Delaying the Return of the Rule of Law

Anonymous Liberal asks why AG Mukasey is refusing to turn over the new "family jewels"–the OLC opinions authorizing torture and warrantless wiretapping. Now, as a lawyer, AL is challenging the legal basis to withhold those opinions. But I’m interested in the tactical reason Mukasey is withholding those opinions.

Delaying the OLC Opinions and Holder’s Nomination

I would suggest we think about the timing–not only of this refusal, but also recent GOP attempts to stall Eric Holder’s confirmation process.

As Pat Leahy laid out in a statement, the Republican response to early discussions of Holder’s nomination were quite supportive.

In my statement to the Senate on November 20, I commended Senators Hatch, Sessions, Coburn, and Grassley for their nonpartisanship when they praised his selection.  Senator Hatch spoke of his support for Mr. Holder, his experience and reputation. Senator Sessions, a former prosecutor, U.S. Attorney, and State Attorney General who is well aware of the problems at the Justice Department, said he was disposed to support him.  Senator Coburn called it “a good choice.”  In addition, Senator Grassley has acknowledged Mr. Holder’s impeccable credentials while reserving judgment.

But in the last week, Specter and the Republicans have been squawking to postpone Holder’s nomination hearings beyond the January 7 and 8 timeframe when Leahy has them scheduled. They promise, they say in mock good faith, that Holder will be considered and probably approved within a week or so of when Obama takes office on January 20. But with their actions, they’re still calling for what amounts to at least a one-week delay in Holder’s swearing in.

So Republicans are now attempting to orchestrate at least a one week delay in the time when Holder becomes Attorney General, to January 27 or thereabouts.

Mukasey’s refusal to turn over the OLC opinions looks like it may cause the same kind of delay. The first report of the delay on OLC opinions–based on a December 3 Mukasey press conference–pointed specifically to the inauguration as the day when they might be turned over.

But the Justice Department’s new leaders may not gain access to the Bush administration’s most sensitive legal opinions until after the January inauguration, Mukasey told reporters in what could be his final news conference.

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No Wonder the Siegelman Prosecutor Didn’t Want an Investigation of the Juror Emails

One of the key grounds for appeal in the Don Siegelman case is that there was evidence of juror misconduct–two jurors plotting how to get a conviction–that the prosecution had the US postal inspectors investigate even while insisting any investigation would taint the jury process.

At issue is a series of e-mails that arose in 2006 suggesting that two jurors had outside influence as they decided Siegelman’s bribery conviction. After he was found guilty, Siegelman sought a new trial over the e-mails, printed copies of which had been mailed to defense attorneys.

U.S. District Judge Mark Fuller denied the motion for a new trial, ruling that the allegations were unsubstantiated. Siegelman has cited the issue as a central point in his ongoing appeal.

Two weeks ago, the head of the Justice Department’s appellate division, Patty Merkamp Stemler, informed Siegelman’s attorneys that the department had discovered undisclosed information about the controversy as attorneys prepared for the appeal. In a July 8 letter, Stemler wrote that while Siegelman’s mistrial proceedings were pending, acting U.S. Attorney Louis Franklin asked U.S. postal inspectors to try to determine who sent the e-mails through the mail.

U.S. Marshals later informed Fuller that the inspectors had concluded the e-mails were fakes. They determined, for example, that one e-mail didn’t match up with the corresponding juror’s e-mail account.

But the information produced for prosecutors and given to the judge was never passed along to Siegelman’s attorneys for cross-examination. [my emphasis]

A letter John Conyers just sent to Michael Mukasey reveals that the prosecution team allegedly knew that one of these jurors was sending flirty messages to the prosecution team during the trial. In other words, when the prosecution team fought any investigation into improper juror conduct, they had reason to believe that there had been improper contact between jurors and the prosecution team.

Those are contacts, of course, that would remain hidden in any investigation the US postal inspectors would do.

The Whistleblower

Conyers explains that Tamarah Grimes, a member of the Siegelman prosecution team, turned over emails reflecting a conversation about juror contacts with the prosecution team.

This email chain is dated June 15, 2006–the day the Siegelman/Scrushy case was submitted to the jury for its decision. The key email in the chain was written by Ms. Patricia Watson, 

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It’s Called Justice

Not only did Michael Mukasey, in his most reasonable act as AG, refuse to act on Bush’s request that he help Ohio Republicans prevent 200,000 voters from voting.

But now, the military judge in charge of Hamdan’s Show Trial has refused the Bush Administration’s request that the jury re-sentence Hamdan so he won’t be released on Bush’s watch. 

A military judge rejected a Bush administration move to that could have kept Osama bin Laden’s former driver locked up for an additional five years.


In a two-paragraph order, [Judge Keith Allred] said he had read the filings and legal citations, as well as reviewing the sentencing hearing transcript.

"The prosecution motion to reconsider, reassemble, reinstruct and re-announce a sentence is denied," he wrote.

