The Inventory of Blagojevich Wiretaps

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The Sun-Times reports yet more wiretaps used in the Blagojevich investigation. From the complaint, we knew of:

  • Two bugs in Friends of Blagojevich office
  • Wiretap on Blagojevich home land line

From the motion to release the wiretaps related to the horse racing scheme, we learned of:

  • Wiretap on Lon Monk’s cell phone

And this article reports:

  • Camera focused on entrance to Friends of Blagojevich office
  • Wiretaps on cell phones of three close Blago advisors (this may or may not include the one on Monk)

Recall that when Fitz asked for a 90 day extension, he mentioned the thousands of tapes they had to go through. It sure sounds like thousands to me.

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More Archiving Headaches for the Poor Bush Administration

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This time, with a judge telling them to go look again for those missing White House emails.

The United States District Court for the District of Columbia today granted the National Security Archive’s emergency motion for an extended preservation order to protect missing White House e-mails.  With the transition from the Bush Administration to the Obama Administration taking place in six days, and all the records of the Bush White House scheduled for a physical transfer to the National Archives and Records Administration (NARA) on that same day, the Court has directed the Executive Office of the President (EOP) to search all its computer work stations and has ordered EOP employees to surrender any media in their possession that may contain e-mails from March 2003 to October 2005.

“There is nothing like a deadline to clarify the issues,” said Archive Director Tom Blanton.  “In six days the Bush Executive Office of the President will be gone and without this order, their records may disappear with them.  The White House will complain about the last minute challenge, but this is a records crisis of the White House’s own making.”

Counsel for the Archive, Sheila Shadmand from Jones Day made clear: “The White House has been on notice since we filed our lawsuit a year and a half ago that they would have to retrieve and preserve their e-mail.  Instead of coming clean and telling the public what they have been doing to solve the crisis, they refused to say anything.  At this point, it is critical to preserve evidence that can help get to the bottom of the problem and prevent it from happening again.”

Magistrate Judge John M. Facciola has scheduled an emergency status conference today at 2 p.m. to consider additional measures that may be necessary to protect the records during the transition. (Courtroom 6 of the E. Barrett Prettyman Federal Courthouse)

I can just see them now, the same folks who have been talking about their sacred duty to bury things for 12 years deliver all their documents to the National Archives, trying to explain how it was that they accidentally destroyed Scooter Libby’s hard drive and Karl Rove’s Blackberry.

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Those Evil Dems Are Preventing Bush from Archiving Properly

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facade.gifI noted the other day that–after years of trying to limit the Bush Administration’s responsibilities under the Presidential Records Act–the Bush Administration had found religion and was insisting that it had to box up all the documents proving they acted improperly when they fired nine US Attorneys. Basically, the first thing they did after the new year was to send Judge Bates a status report describing their solemn duty to throw everything in boxes, hopefully to make it unavailable for five years (to be fair, DOJ–and not Dick Cheney–sent the status report, so this is only partly hypocritical).

Although the PRA generally restricts access to presidential records for a period of five years (or until the Archivist completes processing and organizing the records), and further restricts disclosure of certain categories of information for a period of up to 12 years when presidential records are requested under the Freedom of Information Act, see 44 U.S.C. § 2204, the PRA contains special-access provisions that are relevant here. First, “[n]otwithstanding any restrictions on access imposed pursuant to section 2204, . . . subject to any rights, defenses, or privileges which the United States or any agency or person may invoke, Presidential records shall be made available . . . pursuant to subpoena or other judicial process issued by a court of competent jurisdiction for the purposes of any civil or criminal investigation or proceeding[.]” 44 U.S.C. § 2205(2)(A). Second, the same exceptions to restricted access apply to requests for access to presidential records of a former President by “an incumbent President if such records contain information that is needed for the conduct of current business of his office and that is not otherwise available.” Id. § 2205(2)(B).[my emphasis]

As I noted earlier this week, HJC believed–and Bates concurred–that putting these documents in boxes and requiring legalese to open them again might cause a bit of delay (not that that was the idea, I’m sure).

Sure enough, Bates was carried through on his concerns, and got both sides to stipulate that these documents will remain at the White House until the suit is done (and/or HJC gets their grubby paws on it). 

Defendants will create a copy set of all materials responsive to the subpoenas, including both paper and electronic documents, in hard copy format to be stored, segregated, and maintained at the White House for use in this litigation until this litigation is finally resolved.

