I can’t tell you how many times I started this post–an open thread for predictions of who, how many, how explicit the crimes that Bush would pardon. But every time I started the post, I deleted it–thinking it was unseemly to start Pardon Watch this early (though, admittedly, a full year after Libby’s commutation kicked off the self-protective pardon-fest).

But now Charlie Savage has broached the subject. And Dan Froomkin piled on, too, noting the vile Victoria Toensing calling for pre-emptive pardons of any and all long-term investigations:

‘The president should pre-empt any long-term investigations,’ said Victoria Toensing, who was a Justice Department counterterrorism official in the Reagan administration. ‘If we don’t protect these people who are proceeding in good faith, no one will ever take chances.’

(I guess Victoria doesn’t have much faith in McCain’s ability to win this election….)

So I hereby kick off a once-monthly post calling for predictions on how many Get Out of Jail So You Can Keep Me Out of Jail Free cards Bush issues. Plus one for Roger Clemons, because Bush is a baseball guy…

We’ll give out five hub-caps, one for the most accurate guess each month. bmaz–I’m adding five hubcaps onto your normal football requisition.

Here are my current predictions and Bush’s likely logic behind each:

• Karl Rove–a vague pardon for any and all crimes committed during the Bush Administration, with an added "Official Duties" claim to give him qualified immunity against the lawsuits
• Scooter Libby, because outing a CIA NOC on the Vice President’s order shouldn’t be criminal
• John Yoo, because a President really ought to be able to crush the testicles of a person’s child
• Brent Wilkes (to protect Dusty Foggo) but not Duke Cunningham (because he’s a snitch)
• Jose Rodriguez, since the torture portrayed on the torture tapes was ordered by Bush before the relevant opinions were written
• Alberto Gonzales, so Bush can return the favor of when Gonzales cleansed his drunk driving records in the past
• Steven Griles, because the oil companies really need to be able to rip off American taxpayers to be competitive
• Bandar Bush bin Sultan, because it will be a lucrative business move in the long run and because I can assure you the Bush family doesn’t want you to learn about the covert ops the Saudis were doing with money laundered through defense contract deals
• Roger Clemens, because Bush is a baseball guy

That’s it for me for this year’s predictions–a relatively modest list, I think. No Cheney, no Addington (I think both would consider it an indignity to be pardoned by someone like Bush). No Abramoff, because he’s a snitch. No Jeff Skilling (because he hasn’t be donating to the Republican party of late). None of the legislators (Stevens, Doolittle, Renzi, and the rest of the Abramoff crowd), because it would "taint" Bush’s legacy.

Who am I missing?

Well that was fun. A replay of the premiere of Meet the Bloggers should be up here shortly. [Update: It’s both there now and at left.] The highlight of the piece, IMO, is that Cenk got the name of the Sargeant at Arms in: Bill Livingood. How cool would it be if a guy named "Livingood" walked up to Karl Rove and put him in handcuffs? It’s like something right out of Dickens. I decided yesterday that, in addition to putting Rove in a shipping container on the Mall in front of Congress (don’t worry–we’ll outfit it and air condition it) until he agrees to testify, Congress ought to contract with Blackwater to help Mr. Livingood do the arrest. After all, they’ll do anything for money, right?

Meanwhile, BNF has a petition drive up so you can encourage HJC to respond to being blown off in a timely and forceful manner.

I’ve got to go pack now so I can get a plane to Netroots Nation. I’ll poke my head in occasionally, but I expect to be pretty busy for the next several days. bmaz will have the keys, so maybe ya’ll can discuss whether or not Brett Favre should continue to start for the Packers.

[See the SendKarlRoiveToJail video here.]

Here’s an exchange between Dick Durbin, Senior Senator from Illinois, and Rove acolyte Kyle Sampson about the firing of Patrick Fitzgerald.

Durbin: Were you ever party to any conversation about the removal of Patrick Fitzgerald from his position as Northern District of Illinois US Attorney?

Sampson: I remember on one occasion in 2006, in discussing the removal of US Attorneys … or, the process of considering some US Attorneys that might be asked to resign, that I was speaking to Harriet Miers and Bill Kelley and I raised Pat Fitzgerald. Immediately after I did it I regretted it. I thought, I knew it was the wrong thing to do. I knew that it was inappropriate. And I remember at the time that Harriet Miers and Bill Kelley said nothing, they just looked at me. I regretted it and I withdrew it at the time and I regret it now.

Durbin: Do you recall what you said at the time about Patrick Fitzgerald?

Sampson: I said, Patrick Fitzgerald could be added to this list.

Durbin: And, there was no response?

Sampson: No. They looked at me like I had said something totally inappropriate, and I had.

Durbin: Why did you do it? Why did you recommend, or at least suggest that he be removed as US Attorney?