I guess Poppy and Dick never told you this whole all-powerful bullshit would end as soon as you became a lame duck, huh, Bush?

Conyers Notices the Similarities to US Attorney Purge, Too

John Conyers has not missed what we’ve been seeing: a replay of the US Attorney scandal. He talks about the attacks on ACORN, the improper use of prosecutorial resources to intimidate voters, the waste of investigative resources when the FBI is already failing to investigate mortgage-related fraud, and the seeming preferential use of federal investigative resources to target Democrats. But here’s my favorite bit:

Furthermore, it is deeply troubling that, just weeks after the Department’s own watchdogs documented the role that specious agitating on alleged vote fraud matters by New Mexico Republicans played in the firing of United States Attorneys in 2006, in this controversy we see the same figures cropping up again and apparently obtaining a new FBI investigation just in time for the 2008 election. Thus a lawyer named Pat Rogers–described in the local press as "an attorney who advises the state GOP" is apparently playing a key role in pressing these current claims. Mr. Rogers, however, appears repeatedly in the report on the U.S. Attorney firings prepared by the Department’s Offices of the Inspector General and Professional Responsibility, which documented his actions making flawed claims of voter fraud and brining unwarranted pressure to bear on law enforcement officials, including Mr. Iglesias, in 2006.

As I glossed the other day, 

Republicans are already under criminal investigation for this stuff. Don’t let them get away with the same kind of criminal conduct again.

Of course, as Kagro X has pointed out, Mukasey can blow off Conyers (as he has Conyers’ request for more urgency on voter protection) precisely because we didn’t get the evidence from Miers and Turdblossom to make this case legally before we got back into election fever.

So here we are, with the subpoenas still unenforced in the case that was supposed to crack the "administration’s" engineering of bogus "voter fraud" allegations against Democrats immediately preceding critical elections wide open, and now witnessing… the "administration" engineering bogus "voter fraud" allegations against Democrats immediately preceding a critical election. 

Like Alberto Gonzales, Mukasey seems to have lost all shame about allowing the GOP to play these games. 

Tom Davis Supports Waxman’s Demand for Cheney’s Interview Materials

Retiring GOP Congressman Tom Davis must have accepted that we’ll soon have a Democrat in the White House. He has joined Henry Waxman in declaring Bush’s (Mukasey’s, really) invocation of executive privilege with regards to the Cheney interview notes in the CIA Leak Case to be improper.

 On a bipartisan basis, the Committee finds that the President’s assertion of executive privilege over the report of the Vice President’s interview was legally unprecedented and an inappropriate use of executive privilege. The assertion of executive privilege prevents the Committee from having access to a complete set of records and thus results in the Committee’s inability to assess fully the actions of the Vice President.

Mind you, I don’t know what effect this report will have. As we’ve seen with the US Attorney subpoenas, the White House can stall anything until the end of the Administration (and until Bush pre-emptively pardons Cheney and Libby for outing a CIA spy). At which point–given the way the polls are headed–Obama’s new AG could turn over the Cheney interview materials. 

I’m most curious about Davis’ cooperation on this, but not Waxman’s demand that DOJ unredact the reports the Committee already has (these redactions include references to both Bush and Cheney), because I believe Davis was party to the Administration’s second firewall on the CIA Leak Case–the Cheney claim that he could (and presumably did) insta-declassify Plame’s identity all by himself.

When the Oversight Committee had a hearing on CIA Leak Case, remember, Davis went to some length to try to get Bill Leonard to state that both the President and the Vice President had authority to declassify at will. 

And, after the country’s head of Information Security, Bill Leonard, asserted at the Waxman hearing that the President has absolute authority to declassify things, Congressman Tom Davis tried to sneak such authority for the Vice President into the Congressional Record:

Davis: Mr. Leonard, let me ask. Does the President or the Vice President have the authority to declassify on the spot?

Leonard: As I mentioned earlier, Mr. Davis, the President’s authority in this area is absolute, pursuant to the Constitution, …

Davis: So they can do it on the spot. Can they declassify for limited purposes?

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60 Days

The WSJ has a profile of Nora Dannehy, the prosecutor Michael Mukasey picked to further investigate the US Attorney purge. It includes a bunch of details that might make you more confident the investigation will be thorough.

In her 17 years in the U.S. Attorney’s office in Connecticut, Nora Dannehy has sent a governor and a state treasurer to prison. Is she up for tackling such a lengthy and politically dicey investigation? Legal peers and former bosses say the long-distance runner is up to it.

“She’s stubborn as hell and very, very smart,” said William Gerace, who went up against Dannehy in the investigation of his client, Lawrence E. Alibozek, who as a deputy chief of staff for Gov. John G. Rowland was accused of taking payoffs. “She doesn’t play politics.”

Because of the litany of public corruption cases Dannehy, 47, has prosecuted, she has a reputation as a pitbull, say attorneys.

But it’s not so much the profile that ought to give you pause–it’s the detail that the investigation already has a due date: in 60 days.

