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“Several Work and Storage Areas:” Why DOJ Likely Doesn’t Trust Biden’s Personal Attorneys

Charlie Savage has a story that — while he doesn’t say it — likely explains why DOJ doesn’t entirely trust Biden’s attorneys on the classified documents and so appointed a Special Counsel.

The currently operative story, as told by Savage, is the following:

  • Biden’s lawyers found the Penn Biden documents and interviewed the people who packed the documents
  • Based on those interviews, they told DOJ other documents would only be at Penn Biden
  • Without telling DOJ (though after they learned that DOJ had started to investigate), “and not because of any new information,” they decided to check that premise by looking at the boxes in Biden’s garage
  • On December 20, they told DOJ about the documents marked classified in the garage
  • They then decided to search other office areas, this time telling DOJ they were doing so
  • When, on January 11, they found a page with classification marks inside one of those office areas, they stopped their searches; FBI would find 5 more pages when they came to secure that single page

But look at this timeline with other dates added:

  • Biden’s lawyers found the Penn Biden documents and interviewed the people who packed the documents
  • November 4: NARA told DOJ about the classified documents
  • November 9: FBI started its assessment
  • November 14: Garland appointed John Lausch
  • Based on Biden’s lawyers’ interviews of those who packed Biden’s boxes, they told DOJ other documents would only be at Penn Biden
  • Lausch interviewed some of the people who packed the boxes
  • Without telling DOJ, “and not because of any new information,” Biden’s lawyers decided to check that premise by looking at the boxes in the garage
  • On December 20, they told DOJ about the documents marked classified in the garage
  • On January 5, Lausch recommended Garland appoint a Special Counsel
  • At some point not IDed in Savage’s story, Biden’s lawyers decided to search other office areas, this time telling DOJ they were doing so
  • On January 11, they told DOJ about another classified page, possibly inside an office, then stopped their searches
  • On January 21, FBI did a thorough search of Biden’s Wilmington home and found 6 additional documents

Biden’s lawyers probably didn’t decide to do further searches until after Lausch started interviewing people. Already, if I were DOJ, I would want to know whether Biden consulted with the people being interviewed, and based on that, realized they needed to do further searches.

But we still don’t know two other things. Savage describes the second space in Biden’s home, which heretofore had been described as the room adjacent to the garage, as “several work and storage areas inside the living area of the house.” Which is to say, we still don’t know whether the January 11 document was found inside a storage space or an office, where documents would be used rather than just stored. Or rather, John Lausch knows that, Savage’s sources know that, but we don’t.

We also don’t know if Biden found out that Garland was going to appoint a full Special Counsel and only then decided to search the interior of the home.

Something led Biden’s lawyers to take more seriously the possibility that documents weren’t just stored at Biden’s home, but used there. And while this all still could be lawyers stepping on their own toes as they try to be helpful, even just based on what we know, from DOJ’s perspective, that toe-stepping would be indistinguishable from Biden’s lawyers responding to learning things they should have been told from the start, which is different from — but not that different from — Trump moving boxes to prevent Evan Corcoran from finding classified documents.

One more detail that is actually fairly damning. Savage describes that the documents at Penn Biden were copies; the originals are stored at the Archives.

One set was believed to be material that might be useful to Mr. Biden for his post-vice-presidential career in public life or teaching, like his speeches and unclassified policy memos about topics he was interested in. Those materials were initially shipped to two transition offices and then on to his office at the Penn Biden Center when it opened in 2018. (The National Archives and Records Administration would keep original copies of the official records.)

If Biden’s office sent originals of the classified documents found at Penn Biden to NARA, it makes their inclusion in documents sent to the policy office far less attributable to a mistake.

Biden’s lawyers have been feeding the press a story about how cooperative they’ve been. But so did Trump’s lawyers. Trump’s story was far more obviously bullshit — in part for the way they spun a claim that by adding a lock to Trump’s storage room, they had made it secure.

Though this line about the Biden search — offered up as proof of extreme cooperation — gets close to lock-on-door levels of spinning.

[T]he Biden legal team invited the F.B.I. to also search every room in the residence — including bathrooms, bedrooms and the utility room, the people said.