Sampson: I’m not sure, I don’t remember. I think it was maybe to get a reaction from them. I don’t think that I, I know that I never seriously considered putting Patrick Fitzgerald on a list and he never did appear on a list.

Now put that exchange together with Rove’s non-denial denial that he was involved in having Patrick Fitzgerald fired:

But Robert Luskin, Rove’s attorney, today issued an unequivocal statement about all of this to the Tribune on behalf of Rove, former deputy chief of staff to President Bush, architect of Bush’s presidential campaigns and a private consultant in Washington now.

"Karl has known Kjellander for many years,” Luskin said, "but does not recall him or anyone else arguing for Fitzgerald’s removal. And he (Rove) is very certain that he didn’t take any steps to do that, or have any conversations with anyone in the White House — or in the Justice Department — about doing anything like that.”

Of course, when Rove says "I don’t recall" about an event, it usually means, "I won’t admit it until you show more evidence" about that incident. That is, Rove doesn’t deny that he knew that his close buddy Kjellander discussed firing Fitzgerald. He simply doesn’t recall it. Just like he didn’t recall outing Valerie Plame until his memory got refreshed with hard evidence.

Yet somehow that non-event–Kjellander discussing getting Fitzgerald fired–seemed to reverberate a year later, when Kyle Sampson was putting together his list of US Attorneys to fire. Rove buddy Kjellander, Rove acolyte Sampson. Now perhaps it’s just a coincidence that such close associates of Rove seem to be thinking the same thing. But I don’t think so.

Isn’t it time to ask Sampson whether he ever spoke with Kjellander–or anyone else in Illinois–about firing Fitz?

Unlike HJC, Oversight does not publicly release subpoenas when they serve them. So Mukasey’s cowardly letter begging Bush to invoke executive privilege so he doesn’t have to go to jail for shielding Dick Cheney’s role in outing Valerie Plame is one of the first hints of the scope of what Waxman was after. Here are some details I find particularly interesting.

The subpoenaed documents concern the Department’s investigation by Special Counsel Patrick Fitzgerald into the disclosure of Valerie Plame Wilson’s identity as an employee of the Central Intelligence Agency. The documents include Federal Bureau of Investigation ("FBI") reports of the Special Counsel’s interviews with the Vice President and senior White House staff, as well as handwritten notes taken by FBI agents during some of these interviews. The subpoena also seeks notes taken by the Deputy National Security Advisor during conversations with the Vice President and senior White House officials and other documents provided by the White House to the Special Counsel during the count of the investigation. Many of the subpoenaed materials reflect frank and candid deliberations among senior presidential advisers, including the Vice President, the White House Chief of Staff, the National Security Advisor, and the White House Press Secretary. The deliberations concern a number of sensitive issues, including the preparation of your January 2003 State of the Union Address, possible responses to public assertions challenging the accuracy of a statement in the address, and the decision to send Ms. Plame’s husband, Ambassador Joseph Wilson, to Niger in 2002 to investigate Iraqi efforts to acquire yellowcake uranium. Some of the subpoenaed documents also contain information about communications between you and senior White House officials.

[snip]

Much of the content of the subpoenaed documents falls squarely within the presidential communications and deliberative process components of executive privilege. Several of the subpoenaed interview reports summarize conversations between you and your advisors, which are direct presidential communications. Other portions of the documents fall within the scope of the presidential communications component of the privilege because they summarize
deliberations among your most senior advisers in the course of preparing information or advice for presentation to you, including information related to the preparation of your 2003 State of the Union Address and possible responses to public assertions that the address contained an inaccurate statement. In addition, many of the documents summarize deliberations among senior White House officials about how to respond to media inquiries concerning the 2003 State of the Union Address and Ambassador Wilson’s trip to Niger.

First, as LS astutely points out, Mukasey mis-characterizes the entire investigation, claiming it was about "the disclosure of Valerie Plame Wilson’s identity as an employee of the Central Intelligence Agency." No, AG Mukasey, the investigation was into the disclosure of Valerie’s identity as a covert operative. Your guess why Mukasey does this is as good as mine, but some possibilities thrown out in this thread include:

• Mukasey knows Bush and Cheney insta-declassified her covert status so he wants to carefully maintain that she was not covert
• Mukasey’s primary source of news is Bob Novak’s column, so he genuinely believes that Novak used the word operative as one big mistake, meaning the key leak was Armitage’s
• Mukasey hasn’t read all the documents affirming that she was covert
• Mukasey’s trying to diminish this whole thing to absolve himself from thinking it’s okay that the Vice President outed a CIA operative
• Mukasey disagrees with the Special Counsel interpretation that CIA was taking affirmative actions to keep Valerie’s identity secret

From this mis-characterization, Mukasey launches into a list of things covered by the subpoena. I’m not really sure whether Mukasey lists them this way to establish the "claim" for privilege, or whether he’s trying to warn Bush what they contain. For example, why does Mukasey mention the "handwritten notes taken by FBI agents during some of these interviews" unless he wanted to warn Bush (and Cheney) that Agent Eckenrode had written, "this confirms that Cheney did order the Plame outing" or "Cheney doesn’t admit what Libby admitted–that they had compared stories"?

