If the Questions Are So “Novel” Then How Can You Argue the Privilege Exists?!?!?

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Someone really ought to call Fred Fielding on his bullshit. Today, perhaps because he reads Murray Waas (I promise, I will return to that post), Fred’s offering further negotiations in the matter of Harriet and Josh and Karl and a stack of documents. In his latest letter to Conyers, Fred says,

[A stay on Bates’ order pending appeal] will provide appellate consideration of the novel questions at stake in this matter [my emphasis]

Fred. I’m not a lawyer, so I could be wrong here. But if even you are admitting that these are "novel" questions, aren’t you, in fact, agreeing with what both John Bates and Linda Sanchez have said all along, that you’re just making this shit up!!! As Bates said,

Indeed, the aspect of this lawsuit that is unprecedented is the notion that Ms. Miers is absolutely immune from compelled congressional process. The Supreme Court has reserved absolute immunity for very narrow circumstances, involving the President’s personal exposure to suits for money damages based on his official conduct or concerning matters of national security or foreign affairs. The Executive’s current claim of absolute immunity from compelled congressional process for senior presidential aides is without any support in the case law.

This absolute immunity shit doesn’t exist. Linda Sanchez knows it, John Bates knows it, and, apparently, you know it. So drop the pretense and send us Turdblossom to testify already, okay? 

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Native Tears

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Via the Washington Post, the verdict has been rendered at long last in the Cobell litigation

A federal judge ruled Thursday that American Indian plaintiffs are entitled to $455 million in a long-running trust case, a fraction of the $47 billion they wanted.
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Robertson’s final number is close to government estimates and far from the billions sought by plaintiffs in the 12-year trial. The lawsuit _ filed on behalf of a half-million American Indians and their heirs _ claims they were swindled out of billions of dollars in oil, gas, grazing, timber and other royalties overseen by the Interior Department since 1887.
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At issue was how much of the royalty money was withheld from the Indian plaintiffs over the years, and whether it was held in the U.S. treasury at a benefit to the government.
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Because many of the records have been lost or destroyed, it has been up to the court to decide how to best estimate how much the individual Indians, many of whom are nearing the end of their lives, should be paid.
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The government proposed paying $7 billion partly to settle the Cobell lawsuit in March 2007, but that was rejected by the plaintiffs.

In a January decision, Robertson said the Interior Department had "unreasonably delayed" its accounting of the money owed to landholders and that the task was ultimately impossible. He called the June trial to consider whether money was owed, and, if so, how much was owed.

The class-action suit deals with individual Indians’ lands and covers about 500,000 Indians and their heirs.

This is a giant, landmark case that has been screwed up and slanted against the Native plaintiffs from the start. The US government has been dishonest, dismissive and disingenuous every inch of the way. In fact, this is so true that the original judge assigned to the case, Royce Lamberth, not necessarily a bleeding heart understand you, not only had the following to say, he literally made it part of a formal interlocutory opinion in the case. Lamberth stated that the United States Government, and it’s Department of the Interior was

…a dinosaur — the morally and culturally oblivious hand-me-down of a disgracefully racist and imperialist government that should have been buried a century ago, the pathetic outpost of the indifference and anglocentrism we thought we had left behind.

For this singular demonstration of honesty and perspective, the Bush Department of Justice had Lamberth removed from the case. Read more →

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“It Was Ivins, With a Flask, 200 Miles from the Site of the Crime”

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I just finished watching the DOJ/FBI press conference on the anthrax investigation, and our crack DOJ wants us to believe that, by providing a lot of circumstantial evidence that places Bruce Ivins in the same room as a flask full of anthrax used in the attack, they’ve proven not only that Ivins was involved in the crime, but that he was the only one involved in the crime.

In other words, they haven’t solved this crime, but they want us to all go away and pretend they have.

Specifically, the only evidence that Ivins actually drove to Princeton to mail the anthrax is that he could have. And that he had a latent obsession for sorority girls from sorority that had an office–but not girls–in the vicinity of the mailbox in question. And that he had a porn-related post office box in an area where it was possible to buy the envelopes used in the crime (though you could probably say that about 300,000 other people had ready access to post offices that also had the same envelopes available). Oh, and by the way, there’s no reason to tie Ivins with the handwriting that appeared on those envelopes that so many other people could have gotten, either.