[snip]

Read more →

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Shorter Schloz' Criminal Referral

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Is here. Or rather, the Inspector General’s report describing his criminal referral for lying to Congress.

We have referred this matter to the U.S. Attorney’s Office for the District of Columbia for a decision on whether the evidence warrants a criminal prosecution. We provided to the prosecutor the evidence we gathered in the course of our investigation, including transcripts of interviews and relevant documents and e-mails.

[snip]

Schlozman is no longer employed by the Department and, therefore, is not subject to disciplinary action by the Department. We recommend, however, that, if criminal prosecution is declined these findings be considered if Schlozman seeks federal employment in the future. We believe that his violations of the merit system principles set forth in the Civil Service Reform Act, federal regulations, and Department policy, and his subsequent false statements to Congress render him unsuitable for federal service.

Of course, the report is dated July 2, 2008. So what has happened?

Here’s the answer to that question:

We referred the findings from our investigation to the U.S. Attorney’s Office for the District of Columbia in March 2008. We completed this written report of investigation in July 2008.

The U.S. Attorney’s Office informed us on January 9, 2009, of its decision to decline prosecution of Schlozman. The Interim U.S. Attorney, Jeffrey Taylor, was recused from the matter and the decision.

So, after taking ten months to decide whether or not to prosecute (ten months which happened to include an election in which one of those named in the report–Hans Von Spakovsky–served on FEC), they now release the report. Nice.

Consider this a working thread. I need to run out for a few hours, and I assume that WO and others will get a good start on this before then.

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The Congressional Research Service Says the Senate Can Exclude Burris

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Jane (here, here, and here) and bmaz (here, here, and here) have been diligently chronicling the continuing saga of seating Roland Burris. In the last week, we’ve seen Reid and Durbin scream Go! Stop! Go! at Burris.

But it turns out, since last Monday, they’ve had a Congressional Research Service study explaining whether or not they have to seat Burris, one they seem to have lost in all the excitement. It gives a basis I’ve not heard yet on which to exclude Burris (no link yet). 

Under the Powell decision and rationale, and under the express constitutional grant of authority, the Senate (and House) may, in addition to examining “qualifications” of Members-elect, examine the “elections” and “returns” of their own Members, that is, whether an individual presenting valid credentials has been “duly” chosen. A few years after the Powell decision, the Supreme Court in Roudebush v. Hartke, 405 U.S. 15 (1972), clearly affirmed the right of the Senate to make the final and conclusive determination concerning the election process and seating of its own Members.

[snip]

Additionally, the Senate has from time-to-time examined the election or selection process (prior to the adoption of the Seventeenth Amendment in 1913, Senators were selected by state legislatures) to see if corruption or bribery has so tainted the process as to call into question its validity.

All that says, really, is to look beyond just Powell to Roudebush as well to see whether or not the Senate can exclude Burris if it wants (bmaz assures me he will look up Roudebush once he gets done with his actual lawyering today).  And that corruption or bribery is fair game.

That said, even with Burris’ admission that he talked to Lon Monk about the seat, the way in which Blago’s defense-or-maybe-not lawyer Sam Adam Jr. brokered the appointment, and other dubious ties between Burris and Blago, it’s not clear that Congress yet has a clear case that Burris’ appointment–as distinct from Blago’s earlier attempts to sell the seat–involved bribery or any corruption outside the norm in Chicago politics. 

Update: Lawrence Tribe weighs in on the "they can exclude Burris" side. Note, this appears to have been published before Obama said he was staying out of this. 

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The Reid/Durbin Fabrication On Burris

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burris1thumbnail.thumbnail.jpgBy now you know how poorly Harry Reid and Dick Durbin have played their aces and eights hand on the Roland Burris appointment to Barack Obama’s former Senate seat. Reid and Durbin went all in with their chips on the Illinois Secretary of State and, predictably, lost their pleated dandy shirts.

Illinois law and the Constitution have always been contra to Reid and Durbin’s intransigence on Burris, but the disingenuous duo have always fallen back on their precious ancient Senate Rule II. They have steadfastly portrayed themselves as honorable protectors of the high ground of ethics, and citizens and the rubes in the media have bought off on it. To wit, Durbin grandly proclaimed late Friday:

…the Senate seat could remain vacant until Blagojevich is removed from office and the lieutenant governor takes over, making a fresh appointment.