The request for "notes taken by the Deputy National Security Advisor during conversations with the Vice President and senior White House officials" makes me wonder whether Waxman requested Hadley’s side of the conversations he had with Cheney and Libby the week of the leak, particularly the conversation on July 10, in which Hadley passed on the news from Condi that "the President is comfortable," just after Libby’s own notes include empty space that he left to record what Hadley said, leaving us wondering what the President is comfortable with. Note, too, that Libby tried to declassify Hadley’s notes from this meeting through CIPA, to no avail.

Mukasey mentions "frank and candid deliberations" among senior advisors, listing Cheney, Card, Condi, and Scottie McC. Given the mention of Scottie McC, I’m guessing this reference might be a specific reference to the Libby-exoneration discussions from October 4, 2003. Which raises the question whether Condi was involved in that discussion? (We do know that she and Scottie McC may have discussed saying that Rove didn’t leak at all).

The reference to "deliberations concern a number of sensitive issues, including the preparation of your January 2003 State of the Union Address, possible responses to public assertions challenging the accuracy of a statement in the address, and the decision to send Ms. Plame’s husband, Ambassador Joseph Wilson, to Niger in 2002 to investigate Iraqi efforts to acquire yellowcake uranium" leads me to believe that–at a minimum–the subpoenaed documents would make it very clear that everyone knew Alan Foley had told the White House not to use the uranium claim in the SOTU–and that they had to check with him before they finalized Tenet’s July 11, 2003 statement. The documents also probably include some record of George Tenet making it clear to Condi Rice that NSC, even more than CIA, owned most of the blame for the Niger claim appearing in the SOTU. Also, note the weird construction from Attorney General Orwell. Do the subpoenaed documents include "deliberations concern[ing] … the decision to send" Wilson to Niger? Or do they contain "deliberations concern[ing] … possible responses to … the decision to send" Wilson to Niger? Grammatically, it is the former. If so, is Mukasey referring to CIA deliberations? Or was there some White House deliberation about that trip we don’t know about?

When Mukasey refers to "information about communications between you and senior White House officials," it sure makes me wonder if this is a reference to communication between Bush and Libby–particularly the communication on June 9, 2003, that effectively sparked OVP to go into hyperdrive collecting oppo research on Joe Wilson?

Mostly, though, Mukasey seems intent on shielding not only Cheney’s FBI interview report, which would reveal how he answered when asked, "did you authorize the leak of Valerie Wilson’s name?" but also anything pertaining to the discussions between Hadley, Libby, and Cheney, which would not only reveal the lengths to which Cheney went to try to blame all this on CIA, but also might provide more details about "what the President knew and when did he know it?"

One more detail. I’m certain, from these descriptions, that Libby is among the "senior advisors" listed here. But you note that Mukasey never admits he’s trying to protect communications between the President and a convicted felon?

Update: As I review this, I realize that the White House Press Secretary named in the letter may actually be Ari Fleischer. According to Scottie McC’s book, there was a discussion in the White House–apparently not including Tenet–that led to the July 7 admission that the uranium claim should never have been in the SOTU. That conversation almost certainly included Card, Condi, and Ari; if it also included Dick, it might explain why he ordered the Code Red with Libby that set off the leak of Plame’s identity.

The story of Stephen Payne–who just got canned from his DHS Advisory Committee position because he was selling access in exchange for donations to the Bush Library–makes it clear what a cesspool of political corruption secret and unlimited donations to Presidential libraries can be.

Which is why it is utterly unsurprising that Ted Stevens, a standout in corruption even in Alaska, has placed a hold on a bill designed to make the donations to Presidential libraries transparent.

The argument for keeping the names of donors secret is that some admirers might not want their generosity on public display. But a presidential library is no ordinary charity. It is built with private money and turned over to the National Archives to operate. If requiring disclosure might deter a generous patron with a penchant for anonymity from giving, so be it.

There ought to be a law. Actually, there would be one if it weren’t for Republican Sen. Ted Stevens of Alaska. A measure requiring disclosure of library donations — during a presidency and for four years afterward — has twice passed the House. But Stevens blocked the measure in March, arguing that it was unfair to "change the rules" on Bush — even as library officials claim they haven’t really started fundraising.

I mean, I can totally understand how, to a guy like Ted Stevens, asking the President to refrain from selling our foreign policy to the highest bidder would seem like "changing the rules."

Which is why I’m glad the Blue America-endorsed Mark Begich, the guy running to replace Stevens, is making it a campaign issue.