While what I’ve seen of their case so far makes a pretty compelling argument that Ivins was involved in creating the anthrax, they’ve got nothing that explains how it walked out of Ft. Detrick, got into envelopes, and got sent to a bunch of media figures and senators. Importantly, their "motive" for the selection of Leahy and Daschle is piss poor.

And, as I’ve said twice already, if they take their "motive" seriously: a desire to make sure anthrax vaccines were continued, a desire to pass the PATRIOT Act, and a reason to dislike Daschle and Leahy, Scooter Libby (who also lived in an area where he could have gotten those envelopes) and Dick Cheney had much stronger motives for sending the anthrax.

But don’t worry, the FBI says. We’ve got Ivins 200 miles away and no real motive and no real evidence tying him to the emptying the flask, but since we used some really cool science to place Ivins with the flask, that should be good enough for you.

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The Case Against Ivins, Search Warrant One

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As many of you have noted, the Ivins documents are here.

I’ve just gotten through the first attachment to a search warrant (for a November 1, 2007 search), and here’s the evidence as summarized:

Ivins Was Inexplicably Working Late Just Before the Two Attacks

This is the most compelling evidence, IMO. It shows that Ivins was alone in his lab for two hours each on September 14, 15, and 16–just before the "media" letters were sent on September 17 or 18. And then he was alone in his lab every night from September 28 through October 5, leading up to the October 9 postmark on the "senate" letters (note, there was a weekend and a holiday in this window). Ivins’ explanation for those session was not very convincing.

Ivins Turned Over Incorrect Samples to Investigators

When Ivins first submitted samples of the anthrax he was working on in February 2002, the samples were unusable because he didn’t follow protocol. He submitted a second sample in April 2002. In April 2004, an FBI Agent went into his lab and identified a bunch of samples he had not turned over. There is a dispute between FBI and Ivins over whether Ivins admitted his anthrax matched that used in the attack or not.

Crazy Talk from 2000 to 2001

The FBI submitted a bunch of email messages from 2000 to 2001, which they claim correlate with the Al Qaeda-related messages on the letters. I find this less compelling, partly because of the timing involved.

Anthrax

The FBI talks about Bruce Ivins’ stress about problems with the anthrax vaccine in 2000. But that doesn’t come off as all that obsessive–aside from normal work stress.

June 28,2000, "Apparently Gore (and maybe even Bush) is considering making the anthrax vaccine for the military voluntary, or even stopping the program. Unfortunately, since the BioPort people aren’t scientists, the task of solving their problem has fallen on us.

The Sorority

Yes, Ivins did have an obsession with the KKG sorority–which the FBI uses to argue he mailed the anthrax from a mailbox not far from a KKG office. This is a stretch, IMO.

Greendale School, 4th Grade

The FBI presents an interesting argument for the Greendale School reference, which I’ll cite in full:

The investigation into the fictitious return address on envelopes used for the second round of anthrax mailings, "4th GRADE," "GREENDALE SCHOOL," has established a’possible link to the American Family Association (AFA) headquartered in Tupelo, Mississippi. In October 1999, MA, a Christian organization, published an article entitled "AFA takes Wisconsin to court. " The article describes a lawsuit filed in federal court, by the AFA Center for Law and Policy (CLP), on behalf of the parents of students at Greendale Baptist Academy. Read more →

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DOJ Wants to Have Its Culprit and Withhold Some Materials, Too

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News reports say something is going to happen today with the anthrax case. But it’s not sure what. NPR reports that DOJ is going to declared its case solved–even while it doesn’t close the case.

Officials close to the anthrax investigation have told NPR that the FBI will declare the case of the 2001 anthrax letters solved Wednesday, but that the case will remain open so agents can follow up on some recent leads.

FBI Director Robert Mueller is expected to brief victims of the attacks, which killed five people and sickened 15, Wednesday morning. The bureau is expected to have a press conference Wednesday as well, though officials have yet to formally announce it.

Forgive me for my skepticism. But when even the traditional media is catching up to Glenn in discovering the circumstantial nature of the case against Ivins, I find this "solved but not really" status really dubious. Here’s the AP on the three gaping holes that at least appear to remain in the government’s case:

The key to the investigation was an advanced DNA analysis that matched the anthrax that killed five people to a specific batch controlled by Ivins. It is unclear, however, how the FBI eliminated as suspects others in the lab who had access to the anthrax.

