when you look at it, it’s pretty damn clear that her primary purpose at DOJ was to politicize the department.

Here are the details the report gives. As we knew, Monica’s first job out of law school was doing oppo research for the RNC:

From 1999 to February 2002, she worked for the Republican National Committee (RNC) where she held the positions of research analyst, senior analyst, and deputy director for research and strategic planning. Among her duties was what she described on her résumé as “a broad range of political research.”

Her first job at DOJ was spin–working in the Public Affairs department with Libby’s future PR flack Barbara Comstock and Rove’s future PR flack Mark Corallo:

According to Goodling’s résumé, while at OPA she worked closely with the OAG regarding public communications about the Department’s work, including media events, press releases, speeches, and talking points.

Then, they shipped her across the Potomoc for a short sting in a US Attorney’s office–so she’d look like a "real" lawyer when future promotions became available.

In September 2004, Goodling began a 6-month detail as a Special Assistant United States Attorney in the USAO for the Eastern District of Virginia, where she handled criminal felony and misdemeanor cases.

I believe the use of  "handled" here does not include actually "handling" anything in a courtroom–as I recall Monica testified before Congress she had no real prosecutorial experience.

But here’s the real tip-off about Monia’s career: they created a brand new political Deputy Director of EOUSA for her to move into in March 2005–at which position they had her approving waivers for AUSA hires requested by interim US Attorneys. 

The political Schedule C Deputy Director position for Goodling was a new position within EOUSA. Contemporaneous e-mails of senior managers within the OAG and ODAG indicate that OAG personnel approved Goodling’s appointment as a political Deputy Director.

Then finally, they institutionalized and expanded this institutionalized political hiring and firing function by moving it to the Attorney General’s office.

Goodling’s major responsibility as White House Liaison was to interview and process applicants for political positions in the Department. In that job, she also interviewed and was involved in the selection of career attorneys who were candidates for temporary details to various Department offices, and candidates for immigration judge and Board of Immigration Appeals positions. In addition, Goodling continued to process waiver requests by interim U.S. Attorneys, although neither of her predecessors as White House Liaison, Susan Richmond and Jan Williams, had done so.

In other words, it seems the primary purpose of her career at DOJ was to create new levels of politicization in key positions.

Apparently, in Monica Goodling’s world, Democrats are scarier than terrorists. That’s the only thing I can conclude from the news that Goodling even politicized the hiring of am EOUSA counter-terrorism position, resulting in the US being served by an unqualified hack rather than someone who knew something about terrorism.

For example, an experienced career terrorism prosecutor was rejected by Goodling for a detail to EOUSA to work on counterterrorism issues because of his wife’s political affiliations. Instead, EOUSA had to select a much more junior attorney who lacked any experience in counterterrorism issues and who EOUSA officials believed was not qualified for the position.

In a post 9/11 world, how did this go unmentioned? And what does President Bush plan to do about the fact that this woman helped the terrorists win?

The Department of Justice’s Inspector General’s Office has released another of its reports on the politicization of DOJ under Bush. This one ought to be called the Monica Goodling report, as it focuses on her litmus test hiring. I’ll post some updates on the details, but here is the conclusion:

In sum, the evidence showed that Sampson, Williams, and Goodling violated federal law and Department policy, and Sampson and Goodling committed misconduct, by considering political and ideological affiliations in soliciting and selecting IJs, which are career positions protected by the civil service laws.

Not only did this process violate the law and Department policy, it also caused significant delays in appointing IJs. These delays increased the burden on the immigration courts, which already were experiencing an increased workload and a high vacancy rate. EOIR Deputy Director Ohlson repeatedly requested candidate names to address the growing number of vacancies, with little success. As a result of the delay in providing candidates, the Department was unable to timely fill the large numbers of vacant IJ positions.

We also concluded that Goodling committed misconduct when she provided inaccurate information to a Civil Division attorney who was defending a lawsuit brought by an unsuccessful IJ candidate. Goodling told the attorney that she did not take political factors into consideration in connection with IJ hiring, which was not accurate.

In addition, we concluded that Williams provided inaccurate information to us concerning her Internet research activities.

Because Goodling, Sampson, and Williams have resigned from the Department, they are no longer subject to discipline by the Department for their actions described in this report. Nevertheless, we recommend that the Department consider the findings in this report should they apply in the future for another position with the Department.

In addition, we concluded that EOUSA Deputy Director John Nowacki committed misconduct by drafting a proposed Department response to a media inquiry which he knew was inaccurate. Although Nowacki knew that Goodling had used political and ideological affiliations to assess career attorney candidates for EOUSA detail positions, he drafted a media statement in which the Department would have denied the allegations. Nowacki is still employed by the Department. Therefore, we recommend that the Department consider appropriate discipline for him based upon the evidence in this report.

Hey! Good news! We might actually get to fire someone over this–John Nowacki, who is still employed by DOJ, just got caught lying about Goodling’s practices. Though, in Mukasey’s statement on the report, he somehow forgot to mention that he was going to fire Nowacki for covering up his colleague’s illegal activities.

Even as I commend the hard work and collaboration of the Justice Department’s Offices of Inspector General and Professional Responsibility on today’s report, I am of course disturbed by their findings that improper political considerations were used in hiring decisions relating to some career employees. I have said many times, both to members of the public and to Department employees, it is neither permissible nor acceptable to consider political affiliations in the hiring of career Department employees. And I have acted, and will continue to act, to ensure that my words are translated into reality so that the conduct described in this report does not occur again at the Department.