There are still key parts of Biden’s story that aren’t being explained, most importantly whether the documents discovered this month inside Biden’s house were discovered in storage or in an actively-used office. If DOJ knows that the difference between the two would be critical information for the public to know, then this story would only further degrade confidence in Biden’s lawyer on the part of DOJ.

This is not about the reliability of lawyers like Bauer. Rather, it’s about whether Biden’s lawyers got information at the start they needed. But if they did not, it means that DOJ can’t just trust, but must verify, everything Biden’s lawyers tell them.

What We Can’t Rule Out with Biden’s Classified Documents

The FBI did a consensual, almost 13-hour search of President Biden’s Wilmington home yesterday. The FBI found and seized six more classified documents “with surrounding materials” (some of which date from Biden’s time in the Senate) as well as hand-written notes from his time as Vice President.

Note that after Biden’s lawyer’s found a document in the room adjoining his garage, they stopped searching. DOJ came to fetch that document and took 5 more pages, all of which may have been in the same place. It’s possible (though in no way certain) that these additional documents were simply stored in the same place, the obvious outcome of DOJ’s effort to return and do a more thorough search.

The voluntary nature with which Biden has given information back to DOJ still starkly distinguishes him from Trump. And that comparison may give DOJ leverage to try to obtain the records it believes Trump still has.

But at this point, we can’t rule out several of the most damning details that are known to be present with Trump to also be present with Biden.

There are, as far as we know, at least three things that make Trump’s retention of classified records particularly damning:

  • The existence of a leatherbound trophy box in his office storing the most classified documents (alongside Time Magazine covers, which is one piece of evidence these are trophies)
  • The existence of 46 empty classified folders, which may be one reason DOJ suspects not all of Trump’s documents are accounted for yet
  • Two compiled documents integrating classified records with other materials, one dating from Trump’s presidency (the grant of clemency for Roger Stone) and one that includes at least 3 messages that post-date his presidency

I’ll review that last document, because it hasn’t gotten nearly enough attention yet.

One of the last filings released in Trump’s Special Master process, summarizing the disputes, described a “compilation” of two classified records (one Confidential, one Secret), and what appears to be four other documents: messages from a book author, a religious leader, and a pollster, as well as what appears to be a fourth document involving a lawyer. The messages all post-date January 20, 2021.

One potentially privileged document that had been scanned was removed from the database (SM_MAL_00001185 to SM_MAL_00001195). That document – excluding the one potentially privileged page (SM_MAL_00001190) – is discussed in the next section about the Filter Materials Log. The potentially privileged page is the subject of a separate letter from the Filter Team to Your Honor, which is sent today.

[snip]

This document is a compilation that includes three documents that post-date Plaintiff’s term in office and two classified cover sheets, one SECRET and the other CONFIDENTIAL. Because Plaintiff can only have received the documents bearing classification markings in his capacity as President, the entire mixed document is a Presidential record.

Besides the classified cover sheets, which were inserted by the FBI in lieu of the actual documents, none of the remaining communications in the document are confidential presidential communications that might be subject to a claim of executive privilege. Three communications are from a book author, a religious leader, and a pollster. The first two cannot be characterized as presidential advisers and all three are either dated or by content occurred after Plaintiff’s administration ended. [my emphasis]

In other words, this document, which was stored in a desk drawer, suggests that Trump used classified documents at least once after he left the White House.

While there are press reports that Trump otherwise accessed documents after DOJ started looking for them — in part, by curating the ones he was willing to send back in January 2022 and hiding some from Evan Corcoran so they wouldn’t be turned over in the June 2022 search — this compilation seems to show that Trump not only knew the classified records were in his home, but he used them, at least once, after he left the White House.

Given the discoveries in yesterday’s Biden search, we can’t rule that out in his case, either. Bauer’s statement described the FBI taking, “documents with classified markings and surrounding material,” which doesn’t rule out a compiled document — though it also could describe documents and the other contents of the folder or box they were found in, which would be consistent with how DOJ approached the search of Trump’s home.

And the seizure of hand-written notes from the time Biden was Vice President means we can’t rule out the equivalent of the letters from Kim Jung Un that Trump took, memorabilia that, because it pertains to foreign policy, should also be treated as classified (and would be covered by the Presidential Records Act).