And then there’s the question of motive. Authorities believe the attacks may have been a twisted effort to test a cure for the toxin. Ivins complained of the limitations of animal testing and shared in a patent for an anthrax vaccine. But for now, it’s not clear what, if any, evidence bolsters that theory.

Investigators also can’t place Ivins in Princeton, N.J., when the letters were mailed from a mailbox there. And the only explanation for why the married father of two might have made the seven-hour round trip is bizarre.

No motive, no way to place Ivins at the scene of the crime, and no apparent way to eliminate the other people (Fox cited four suspects in March based on an email the FBI also has) who could have committed the crime. So, at least from what we’ve seen, just circumstantial evidence and a breakdown after badgering from the FBI. I guess the way we solve crimes in this country is to confront people in shopping malls to see if the person in question commits suicide as a result.

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Conyers to Luskin: We Told You So

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Today it’s Conyers’ turn to take a victory lap with Harriet Miers, Josh Bolten, and Karl Rove. This time, it’s the letter to Luskin that is the most enjoyable, particularly for the paragraph that basically says, "Remember when we said this absolute immunity stuff was bullshit? Well, Judge Bates agrees."

 As your July 29, 2008, letter points out, the "precise legal issue" raised by Mr. Rove’s claim of immunity from our subpoena as a former White House official was before Judge Bates in Committee on the Judiciary v. Miers. Yesterday’s decision in that case provides an unequivocal answer. In accordance with the ruling by Chairwoman Sanchez rejecting your immunity assertion, the court found that the absolute immunity claim is "entirely unsupported by existing case law" and explicitly "reject[ed] the Executive’s claim of absolute immunity for senior presidential aides." Opinion at 78. 

Then, Conyers makes the most of Lamar Smith’s blabby mouth, reminding Luskin that Smith has promised Rove would abide by Bates’ decision.

In his letter to me of July 29, 2008, Committee Ranking Member Lamar Smith also noted the pendency of the District Court case and stated that "Mr. Rove assuredly will abide by the court’s decision when it issues." 

Then again, long ago Luskin assured Dan Abrams that Rove would testify. And we see how that worked out.

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“For your convenience, I attach a copy of the court’s opinion”

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You think Patrick Leahy enjoyed his afternoon, sending letters to Robert Luskin, Fred Fielding, and Michael Mukasey, giving them a week (until August 7) to respond to Judge Bates’ ruling today? (h/t BayStateLibrul).

All the letters are worthy of the guy whom Dick Cheney told to go fuck himself. But my favorite is the letter to Mukasey:

Dear Attorney General Mukasey:

Today, the U.S. District Court for the District of Columbia issued a ruling rejecting the administration’s claims that White House advisors are immune from testifying in response to Congressional subpoenas. The court’s decision also reaffirmed the President’s obligation to provide the specific basis for any executive privilege assertions to provide Congress a means to evaluate those assertions. The administration has not provided that basis despite my requests to do so for more than a year. For your convenience, I attach a copy of the court’s opinion.

Karl Rove failed to appear and testify before the Senate Judiciary Committee last August 2 in response to a subpoena I issued July 26, 2007, as part of the Committee’s investigation into the firing of U.S. Attorneys. It is my understanding that Mr. Rove’s failure to comply was based on an August 1, 2007, letter from White House Counsel Fred Fielding informing the Committee that the President would invoke a blanket claim of executive privilege to direct Mr. Rove not to produce responsive documents or testify before the Committee. Mr. Fielding’s letter cited a memo from the Department of Justice’s Office of Legal Counsel (OLC) to assert that Mr. Rove was "immune from compelled congressional testimony" as an "immediate presidential advisor."

Please advise me by no later than next Thursday, August 7, when you will withdraw the erroneous OLC opinion from Stephen Bradbury relied upon by the White House to justify its non-compliance with congressional subpoenas since that opinion has been repudiated by the court.