The American people deserve to know who is giving money to politicians at all levels of government, but especially the presidency. It’s time for Senator Stevens to stop blocking legislation that would require fundraising for presidential libraries be done out in the open. This move – on legislation that has already passed the House – is yet another instance where Stevens is choosing secrecy over transparency. He should lift his hold and let the light of day into back into Washington.

It’s hard to embarrass a guy like Ted Stevens. But I’m all in favor of piling on the charges of corruption against Mr. Toobz.

A number of people have pointed to Ron Fournier’s "breezy correspondence" with Karl Rove in 2004.

In a chain under the subject line "H-E-R-O," Rove replied to an e-mail from Fournier by saying, "How does our country continue to produce men and women like this?"

Fournier replied, "The Lord creates men and women like this all over the world. But only the great and free countries allow them to flourish. Keep up the fight."

Fournier, now the AP’s acting Washington bureau chief, said Monday: "I was an AP political reporter at the time of the 2004 e-mail exchange, and was interacting with a source, a top aide to the president, in the course of following an important and compelling story. I regret the breezy nature of the correspondence."

But thus far, I haven’t seen anyone point out that AP’s love affair with Turdblossom is still going strong. In yesterday’s case, the AP’s Lynn Elber allowed Rove to completely steamroll her (probably all in the name of maintaining AP’s "breezy" relationship with him). Elber was reporting on Fox News EVP John Moody’s nonchalance about employing a contemptuous character like Karl Rove.

John Moody, Fox News executive vice president, was asked if it undercuts the channel’s credibility to have someone with Rove’s "political baggage" in its lineup.

"No," Moody replied, calling the former Bush adviser an authority on politics and adding that the current difference of opinion with Congress is between Rove and lawmakers.

But then Elber portrays Rove’s refusal to testify precisely as he’d like her to–as a combination of traditional executive privilege and the much more audacious absolute immunity that Steven Bradbury dreamed up.

But when a reporter tried to press the point with Moody, Rove jumped in to dispute characterization of the dispute as personal.

"It’s not between me and Congress. I’ve not asserted any personal privilege. This is between the White House and Congress," Rove said.

The issue centers on "the ability of the president to receive advice from senior advisers and for those senior advisers not to be at the beck-and-call of Congress for testimony," Rove said.

[snip]

Rove has said previously he is bound to follow the White House’s guidance, although he has offered to answer questions specifically on the Siegelman case — but only with no transcript taken and not under oath.

[snip]

The White House has cited executive privilege as a reason he and others who serve or served in the administration shouldn’t testify, arguing that internal administration communications are confidential and that Congress cannot compel officials to testify. [my emphasis]

Apparently Elber reported this entire story without ever actually checking what the White House had cited. Because, as I pointed out here, the White House did not once mention executive privilege in their guidance to Rove not to testify.

Now look at the letter Fred wrote Luskin and the letter Luskin sent to HJC. Go ahead look closely. Do you see the words "executive privilege" anywhere in either of those two letters?

It’s not there.

For that matter, check out the memo Steven Bradbury wrote last year rationalizing why Harriet Miers didn’t have to show up–which is what Fielding cites to justify Rove’s absence today. Look closely. See any mention of executive privilege in that memo? Nuh uh. It’s not in there, either.

So Elber’s argument is incorrect when it states that the White House claimed that, "internal administration communications are confidential." Mind you, they do claim that, frequently, but they did not do so in this case. Rather, they argue:

 The President is the head of one of the independent Branches of the federal Government. If a congressional committee could force the President’s appearance, fundamental separation of powers principles–including the President’s independence and autonomy from Congress–would be threatened.

In other words, the White House did not and is not asserting that this pertains to confidential internal administration communications (and how could they? Rove has been blathering about this stuff on TV for six months!). Rather, Bush is just asserting that were he–or top aides like Rove–forced to appear before Congress, it would threaten the institution of the Presidency itself. 

Now, the significance is important beyond the question of whether or not Rove’s "official duties" included the politicization of investigations into Democrats. Once it becomes clear that the White House did not invoke executive privilege (as we typically understand it), then that dramatically undermines Rove’s claim that "I have not asserted any personal privilege." In a traditional executive privilege claim, true, the privilege resides with the President; when he invokes it, he’s basically forbidding an aide from damaging his prerogatives. The absolute immunity privilege also rests on Presidential prerogative. But as Steven Bradbury describes it, at least (and he seems to be the only one who believes in this nonsense), absolute immunity is not a requirement that Rove not testify, it’s a lack of requirement that he show up. As Fielding says, in the letter that asserts absolute immunity,

We have been further advised that because Mr. Rove was an immediate presidential adviser and because the Committee seeks to question him regarding matters that arose during his tenure and relate to his official duties in that capacity, Mr. Rove is not required to appear in response to the Committee’s subpoena. [my emphasis]

The implication, of course, is that Rove can appear, he just can’t be compelled to do so (mind you, we’re still just pretending that Steven Bradbury’s little theory is valid, which I don’t believe it is). If you need any proof that a presidential adviser can appear, if he chooses to do so, look no further than David Addington, who showed up under subpoena to testify before the very same Committee that subpoenaed Rove, pathetically waving the magic Bradbury opinion, yet still, ultimately, showing up. According to Bradbury’s opinion, Addington didn’t have to show up, but he could, and did (for whatever unknown reason). (In fact, according to the Rehnquist opinion on which the magic Bradbury opinion rests, Addington would have absolute immunity but Rove would not, since Rehnquist’s argument applied only to current aides, not aides who had been fired a year earlier.)