He said the Senate cannot waive a 125-year-old rule requiring the signatures of both the governor and the secretary of state on any election or appointment.

Now, it is hard to tell whether these lustrous paragons of virtue are being intentionally dishonest, or are simply tragically ignorant of the questionable foundation of the argument they rely on. But it is one or the other. First off, as Jane pointed out Friday,

the 1884 Senate rule Durbin and Reid rely on was promulgated before the passage of the 17th Amendment as well as before the Supreme Court decision in Powell v McCormack. Reid and Durbin are duplicitous in thinking their antiquated Senate rule trumps the official selection pursuant to the 17th Amendment and Illinois statutory law.

So, there is that. But, guess what? After all this, it turns out the vaunted Senate Rule II isn’t even the bright line mandate they have been stating. In fact, Senate Rule II is simply an antiquated suggestion for a document template. While subparagraph 2 of Rule II mandates that the Secretary of the Senate keep a journal of all certificates signed by the governor and secretary of state of the appointing electing and/or appointing state for each Senator, the operative language on the form of the certificate is, contrary to what Reid and Durbin have been stating, not mandatory in the least. From the official Senate Rules:

3. The Secretary of the Senate shall send copies of the following recommended forms to the governor and secretary of state of each State wherein an election is about to take place or Read more →

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The Method to Blagojevich's Sam Adam's Madness

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I just reviewed Burris’ testimony before the impeachment committee. I was struck by Sam Adam Jr.’s efforts to orchestrate a wiretap that might exonerate Blago of any charges he attempted to sell the Senate seat for personal gain. Here’s what happened.

December 26, afternoon: Sam Adam Jr., a Blago lawyer who may or may not be part of Blago’s defense team, called Burris and told him he had something urgent to tell him. Burris was curious what he had to say, so–even though he was preparing for a black tie event, told him to come over. Presumably, even if Adam called from Blago’s tapped phones, this conversation would be minimized bc of attorney client privilege.

December 26, 4PM: Adam shows up. They have a conversation. Since it occurs in a place presumably free of wiretaps, we only have Burris’ version.

December 28, 4PM: Adam shows up to Burris’ house again. Same thing: presumably this conversation wasn’t tapped, so we only have Burris’ version.

December 28, shortly thereafter: Blago calls Burris and offers him the seat. Blago goes on at some length (per Burris’ description) listing Burris’ qualifications. Gosh. It’s as if Blago were performing an honest offer for the Senate seat, complete with listing all the reasons Burris is qualified. This conversation is on tape, and will make a nice trial exhibit to prove that Blago really was only trying to appoint someone qualified for the seat, and not seeking personal gain for it.

December 30: Blago announces the pick in a joint press conference. I find the delay interesting; something I’ll come back to. 

Isn’t that all neat and tidy? What I find particularly interesting is how it matches up with what we know of the offer Blago made to Danny Davis before he made an offer to Burris. 

December 24 morning; Davis and Sam Adam Jr. meet in Davis’ Chicago office. This conversation would not only not be tapped, but would be protected by legislative privilege. Like Burris, Davis had previously said he would not accept the spot, but he heard Adam’s offer anyway:

Davis said he was told "the governor would like to appoint me to the vacant spot." After Blagojevich was arrested Dec. 9, Davis, who sought the appointment from him when he thought Blagojevich was playing it straight, said he would not take the job if offered. Read more →

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Lon Monk and Roland Burris

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There were two things of note that came up at yesterday’s Roland Burris testimony before the IL impeachment committee. His $1.2 million campaign loan gift from Joseph Stroud–who was also giving to Blagojevich at the time (who, incidentally, also employs Vicki Iseman as a lobbyist). And, his discussion(s) with Lon Monk about wanting the Senate Seat.

The Monk revelation is important for several reasons:

  • It violates the spirit–though not the letter–of Burris’ affidavit describing his appointment
  • Monk is a central player in the Blago complaint–and was wiretapped himself
  • The wiretaps Fitz was trying to get the legislature pertain to a scheme between Blago and Monk

The Monk disclosure violates the spirit of Burris’ affidavit

In the affidavit he submitted to the committee, Burris claimed that, 

Prior to the December 26, 2008 telephone call from Mr. Adams Jr., there was not any contact between myself or any of my representatives with Governor Blagojevich or any of his representatives regarding my appointment to the United States Senate.