Both both-sides journalists and hopeful lefties are jumping to conclusions about what the Biden seizures mean. The truth is, we simply don’t know yet. We know the most damning details about documents Trump had largely because of his legal challenges, not because they would otherwise be available from this kind of report on the investigation.

Here’s a comparison of what we know of the two cases:

The obstruction is still what distinguishes Trump from Biden, because DOJ would most likely charge a Constitutional officer only with 18 USC 793(e), refusing to given classified documents back. Biden has made multiple efforts to give documents back: Trump has made multiple efforts to refuse to give documents back.

But as for the other damning details we know exist with Trump? We can’t rule them out with Biden.

Update: I’ve changed the number of Biden docs, to allow for some uncertainty about these are being referenced. We don’t have the FBI inventory, like we do for Trump.

Executive Nominations, Judicial Emergencies and Change in WH Counsel’s Office

Abby Philip and Josh Gerstein at Politico have an excellent piece up on the state of Executive Branch nominations in the Obama Administration.

It’s crunch time for the White House to get key executive branch jobs filled before the end of President Barack Obama’s first term.

Dozens of top posts in both the executive branch and the judiciary remain vacant, while some of those who started near the beginning of the administration are bailing out.

Nominees who aren’t confirmed by the Senate by the end of this year likely will become tangled in election-year politics, given Republican hopes of taking the White House, the Senate or both. If Obama wants a good shot at getting his nominees through this year, Hill veterans say, names need to reach the Senate by the summer recess.

Adding to the heightened urgency for action: Many of the unfilled posts deal with Obama’s major policy priorities, including financial regulatory reform, immigration and health care. Not coincidentally, those positions also are some of the most likely to become ensnared in partisan disputes.

Go read their full article, it is a good across the board discussion on nominees and where we stand in various areas of interest.

There are two areas of the Politico piece I want to draw attention to. The first is the critical importance of work and support by the White House for their nominees and the nomination process.

But one former official said much of the blame for the slow pace lies with the White House.

“A lot of fingers have been pointed at the Senate,” said Chase Untermeyer, who served as director of presidential personnel for President George H.W. Bush. “I always say that two-thirds of the job is on the executive side.”

Exactly. For one thing, it is hard for an administration to get a confirmation if it does not make nominations. Take federal judges for instance, for most of the past two years there have been around a hundred vacancies on the Circuit and District courts; Mr. Obama has rarely had nominees for more than half of them. This is simply federal administrative incompetence, and it takes a heavy toll Read more

OLC Memo as Time Machine

I’m going to have more to say about the Libya memo the Administration released yesterday. But I just wanted to point out something about the structure of it.

Here’s the first paragraph:

This memorandum memorializes advice this Office provided to you, prior to the commencement of recent United States military operations in Libya, regarding the President’s legal authority to conduct such operations. For the reasons explained below, we concluded that the President had the constitutional authority to direct the use of force in Libya because he could reasonably determine that such use of force was in the national interest. We also advised that prior congressional approval was not constitutionally required to use military force in the limited operations under consideration. [my emphasis]

This is not the advice authorizing the Libyan engagement. Rather, it is a document written the day after–the memo notes–the Administration turned over control to NATO, claiming to memorialize the advice given before the Libyan engagement (therefore, presumably, before March 19).

Is this all the advice OLC gave the President? Did OLC authorize further activities? Did Obama’s description of why bombing Libya was in the national interest before March 19 match what appears in this memo, written after the fact?

This fundamental structural reality is all the more striking given the role of Section I of the memo: it provides a narrative of the Libyan engagement starting in mid-February and leading right up to the March 31 turnover of control to NATO. In other words, a key function of this memo is to provide the Administration’s own mini-history of the Libyan engagement, written the day after an artificial “end date” for the engagement, which it uses to lay out the national interest of bombing Libya and the limits to our engagement in it that the memo says justify the engagement. Two key elements in this history–Obama’s address to Congress on March 21 and his address to the nation on March 28–took place after the real advice OLC offered Obama to authorize this engagement.

But the memo claims to have offered its advice before the start of the bombing. It is basically using Presidential statements made up to 9 days after the advice it gave to “memorialize” the advice it gave 9 days earlier. The memo uses limits Obama described after the advice was actually given to claim the advice itself had limits.