Mind you, Bush did tell Rove not to show up (and presumably didn’t tell Addington not to show up).

Mr. Rove is not required to appear in response to the Committee’s subpoena. Accordingly, the President has directed him not to do so.

I’m not really sure how this works–Bradbury’s magic opinion does rest the privilege in the President. But the aide, himself, has the privilege. While I’m sure Bush’s direction is still significant (again, still pretending that Bradbury’s theory isn’t bunk), it’s nowhere near as strong a claim as it would be if the President claimed he was protecting the advice he was given by Rove, which he hasn’t claimed. It’s still a matter between the White House and Congress–but nowhere near as clearly so as if Bush really had invoked traditional executive privilege.

So here’s where Rove snookers his latest AP interlocutor. He claims this is about "the ability of the president to receive advice from senior advisers and for those senior advisers not to be at the beck-and-call of Congress for testimony" when in this case, it is actually about solely "the ability … for [the President’s] senior advisers not to be at the beck-and-call of Congress for testimony." But Elber, apparently without looking at what the White House said, just repeated Rove’s claim without challenging it. Why should she challenge Rove? Her editor, Ron Fournier, would probably just tell Rove to ignore her challenge and "Keep up the fight!"

Which is how, once again, the AP willingly participated in Karl Rove’s successful efforts to spew disinformation.

Well, close enough for PhDs in Comparative Literature…

Man, Waxman must have been preoccupied with submitting his report on Pat Tillman’s death. He was about five hours behind the time when I predicted the letter in response to the Bush Library bribery story would be sent.

Dear Mr. Payne:

I am writing regarding a report that you solicited funds for the George W. Bush Presidential Library in return for access to senior U.S. foreign policy officials. This is a matter that the Oversight Committee will investigate.

According to the Times of London, you solicited funds for President Bush’s library from foreign interests. Specifically, you reportedly offered access to several senior U.S. government officials, including Vice President Cheney, in return for six-figure contributions to the library.

If true, this report raises serious concerns about the ways in which foreign interests might be secretly influencing our government through large donations to the library. Under current law, there are few restrictions on efforts to raise funds for presidential libraries. For example, there are no limits on how much can be raised for a single source, and there is no requirement that donations be disclosed publicly. As a result, a presidential library can solicit secret donations from companies and foreign interests that seek to surreptitiously influence government action. In order to prevent abuses of this kind, the House of Representatives passed legislation last year that requires disclosure of information about donors to presidential libraries.

To help the Committee understand your role in soliciting funds for the George W. Bush Presidential Library, please provide written answers in response to the following questions:

1. What is your affiliation with George W. Bush Presidential Library? Have you been authorized or asked to solicit funds for the library?

2. Have you ever solicited funds for the library from any individuals, governments, companies, or organizations?

3. If you have ever solicited funds for the library, please describe each solicitation, including the persons or organizations solicited and amounts requested and received, and describe whether you arranged or attempted to arrange any meetings for such persons or organizations with U.S. government officials.

In addition, please provide the Committee with copies of any documents relating to contributions to or solicitations of contributions to President Bush’s library.

Man oh man. If I were Payne, I wouldn’t go quail hunting with Dick Cheney any time soon, because he is just going to hate this.

Via TP, the Sunday Times (of London) has an explosive video, showing Bush crony Stephen Payne effectively selling State Department endorsements for former Central Asian Presidents in exchange for six figure donations to the Bush Library.

A lobbyist with close ties to the White House is offering access to key figures in George W Bush’s administration in return for six-figure donations to the private library being set up to commemorate Bush’s presidency.

Stephen Payne, who claims to have raised more than $1m for the president’s Republican party in recent years, said he would arrange meetings with Dick Cheney, the vice-president, Condoleezza Rice, the secretary of state, and other senior officials in return for a payment of $250,000 (£126,000) towards the library in Texas.

[snip]

Asked by an undercover reporter who the politician would be able to meet for that price, Payne said: “Cheney’s possible, definitely the national security adviser [Stephen Hadley], definitely either Dr Rice or . . . I think a meeting with Dr Rice or the deputy secretary [John Negroponte] is possible . . .

“The main thing is that he [the Asian politician] comes, and he’s well received, that he meets with high-level people . . . and we send positive statements made back from the administration about ‘This guy wasn’t such a bad guy, many people have done worse’.”