Over the course of the last year and a half, the Justice Department has made many institutional changes to remedy the problems discussed in today’s report, and the report itself commends these changes. The report includes one new recommendation for institutional change, and I have directed the prompt implementation of that recommendation. It is crucial that the American people have confidence in the propriety of what we do and how we do it, and I will continue my efforts to make certain they can have such confidence.

I guess that means we’ll just have to try to get Sampson and Goodling and Nowacki disbarred based on this report.

Update: Conyers and Sanchez are considering a criminal referral for perjury.  I’m still reading the report, but I bet this would be a tough thing to pull off, since Sampson did admit Goodling’s politicization of Immigration Judges, and Monica admitted to it all. 

I know, I know, a lot of you want me to talk about Rove in Ohio. But I’ve been distracted with something else so I haven’t had a chance to assess it yet, and anyway, I’ve been pondering this assessment from Scott Horton:

The ultimate problem here is that Mukasey is not paying attention to the matter. Instead he is relying on political flaks at the Justice Department to prepare answers on his behalf, trodding down the same path that destroyed the careers of Alberto Gonzales and Paul McNulty. He has allowed himself to be roped into a series of incorrect statements about specific aspects of the Siegelman investigation. Michael Mukasey needs to recognize that he has brought his tenure at the Justice Department to the edge of a precipice.

Horton is talking, specifically, about the Siegelman investigation in general, but I suspect Horton is right on the money, and not just as it pertains to Siegelman (heck! maybe it pertains to the Ohio allegation as well…).

To support that argument, I point to two exchanges in Mukasey’s testimony before the House Judiciary the other day which suggest he’s not being informed of key issues that Congress regards as critical. First, there was his admission that he only recently realized–presumably between his testimony before the Senate Judiciary Committee, when he refused to guarantee that Congress would learn the results, and that before HJC, when he said Congress would "absolutely" learn the results–that Congress itself requested the OPR investigation of the Siegelman affair.

Davis: Can we see OPR report?

MM: Absolutely. Congress was the complainant. Complainant always informed. If finding of misconduct, then you’ll get the report.

It is inconceivable to me that Mukasey didn’t go into the SJC hearing expecting a question about the Siegelman affair, if for no other reason than all the chatter pertaining to his Siegelman-related subpoena from HJC at the time. But no one thought to inform the Attorney General two key facts: that Congress had requeted the investigation and that, therefore, Congress would be guaranteed to learn of its results. Now, to some degree, this was just bad staff work on the part of DOJ, a failure to prepare for an obvious question. But the effect was to put Mukasey into an antagonistic relationship with Congress, defending something (hiding the results of the OPR investigation) that put the AG into an unnecessarily confrontational position.

Then there’s Mukasey’s claim that the President invoked "Executive Privilege" with regards to Rove’s testimony.

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–

Now, granted, this is a more ambiguous case of apparent sheer ignorance about a topic bound to come up in a hearing. Perhaps Mukasey was referring to executive privilege more generally, the general concept that the executive branch gets certain privileges which may or may not include the authority to blow off Congress altogether. Or maybe Bush did invoke traditional Executive Privilege without telling Congress. Still, Mukasey’s statement risked mis-stating the actual facts of the case–and you’d think he would have been better prepared for this question. Unless, of course, he was unprepared by design.

Which is why I think Horton’s assessment may well be right on the money–Mukasey’s political subordinates are deliberately keeping him compartmentalized from some of this information. If true, it would be a pretty remarkable tactic, huh? Keep the Attorney General out of the loop with regards to evidence that Karl Rove had (and presumably still) had politicized DOJ. And by doing so, prevent him from actually realizing the extent of the politicization?

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.

In a classic non-denial denial, Karl Rove makes it clear that he did talk to people about Siegelman’s prosecution–even while he denies that he spoke to anyone in DOJ about it.

As I posted three minutes before TPM posted these "exclusively" (huh), Rove has submitted answers to questions that Lamar Smith decided to ask him about Siegelman, in lieu of actually showing up before Congress and answering questions that someone without an interest in covering up Republican politicized prosecutions might ask.

We can talk about these documents in more detail in comments (and I’ll post a timeline in a follow-up post). But here’s the most important part of the question and answers. Smith repeatedly asks Rove whether or not he ever communicated with:

Department of Justice officials, State of Alabama officials, or any other individual about the investigation, indictment, potential prosecution, prosecution, conviction, or sentencing of Governor Siegelman

And repeatedly, Rove answers that he has never directly or indirectly communicated with:

Justice Department or Alabama officials [] about the investigation, indictment, potential prosecution, prosecution, conviction, or sentencing of Governor Siegelman

Rove would not make the same denials about talking to "any other individuals" he did about DOJ and Alabama officials.

Now to be fair to old Turdblossom, Rove does add this caveat, repeatedly:

nor have I asked any other individual to communicate about these matters on my behalf

But that’s not the same thing as answering whether he spoke to anyone about it all.

So, even with Rove’s careful parsing, even having gotten questions tailor made to allow Rove to squirm out of answering real questions on this matter, he basically refuses to deny that he communicated about Siegelman’s prosecution with other people. Rove doesn’t even deny he spoke to Bill Canary or Rob Riley (Rob is the son of the governor, and therefore not an Alabama official) about it, which is one of the central implications of all the allegations out there!

It was a nice trick, Lamar Smith, to try to pretend that Rove had answered real, antagonistic questions about his involvement in the Siegelman affair. But I think all you’ve accomplished is to make it clear that he was, in fact, involved in the plot to prosecute Governor Siegelman.

[As a reminder, Governor Siegelman will chat with us tomorrow at 12ET/9PT, so we’ll get the opportunity to ask him what he thinks of this wild parsing.]