I’m envisioning a discussion like this:

Bob Bauer: Caroline, can you give us a verbal okay for this engagement?

Caroline Krass: Do you want a written memo?

Bauer: Not yet. Let’s wait until it’s all done so we can tailor the legal authorization of it to what we really end up doing. It’ll make it easier for us to thread the needle between authorizing what we do while still claiming to believe Executive Power is limited.

Krass: Okay, Bob.

Pretty remarkable, isn’t it, the way a memo written after the fact authorizes precisely the engagement that Obama ultimately used, all the while highlighting limits to the use of unilateral presidential power?

Lindsey Graham Predicts Successful Terrorist Attack Followed by Harsh Resolution of Gitmo

Josh Gerstein provides Lindsey Graham a soap box to complain that his efforts to craft a grand compromise with the Administration on Gitmo stalled in May.

“I thought we were close to getting a deal,” Graham told POLITICO last week. “I had some meetings where I walked out of the White House and said, ‘This is great.’ These were better meetings than I ever had with the Bush administration.”

But sometime around May, according to Graham, the line of communication with the White House shut down.

“It went completely dead,” Graham said. “Like it got hit by a Predator drone.”

The article as a whole suggests that Administration was fairly close to a deal, though even that deal was threatened by Graham’s inability to bring a number of Republicans along on the compromise as a whole, rather than a series of solutions. Efforts to craft a deal intensified following the Faisal Shahzad attempted Times Square bombing. Gerstein suggests that Eric Holder’s big appearance on the Sunday shows on May 9–to entertain thoughts of a Miranda compromise–was a sign of how close the Administration and Graham were to a deal.

“We had a great discussion on Miranda warning reform,” Graham recalled about an evening session with Bauer and Sen. Dick Durbin (D-Ill.). “I spent three hours down at the White House — it was probably the best meeting I’ve ever been in — where we game-planned this. … I left the meeting thinking we’re going to get a statute.”

Indeed, on May 9, Attorney General Eric Holder publicly embraced the idea on NBC’s “Meet the Press.” Calling Miranda-related legislation a “new priority,” he declared: “This is a proposal that we’re going to be making.”

And then the efforts to craft a compromise died (and, as a result, Miranda remains intact). Gerstein suggests Graham’s flip-flopping on other key legislation made it clear that Graham was not an honest broker.

Graham also may have lost credibility with the administration after he lashed out at the White House in disputes over the health care bill, climate legislation and immigration reform.

The timing certainly makes sense. During the last week of April, Graham threatened to kill the climate change bill he was crafting with the Administration as a way of keeping immigration reform from coming to a vote. By early June, he was promising to vote against any energy or climate bill. So the collapse of the grand “bargain” on Gitmo may have as much to do with Graham’s apparently successful effort to prevent Democrats from focusing on the legislative goals of a key constituency. And that may be why the electoral calendar is cited for killing the compromise as much as anything else: Graham’s yoking of immigration and climate change to Gitmo.

But I also wonder whether the Administration got a sense of just how bad Graham’s “compromise” really was. Negotiations on the grand compromise seem to have been at their height just as DOD was kicking four reporters out of Gitmo for making clear what was already in the public domain: that the interrogator who threatened a child with rape and possibly death in US prisons is the same guy who was convicted in relation to the death of another detainee. Since then (in July), Omar Khadr fired the lawyers who were crafting a plea deal, thus closing off one of the most palatable ways for the Administration to avoid making Khadr the poster child for America’s continued abuse of power at Gitmo.

I also suspect the nomination of Elena Kagan on May 10 may have played a part in the timing, not least because no Republicans would be willing to make a deal against the background of a SCOTUS nomination.

As it is, Graham seems to be using Gerstein’s article to issue two threats: first, that he will push for his own legislation in the next Congress, presumably with the votes of a few teabaggers to help him. And, his implicit threat that there will be another terrorist attack after which any decisions on Gitmo will be far worse than the policies being discussed now.

“There’s going to be an attack. That’s going to be the impetus. That’s going to be what it takes to get Congress and the administration talking; we have to get hit again,” the senator said, suggesting that passing a bill before that happens might be more reasonable than what would come afterward.

“If there is a successful attack, there is going to be a real violent reaction in the Congress, where we will react more emotionally than thoughtfully,” Graham said.