Yet, in response to a question from State Rep Jim Durkin about whether he had talked to anyone "associated" with Blago, Burris reluctantly admitted he spoke with Monk about the seat, "in September or maybe it was in July."

Now, Burris may well say that he didn’t consider Monk a "representative" of Blago. Monk used to be Blago’s Chief of Staff, but was no longer employed by Blago when Burris had the conversation(s) with him. Furthermore, Burris claims he didn’t read the Blago complaint, which doesn’t name Monk by name anyway, so there’s no reason why the repeated mention of Lobbyist 1 in the complaint should have led Burris to reveal his contacts with that same Lobbyist 1. So Burris’ conversation with Monk certainly doesn’t contradict the letter of his affidavit.

Nevertheless, Burris was chatting about the seat with someone close to Blago, in the process of trying to drum up state business from that lobbyist specifically in context of his ties to Blago.

Monk was a central player in the Blago complaint

Burris’ revelation is all the more interesting given Monk’s role in the Blago complaint. Blago apparently used him to pressure potential donors on several schemes. Blago said Monk was going to hit up a Tollway Contractor for $500,000 tied to a $1.8 billion road project. 

According to Individual A, after Individual B left the meeting on October 6, 2008, Read more →

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Blago's Dog and Pony Presser

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Okay EW is tied up and will be along in a bit, but Rod Blagojevich just had a fascinating press conference. Like a demented king (there is that Elvis parallel again) holding forth in his court. Probably not for long, but the guy knows how to play a room, you have to give him that.

Blago rambled around about how he has brought healthcare to the poor, which he actually did do, but of course it was how he did it that is the problem. The biggest LEGAL issue they’ve got on him for is that he pushed through the Family Care Program in Illinois. Doing so was completely illegal (the Legislature had said no once via a vote, and then once again via a separate modality). It was a way to get healthcare to those in the 400% poverty level; a really laudable policy if you like people, but really horrible legally.

As many of you have seen, I, in the long run, care very much about the process of law, and irrespective of the good motives, that process must be followed. He didn’t.

My take, Blago is on drugs, and damn good ones too. Jeebus, he was even quoting Alfred Lord Tennyson at one point. If not drugs, he is completely loopy. One of his former aides thinks that is the case. Josh Marshall agrees.

Discuss.

Update, from ew: Here’s what I think he’s doing. He is going to the voters over the head of the lege, exacting a cost for what they’re doing by painting himself as the champion of the people and the lege as just selfish politicians who want benefits they won’t give to taxpayers. He’s also taking a few specific counts and flipping them–concentrating on his goals, rather than his illegal means to get them done. From his presser:

The causes of the impeachment are because I’ve done things to fight for families that are with me here today.

bmaz mentioned the FamilyCare program above. From the Impeachment Report, starting on page 29.

The evidence showed that the Governor proceeded with the expansion of a program known as "FamilyCare" over the objection of the Joint Committee on Administrative Rules ("JGAR"), despite the fact that, under state law, JCAR’s objection barred the Governor from doing so. The issue presented herein is not the merit of expanded health care coverage, but rather the authority Read more →

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Blagojevich Impeached

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When it became clear that Nixon would be impeached, he had the good sense to step down. Not so Blago, who vowed today to remain governor in spite of the 114-1 vote in the IL House in favor of impeaching him today.

In a historic vote, the Illinois House has impeached Gov. Rod Blagojevich, directing the Senate to put the state’s 40th chief executive on trial with the goal of removing him from office.

The vote by the House was 114-1 and marks the first time in the state’s 190-year history that a governor has been impeached, despite Illinois’ longstanding reputation for political corruption.

Rep. Milt Patterson (D-Chicago) was the lone vote against impeaching the governor. Patterson, from Chicago’s Southwest Side, said after the roll call that he didn’t feel it was his job to vote to impeach the governor. He declined comment on whether he approved of the job Blagojevich is doing.

A Blagojevich spokesman said the governor will not resign. A 2 p.m. news conference with the governor is scheduled for the James R. Thompson Center in downtown Chicago.

Then again, resignation is the one chit that Blago has to use with Fitz, so it’s no surprise he won’t resign … yet.

Next up, a trial in the IL Senate.

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