As Kagro X notes, there’s a name for this: it’s called B-R-I-B-E-R-Y.

Now perhaps this is not common practice for those raising funds for Bush’s Library. And perhaps it’s not common practice for those appointed to national security advisory committees like the Homeland Security Advisory Committee (on which Payne serves) or the Presidential Foreign Intelligence Advisory Board. But I can’t help but note the similar profile between Payne–who is apparently selling influence–and Ray Hunt. Of course, Hunt isn’t dealing lobbying contracts with dubious foreign figures. Rather, he’s making oil deals. And for some reason, the State Department not only overlooked the fact that Hunt’s premature deal with Kurdistan might destabilize Iraq, but they pointed Hunt Oil to new business elsewhere in Iraq.

Gosh. The State Department sure does like Bush’s cronies who come up with big chunks of cash for Bush’s library, doesn’t it?

Here’s how Dana Jill Simpson describes Karl Rove’s involvement in the Siegelman prosecution.

What I understood, or what I believed Mr. Canary to be saying, was that he had had this ongoing conversation with Karl Rove about Don Siegelman, and that Don Siegelman was a thorn to them and basically he was going to — he had been talking with Rove. Rove had been talking with the Justice Department, and they were pursuing Don Siegelman as a result of Rove talking to the Justice Department at the request of Bill Canary.

[snip]

[After the prosecution launched by Alice Martin was dismissed in 2004] Bill Canary and Bob Riley had had a conversation with Karl Rove again and that they had this time gone over and seen whoever was the head of the department of — he called it PIS, which I don’t think that is the correct acronym, but that’s what he called it. And I had to say what is that and he said that is the Public Integrity Section.

[snip]

Q About what?

A About Don Siegelman and the mess that Alice Martin had made and it was my understanding in that conversation after that conversation that there was a decision made that they would bring a new case against Don Siegelman and they would bring it in the Middle District,

[snip]

Q Okay. And did Rob give you the name of the person at — I’m just going to call it Public Integrity — that he thought he understood Karl Rove had spoken to?

A No, he said it was the head guy there and he said that that guy had agreed to allocate whatever resources, so evidently the guy had the power to allocate resources, you know.

Q To the Siegelman prosecution?

A Yes. And that he’d allocate all resources necessary.

So, in sworn testimony, Simpson claims that, sometime before November 2002, Karl Rove had spoken to DOJ and–"as a result of Rove talking to" DOJ, they were pursuing an investigation of Don Siegelman. And then, after the first case against Siegelman had been dismissed in 2004, Rove again spoke with DOJ–with the Public Integrity Division specifically, probably Noel Hillman from the description–and got reassurances that PIN would "allocate all resources necessary" to a second Siegelman prosecution. Rove’s second conversation may have also led DOJ to conduct the second investigation out of the Middle District of AL, which meant they had a marginally competent–but political loyal–USA conducting the case and they had a judge with a grudge to settle against Siegelman.

Now, Michael Mukasey appears to believe that at least one of those conversations amounted to sharing evidence with DOJ of an alleged crime, which DOJ then independently decided had merit.

Mukasey: I don’t see publicizing the source of an allegation if the allegation turns out to be true.

So to take Mukasey’s charitable view towards Rove’s alleged actions in this matter, Rove went to DOJ in 2002 and tipped them off to a potential crime, then went back in 2004 and made sure the division investigating that crime devoted enough resources to the case.

Taken in that charitable light, neither of those two actions are necessarily illegal. In the first, Rove is basically serving as a tipster–a good citizen (ha!) alerting the authorities of a potential crime. In the second, he is serving as an executive branch official making sure that an executive branch agency allocates resources in the way that the Administration wants it to to.

Which–again, looking at it in the most charitable light–would not be a problem, except for two things. First, there’s the reason behind the actions, as Simpson describes it:

Because Rob kept saying, I want Don Siegelman not to run. They were talking over each other in that particular — I don’t want to face — we don’t want to face Don in running again in the future.

Rove conducted those actions to make sure that Don Siegelman would not run for Governor of Alabama.

Again, that would not necessarily be a problem–dirty politics, sure, but if Siegelman really had done what they alleged he had, then it’s fair for a politician to make sure that a competing politician’s dirty laundry gets aired.

Then there’s the other problem. On Wednesday, the White House Counsel wrote a letter to Congress claiming those activities were within Rove’s official duties as Senior Advisor to the President.

We have been further advised that because Mr. Rove was an immediate presidential adviser and because the Committee seeks to question him regarding matters that arose during his tenure and relate to his official duties in that capacity, Mr. Rove is not required to appear in response to the Committee’s subpoena. Accordingly, the President has directed him not to do so.