Let it be remembered–for the day when we’ve completely capitulated to those who want to use the threat of terrorism to establish a police state–that Lindsey Graham planned for it to happen.

The Things Bob Bauer Was Doing before Taking over Ethics

The White House Ethics Czar, Norman Eisen, has gotten himself nominated to serve as Ambassador in one of the greatest places on earth, Prague, Czech Republic. To replace the function of Ethics Czar, the White House has announced that White House Counsel Bob Bauer will take over, and Steven Croley (who worked on the campaign) will lead a team of six to oversee ethics.

Ethics wonks are mixed about whether this arrangement will meet the high standards Obama set when he came into the White House. POGO’s Danielle Brian takes Bauer’s appointment as a good sign that ethics will continue to be a priority. OMB Watch’s Gary Bass is happy the White House worked so quickly to implement a plan to replace Eisen. But Sunlight Foundation’s Ellen Miller views the appointment of Bauer–who has a history of supporting bad ethics habits–as a setback.

This concern is magnified manifold when Eisen’s key successor – Bauer — can hardly be described as having the DNA of a ‘reformer.’  This is the man who invented the rationale for the acceptance of “soft money’’ – unregulated (chiefly corporate) funds that flooded elections to the tune of $1.5 billion between 1992 and 2002, and the man who sided with arch conservatives in their defense of lack of transparency.

[Update: CREW has concerns as well.]

I’ll leave it to the ethics wonks to decide whether Bauer can do the job–on ethics–well or not. And FWIW, the one time I’ve seen Bauer’s work close up (during an election-related suit here in MI in 2008), I thought he was the kind of fighter Dems need more of.

But I am worried about what this says about the Administration’s focus on two other critically important functions. You see, when Bauer took over for Greg Craig, he was hailed as the kind of guy who could solve two problems Craig had failed to: judicial confirmations and closing Gitmo.

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Elena Kagan and Lindsey Graham on the Global Battlefield, the Sequel

This exchange is one of the most telling from the entire Kagan hearing today (note; we’ve edited this exchange for length; here’s the full exchange; also, while you’re watching, keep an eye on the body language of the bearded man sitting behind Kagan, White House Counsel Bob Bauer).

It’s striking, first of all, because Lindsey Graham plays the role of the cross-examiner and his delivery largely overwhelms Kagan. As they go on, Kagan manages to reclaim her ground–on the issue of whether or not the entire world is the battlefield of the war on terror. But even there, the difference in her various answers suggests troubling things about her stance on habeas.

After prompting Kagan to deliver the standard justification for detaining enemy combatants during war and rewarding her with a condescending compliment, Lindsey starts by getting Kagan to agree that the war on terror will never end.

Lindsey: [Speaking of her rote recitation of the basis for indefinite detention] That’s a good summary. The problem with this war is that there will never be a definable end to hostilities, will there?

Kagan: [Nodding] That is exactly the problem, Senator.

What a breath-taking exchange! Rather than challenge Lindsey on his slippery definition (referring to “hostilities” rather than war), rather than challenging him on the premise, Kagan simply nods in agreement. One minority party Senator and the Solicitor General sat in a hearing today and decided between them the state of hostilities under which the Executive Branch has assumed war-like powers to fight terrorism will never end.

The police state will continue forever.

Perhaps sensing the danger, Kagan notes that the Hamdi decision envisions such an indefinite war might require a different approach to detention, perhaps a review to ensure a detainee’s continuing dangerousness. This thrusts Kagan not into the realm of legal review, but the policy disputes between the White House and Lindsey (again, the watchful eye of Bob Bauer here is worth noting).

Our excerpt jumps here (after Lindsey makes his pitch for just such a program).

Lindsey comes back by getting Kagan to personally endorse the stance she embraced in her Solicitor General role, arguing against habeas rights for Bagram detainees.

Lindsey: You argued against expanding habeas rights to Bagram detainees held in Afghanistan, is that correct?

Kagan: I did, Senator Graham.

Lindsey: As a matter of fact, you won.

Kagan: [pushing back with apparent discomfort] Uh, in the DC Circuit–

Lindsey: [interrupting] And you probably won’t be able to hear that case if it comes to the Supreme Court, will you?