In addition, please inform me whether the court’s decision will cause you to revaluate your memos and those from OLC in support of overbroad and unsubstantiated executive privilege claims not only in the U.S. Attorneys investigation, but also in other matters, like the claims used to block Congress from investigating warrantless wiretapping, the leak of the name of undercover CIA agent Valerie Plame for political retribution, and White House interference in the Environmental Protection Agency’s decision-making. Read more →

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BREAKING: Judge Bates Rules for the House

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Judge Bates just issued his opinion in the Miers and Bolten contempt case–and he ruled in favor of the House. Miers will have to appear and Bolten will have to turn over the documents a description of the documents he is withholding. (I guess all it took was for me to post this post.)

This also means Rove will have to appear, as Bates threw out the notion of "absolute immunity."

I’ll have more shortly.

Update: Here’s the opinion. (Note, I’ve fixed my statement above–Bolten has to turn over a description of the documents he is withholding, but not the documents, yet.)

Here’s the crux of Bates’ logic:

Notwithstanding that the opposing litigants in this case are co-equal branches of the federal government, at bottom this lawsuit involves a basic judicial task — subpoena enforcement — with which federal courts are very familiar.

Update: Here’s what Bates thinks of this "absolute immunity" claim:

Indeed, the aspect of this lawsuit that is unprecedented is the notion that Ms. Miers is absolutely immune from compelled congressional process. The Supreme Court has reserved absolute immunity for very narrow circumstances, involving the President’s personal exposure to suits for money damages based on his official conduct or concerning matters of national security or foreign affairs. The Executive’s current claim of absolute immunity from compelled congressional process for senior presidential aides is without any support in the case law. The fallacy of that claim was presaged in United States v. Nixon itself (id. at 706):

neither the doctrine of separation of powers, nor the need for confidentiality of high level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial [or congressional] process under all circumstances.

Also, bonus points to Bates for mentioning Boumediene, which is sure to cause BushCo a whole lot of heartburn.

Update: Here’s Conyers on the decision.

Today’s landmark ruling is a ringing reaffirmation of the fundamental principle of checks and balances and the basic American idea that no person is above the law. Judge Bates’ decision makes clear that the Congress had the right to subpoena Harriet Miers to learn of her role in the US Attorney firings, that her claim to be immune from subpoena was invalid and that the Committee was entitled to challenge that claim in Court. The Judge also ruled that the White House may not claim Executive Privilege over documents without describing them in reasonable detail Read more →

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Why the House Is Waiting to Hold Rove in Contempt

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I wanted to elaborate on what I said in yesterday’s post–to talk about where I think Rove’s contempt vote is going.

As I said yesterday, HJC expects that John Bates to rule on their suit pertaining to Harriet Miers and Josh Bolten sometime in August. It could be the beginning of August, it could be the end of August, but sometime in August. I know some on HJC are cautiously optimistic that Bates will give them a reasonable ruling. But, for all the reasons Kagro X lays out, I’m not.

The House Judiciary Committee subsequently filed suit in federal court, seeking an order compelling the US Attorney to proceed with the prosecution, and somehow — magically! — the case was assigned to former Whitewater Deputy Independent Counsel John D. Bates, the federal judge who dismissed the Plame lawsuit, dismissed the Cheney Energy Task Force lawsuit, upheld the validity of Bush’s signature on an a bill not properly passed in the same form by both houses of Congress, and dismissed the DNC’s lawsuit seeking to force the FEC to rule on John McCain’s attempt to withdraw from his presidential campaign’s public financing commitments.

I don’t know about you, but I’m not really feeling the fear with respect to the statutory contempt thing.

Bates specializes in rulings that say (as his Plame ruling did), "I can see why you’re concerned about the issue in chief, but I’m not going to rule in favor of you because of this technicality."

Now, no matter how Bates rules, that case will continue in the courts. Either the White House will appeal an adverse ruling, or Congress will, or the technicality Bates relies on will just postpone a court judgment. Nancy Pelosi said in a conference call earlier this year that she would continue to pursue this ruling in the courts even after Bush is chased out of office, because the principle is that important. So that ruling will continue.

Meanwhile, one of the most likely technicalities for Bates to fall back on in the Miers and Bolten ruling is centrally important to Rove’s future. At the hearing on the suit in June, Bates asked the House Counsel specifically why he wasn’t pursuing inherent contempt.

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Rove’s Contempt: For All the Reasons We’ve Been Talking About

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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.

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