According to Fred Fielding, Karl Rove’s "official duties" as Senior Advisor to the President included channeling political opposition research on a political figure from Republican operatives to the Department of Justice so as to make sure that political figure would not run for office again. In addition, Fielding is claiming that Bush (or someone else with the authority to decide what Rove’s "official duties" were) decided the appropriate person to tell DOJ officials how to allocate resources was the head of the Office of Political Affairs. Further, Fielding is suggesting that it was in Rove’s "official duties" to make such resource allocation decisions with the goal of making sure particular political figures did not run for office again.

Fred Fielding has just claimed that Bush intended his Senior Advisor to dedicate his government-salaried time and direct others to direct government resources to make sure particular political figures did not run for office. Further, Fielding just claimed that Bush intended his Senior Advisor to serve as a channel for opposition research from political operatives to DOJ.

All that stuff might well have been perfectly legal, until Fred Fielding claimed that Rove was doing them in the course of his "official duties." Once Fielding claimed they were part of Rove’s "official duties," though, they became crystal clear violations of the Hatch Act, which prohibits the use of government resources for political ends. Fred Fielding just proved the Hatch Act argument we’ve been trying to make for over a year–all with that tidy little assertion that Rove’s actions in the Siegelman affair were part of his "official duties."

Now, as we reluctantly concluded yesterday when we were discussing this, these are probably just civil Hatch Act violations, not criminal ones. And since the penalty for a civil Hatch Act violation is termination, there’s no way we can hold Rove accountable on these terms (though it still seems worthwhile to make the case).

Not so some other Rove actions that would have been the subject of yesterday’s hearing, though. As I pointed out during the negotiations leading to this hearing, HJC had put Patrick Fitzgerald’s QFRs in their "politicized prosecutions" file–most likely because Fitzgerald alluded to information that latter came out in trial: the Chicago machine claims it was working with Rove to get Fitzgerald fired to prevent the Rezko/Kjellander prosecution.

I also can’t help but wonder whether Karl wants to limit testimony to Siegelman because of something he noticed on HJC’s website. HJC has put PatFitz’s QFRs right there alongside all the material on politicized prosecutions. The only thing PatFitz mentioned regarding politicized prosecutions had to do with the revelations that have since come out in the Rezko trial–revelations that put at least 3 people, some of them solidly corrupt Republicans like Turdblossom, on the record with hearsay evidence about Rove working to fire PatFitz. And since Rove has already sent his BFF Michael Isikoff out to figure out what evidence there is against him, it sure seems like Rove doesn’t want to testify about the conversations he had with Bob Kjellander about firing Patrick Fitzgerald.

One of the allegations that Rove would have been asked about, had Fred Fielding not given him a way out of testifying, is that he told Bob Kjellander that he would get Patrick Fitzgerald fired so as to scuttle the investigation into Kjellander himself. Now, Rove claims that he did no such thing.

But Robert Luskin, Rove’s attorney, today issued an unequivocal statement about all of this to the Tribune on behalf of Rove, former deputy chief of staff to President Bush, architect of Bush’s presidential campaigns and a private consultant in Washington now.

"Karl has known Kjellander for many years,” Luskin said, "but does not recall him or anyone else arguing for Fitzgerald’s removal. And he (Rove) is very certain that he didn’t take any steps to do that, or have any conversations with anyone in the White House — or in the Justice Department — about doing anything like that.”

Rather, Rove claims "he does not recall" having conversations with Kjellander about firing a prosecutor to affect the direction of an active criminal investigation. As we know with Karl and his faulty memory (ha!), "don’t recall" usually remains operative only until the evidence to the contrary appears.

In other words–regardless of whether we ever find evidence from within DOJ that Rove worked to get Fitzgerald fired (one might assume that Rove protege Kyle Sampson’s admission that he himself proposed firing Fitzgerald in early 2005 to be evidence supporting the case), at the very least Rove would have to testify about why three people, including some machine Republicans, testified that Kjellander had told people Rove was working to have Fitzgerald fired.

In other words, one of the alleged activities that–in a bid to help Rove avoid testifying yesterday–Fred Fielding just asserted was part of Karl Rove’s "official duties" while he was at the White House was discussing with Republican targets of corruption investigations the possibility of firing the prosecutor leading that investigation to have the investigation stopped.

Fred Fielding just asserted–presumably with the approval of Bush or someone else with the authority to declare what Rove’s "official duties" were–that it was Karl Rove’s job when he was in the White House to obstruct criminal investigations.

Now, we’ve known that this Administration has been in the business of obstructing investigations for some time. But up until Wednesday, no one ever claimed that the Administration believed such obstruction fell within its official duties. Glad to see Fred Fielding clear that up.