Kagan: Well, that’s correct, and the reason–

Lindsey: [interrupting again] Well, that’s good cause then we can talk openly about it.

Kagan: [laughing] Uh, if I could just say, the Solicitor General only signs her name to briefs in the Supreme Court, authorizes appeal, but does not sign Appellate briefs, but I determined that I should be the Counsel of Record on that brief because I felt that the United States’ interests were so strong in that case based on what the Department of Defense told our office.

Lindsey: Right. I want every conservative legal scholar and commentator to know that you did an excellent job in my view of representing the United States in that case.

Lindsey then gets her to reiterate that she signed that brief because of the seriousness of the issues for the government. He interrupts again:

Lindsey: Well, let me read a quote: “The Federal Courts should not become the vehicle by which the Executive is forced to choose between two intolerable options: submitting to intrusive and harmful discovery, or releasing a dangerous detainee.” Do you stand by that statement?

Kagan: Senator Graham, can I ask whether that statement comes from that brief?

Lindsey: Yes it does.

Kagan: No, I uh, that statement is my best understanding of the very significant interests of the United States government in that case, which we tried forcefully to present to the Court and as you said before, the DC Circuit–a very mixed panel of the DC Circuit–upheld our argument.

Lindsey: Right. You also said “The Courts of the United States have never entertained habeas lawsuits filed by enemy forces detained in war zones. If Courts are ever to take that radical step, they should do so only with explicit blessing by statute.” You stand by that?

Kagan: Anything that is in that brief I stand by as the appropriate position of the United States government.

Lindsey: [while she is speaking] Fair enough.

Throughout this exchange, Lindsey basically had Kagan cornered, not wanting to disavow a document she had signed in unusual circumstances, but seemingly recognizing the risk of adopting these harsh statements as her own. Read more

Negotiation 101: How to Get Corporations to Do What You Want

I just got back from driving across the rust belt – Syracuse, Buffalo, Cleveland, Toledo, MI – and am catching up on all the interesting conversations you’ve been having this week while I was celebrating my mom’s birthday (thanks, once again, to bmaz for watching the liquor cabinet while I was gone). So for the moment I want to make one quick comment.

The WSJ has a story describing how BP heroically pushed back against two of the Administration’s most onerous demands: that it pay for the costs of the moratorium on new drilling, and it pay to restore the Gulf to its natural state, rather than the state it was in when the Deepwater Horizon disaster struck.

BP PLC, despite being put under pressure by the U.S. government to pay for the oil-spill aftermath, has succeeded in pushing back on two White House proposals it considered unreasonable, even as it made big concessions, said officials familiar with the matter. BP last week agreed to hand over $20 billion – to cover spill victims such as fishermen and hotel workers who lost wages, and to pay for the cleanup costs – a move some politicians dubbed a “shake down” by the White House. Others have portrayed it as a capitulation by an oil giant responsible for one of the worst environmental disasters in history. A more accurate picture falls somewhere between.

The fund is a big financial hit to BP. But behind the scenes, according to people on both sides of the negotiations, the company achieved victories that appear to have softened the blow.

BP successfully argued it shouldn’t be liable for most of the broader economic distress caused by the president’s six-month moratorium on deep-water drilling in the Gulf of Mexico. And it fended off demands to pay for restoration of the Gulf coast beyond its prespill conditions.

Now, I know WSJ’s job is to make corporations look good, so I’m unsurprised by this spin. And I’m skeptical the $20 billion will get in the hands of those who need it in a timely fashion.

But it seems to me that the real story is that – for the first time I can think of – the Obama Administration has actually taken a tough approach to negotiation. Normally, of course, Obama starts by ceding on key issues (such as drug reimportation, oil drilling, and real financial reform) and from that incredibly weakened position, further damaging his policy position. Perhaps this time is different because the Administration is under a much greater public opinion threat. Perhaps this time is different because BP is a corporation (though so are the drug companies) not the opposing political party.

But this time is different.

I actually agree with the WSJ that Obama was unlikely to get BP to pay for the moratorium on drilling. But that may have not been the point. It established the window of possibility far beyond what it had been, and made the $20 billion escrow account look reasonable by comparison. And voila! BP at least said they agreed to cough up $20 billion.

