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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The Smearmongers Who Took Down Chiara and Hagen Got Promoted to Main Justice

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

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

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

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

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

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

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

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Monica Discriminated against Margaret Chiara’s Purported Lover, Too

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

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

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

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

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

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

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

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Bush’s Idea of Worthwhile Candidates to Be Immigration Judges

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

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

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

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

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

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

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