It would take some doing to go from the assertion that the White House Counsel believes it was among the "official duties" of the Senior Advisor to the President to obstruct criminal investigations to actually prosecuting not just Rove, but with this assertion, whoever it is that believes obstruction could be among a Presidential aides "official duties" as well. But if we get a new DOJ or if Congressional Democrats somehow manage to enforce their prerogatives, then Fred Fielding’s assertion on Wednesday that everything Rove would have testified about yesterday fell within his "official duties" may some day cause the White House a whole slew of additional trouble. Before, it was just Turdblossom doing what he does, on his own. But as of Wednesday, Rove’s actions just got official sanction from the White House.

As all know by now, July 9, 2008 was a day that will live in infamy. It seems stark to use that historic phrase, but to a lot of us, it really feels that way. The video attached to this post has been so attached to several now, and is of Professor Jonathan Turley on Countdown with Rachel Maddow explaining the gut shot to the Fourth Amendment the FISA Amendment Act constitutes. Turley is exactly right, and as most here know, that is precisely what I have been saying is the real danger of this act for a long, long time.

The foregoing you all know. What many have been asking, and rightfully so, is where do we go from here. You have all dedicated so much passion, time, and effort to the cause of fighting this damnable act of Congress. Cold turkey leaves a void. Well, the next phase is just beginning. There is the Strange Bedfellows fund that can always use your love; and as Jane and Howie have advised, there has been some positive love given to some of the Democrats that actually stood tall for us. And on August 8, there will be a MoneyBombing.

But, by far, the biggest news you need to know about is the activity today by the ACLU. The ACLU has made two filings in response to the passage and signing of the FISA Amendments Act (FAA). The first is a new complaint(attn: large pdf) filed in the Southern District of New York (SDNY). The action is captioned Amnesty International USA et al. v. John M. McConnell et al.; there are several plaintiffs you will recognize, and DNI Mike McConnell, NSA Director Keith Alexander and Mukasey as defendants. The action is for declaratory judgment/injunctive relief which, I will be honest, is not the favorite form of action that Federal courts consider. This is similar to the tact taken in ACLU v. NSA, the 6th Circuit case that Judge Anna Taylor Diggs bounced just to give you an idea of what i mean. In fairness, the ACLU is already saying that the new case is distinguishable because the existence of surveillance, and potential for surveillance, is much more established here, and there is some truth to that. Whether there is enough in that regard or not will only be told by time; but it will be dicey. It should be noted that the plaintiffs here are not proceeding under "aggrieved person" status pursuant to FISA in their standing claim, rather they are asserting that their livelihood, work and income, as well as privacy, are being, and will be, chilled by the pervasive effects of the FAA provisions.

The second filing by the ACLU today was made to the FISA Court and is encaptioned Motion For Leave To Participate In FISC Proceedings Required By The Fisa Amendments Act Of 2008. (another pdf). The caption is fairly self explanatory, the motion basically seeks leave for the ACLU to participate in proceedings in the FISC that occur pursuant to section 702(i) of the FAA by filing of briefs, require the government to file public unclassified versions of government briefs and filings, and that the court issue unclassified versions of any decisions. It will be interesting to see how the FISC rules and responds to this application. I would have been very skeptical prior to this order in an earlier application the ACLU made to the FISC seeking certain sealed court records. Colleen Kollar-Kotelly may just be peeved enough at the whole surveillance mess wrought by the Bush Administration to agree to this intervention.

So, these are the two actions proffered by the ACLU, and we owe them a world of thanks for waging the battle for all of us. I think they are designed to bring leverage both legally and in the court of public opinion. Until the plaintiffs start filing responsive pleadings to the motions to dismiss in the various consolidated cases in front of Vaughn Walker in NDCA, this is where the legal action is going to be. Take a look at these pleadings and let’s unpack them together, discuss and see if we cannot find some additional ideas for moving forward.

Alright, one extra little bonus. I have been holding this back for quite a while now because I was literally loathe to have it in the public domain and be latched onto by people like Obama and the other folks selling out the Constitution and 4th Amendment, as well as those that would support them and rationalize their egregious sellout. Specifically, we have worked single mindedly under the assumption that, while many parts of the FAA might could be reversed or minimized through subsequent legislation with a new Congress, the retroactive immunity portion was irrevocable and final. That may, and I emphasize this is a tentative and weak may, not necessarily be the case.

It is feasible that, providing the repealing legislation was enacted prior to the final determination of the appeals that will be made from the dismissals of the 40 some odd cases in the consolidated litigation in NDCA currently in Vaughn Walker’s court, the cases could be returned to the posture they were in prior to the immunity grant. And the appeals, assuming they go all the way through the Supreme Court, which is a given, could not possibly be done before next spring. Given the weak Democratic leadership, I think this quite unlikely, but it is a possibility to consider. So please, keep up the pressure on your Congresspeople, and let them know your fury at what has transpired and that you expect them to correct it after the election and the new term starts. And it is not just me that thinks this, it is the belief of the litigators at the EFF I have spoken to as well. Back to the salt mines; it ain’t over till it’s over!