It’s called negotiation!

Whoever came up with this novel idea really ought to get a bigger policy portfolio.

Bob Bauer and Scooter Libby Justice

photo: Bob Bauer (PolicitalActivityLaw via Flickr)

photo: Bob Bauer (PolicitalActivityLaw via Flickr)

Glenn Greenwald has a post hitting on an op-ed Bob Bauer — Greg Craig’s replacement as White House Counsel — wrote supporting a pardon for Scooter Libby. (h/t BayStateLibrul) Glenn focuses on these passages…

Bush’s opposition has braced for a pardon and its rage at the prospect is building.  To Bush’s antagonists on left, a pardon would be only another act in the conspiracy — a further cover-up, a way of getting away with it. But this is the entirely wrong way of seeing things.  A pardon is just what Bush’s opponents should want. . . .Nothing in the nature of the pardon renders it inappropriate to these purposes. The issuance of a presidential pardon, not reserved for miscarriages of justice, has historically also served political functions — to redirect policy, to send a message, to associate the president with a cause or position. . . .

Libby is said to be unpardonable because the act of lying, a subversion of the legal process, cannot go unpunished. Yet this is mere glibness. . .

Now, as it happens, I didn’t write about this when it first came out. And to be honest, I’ve got mixed feelings about it. After all, Bauer did something that few people in DC were doing at the time–pointing to Bush’s own involvement in the leak of Plame’s identity.

A presidential pardon is finally an intervention by the President, his emergence from behind the thick curtain he has dropped between him and these momentous events involving his government, his policy, his Vice President. By pardoning Libby, he acknowledges that Libby is not really the one to confront the administration’s accusers. Now the president, the true party in interest, would confront them, which is what his opponents have demanded all along.

[snip]

But if the President pardons Libby, and by this act makes the case his own, he will have picked up a portion of the cost. Libby will fall back, restored to obscurity. Bush will step forward and take the lead role. He will have to explain himself; he will have to answer questions.

Even though I had already pointed to evidence showing Bush was involved–and may have even ordered OVP’s campaign against Joe Wilson in June 2003, when Bauer wrote this, almost no one would utter the possibility that Bush was somehow in the loop on the Plame outing. I think I remember being mildly grateful that someone would even point out that Bush ultimately bore responsibility for the Plame outing.

That said, I think Bauer was, on two counts, hopelessly naive. Read more

Michigan Dems and the Obama Campaign Sue for Foreclosure-Related Vote-Caging

The Michigan Democratic Party and the Obama campaign just finished a conference call announcing that they will sue the Republican Party for its plans to conduct vote-caging operations this fall, based partly on using lists of people in foreclosure to challenge peoples’ right to vote (here is Time’s recording of the call). They are seeking an injunction to prevent the GOP from engaging in these activities this year.

The move arose out of a Michigan Messenger story last week which quoted a county party chair, on the record, as saying he planned to use foreclosure lists as a basis for vote-caging.

The chairman of the Republican Party in Macomb County, Michigan, a key swing county in a key swing state, is planning to use a list of foreclosed homes to block people from voting in the upcoming election as part of the state GOP’s effort to challenge some voters on Election Day.

“We will have a list of foreclosed homes and will make sure people aren’t voting from those addresses,” party chairman James Carabelli told Michigan Messenger in a telephone interview earlier this week. He said the local party wanted to make sure that proper electoral procedures were followed.

State election rules allow parties to assign “election challengers” to polls to monitor the election. In addition to observing the poll workers, these volunteers can challenge the eligibility of any voter provided they “have a good reason to believe” that the person is not eligible to vote. One allowable reason is that the person is not a “true resident of the city or township.”

The Michigan Republicans’ planned use of foreclosure lists is apparently an attempt to challenge ineligible voters as not being “true residents.”

When asked whether they had more evidence that the GOP planned to engage in this kind of voter-caging this year, MDP Chair Mark Brewer and Obama Campaign General Counsel Bob Bauer referred to the changing story among different members of the MI GOP–that stop short of real denials, of similar statements coming from an OH county chair, and of a former MI Republican Counsel, Eric Doster, admitting the party did plan on doing vote caging, though perhaps using returned mail.

The campaign explained the goals of their suit this way:

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