Today, Dionne Searcey, the newest addition to the WSJ’s legal gang, delivers us some background on the career prosecutor, who will have to turn around her investigation in a mere 60 days: [my emphasis]

Or roughly December 1. In other words, after the election (so results of the investigation can’t further sink the Republican Party), but before the next President appoints his own Attorney General. Or, to put it differently, long before the inevitable battle over whether Harriet Miers and Karl Rove have to testify, and whether the Administration has to hand over their own secret timeline of the firings.

The USA Purge: DOJ’s IG Punts

Well over a year after the Department of Justice’s Inspector General started an investigation into the US Attorney firings, they’re set to punt tomorrow. They won’t refer Gonzales–or anyone else–for prosecution, but they will recommend that someone–someone with subpoena power–continue the investigation.

Justice Inspector General Glenn A. Fine and Office of Professional Responsibility director H. Marshall Jarrett, who wrote the report, will not absolve Justice Department officials of blame but will recommend that efforts continue to resolve unanswered questions, said the sources, who spoke on condition of anonymity because the findings have not yet been made public. 

The problem, it seems, is the same problem that prevented Congress from determining the truth behind the US Attorney firings: key participants refused to cooperate.

An intense effort to determine how the firing plan originated and whether perjury or obstruction of justice laws were violated in refusing to reveal the basis for the dismissals has been thwarted, partly because investigators lack the power to compel testimony from people outside of the Justice Department.


Investigators did not win access to lawmakers and their assistants or former White House aides despite attempts to interview them.

Yeah, those key participants: Harriet Miers, Turdblossom, Bush, Domenici and his staffers, Heather Wilson and her staffers, etcetera. What a surprise. Mukasey’s refusal to appoint a prosecutor last year–and his ongoing support for the claims of executive privilege and absolute immunity–bought the White House a year in their attempts to stall or quash this investigation.

And, as if you didn’t already guess, Mukasey seems unprepared to appoint a special counsel to investigate this–he seems poised to appoint someone internal, just as he did with the torture tape destruction investigation.

Despite calls from some of the fired U.S. attorneys, Mukasey will not name a special prosecutor from outside the department. Instead, he intends to hand over the project to a career lawyer with experience in public corruption work, the sources said. 

Tune in tomorrow where we see yet more evidence of DOJ’s changing stories about why they fired the US Attorneys.

What ELSE Mukasey Declines to Prosecute: Sexual Assault of a Subordinate

I’ve just gotten through the first Department of Interior IG report, and wanted to pull out these few discrete details as an example of what Attorney General Mukasey has declined to prosecute.

The first report describes the corrupt acts of Gregory Smith, who managed the Royalty in Kind program. In that program, companies drilling on Federal land, give the government oil or gas, which the government then contracts to sell in lieu of payment for the drilling; one of the scandals underlying this program is that the companies contracted to sell the oil were getting contracts because they were cozy with someone in DOI, not because they could get us the best price. 

Among other things this report reveals is that Smith repeatedly offered himself as a consultant to companies doing business with RIK, promising to alert those companies of opportunities with other companies doing business with RIK.

But what really fries my ass is this bit. 

We interviewed yet another RIK employee who stated that in approximately 2005, Smith "insisted" that she ride in his car from one business establishment to another, and she agreed. 

The employee stated that Smith took "the long way" between the two businesses, and during the drive, he asked to go to her nearby home, but she refused. "He wanted to have sex; I said no," she recalled. Smith then asked if she would have oral sex with him, but she told him she did not want to. She said then Smith "basically forced [her] head into his lap," and she performed oral sex on him while he drove the car slowly. She said she resisted Smith when he pulled her head into his lap, but Smith did not relent and continued to pull her head down. She said Smith was "real persistent" but not violent, and she did not feel as though she had been sexually assaulted by Smith. She stated that it was difficult for her to have sex with Smith because he superivised her and RIK, but she "felt like [she] could get fired," so she did what Smith wanted. SHe said she was "scared" that if she did not do what Smith wanted her to do, it could possibly affect her employment. 

The report goes on to describe Smith telling this employee, when the OIG investigations began, that he was going to deny it if asked about it by investigators.

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I Hate to Say I Told You So…

In May of last year, I questioned whether, after Monica Goodling won immunity, we’d get anything from giving her immunity.

And as today’s article explains, in that role she has done a number of things that clearly violate federal employment practices. She has denied promotions to people who appear to be Democrats, has asked partisan questions in interviews for career positions, and she asked one nice Republican if he had ever cheated on his wife.

We’re about to excuse Monica all of these actions–actions which span six years of efforts to politicize DOJ–and in so doing, ensure that the IG investigation into these activities may expose further illegalities, but no actionable way to hold Goodling accountable for them. And what are going to get in exchange? What higher up is she going to deliver us, with her immunized testimony?

And in August of last year, I pointed out that all of the people who had politicized our government had resigned from the Administration–and therefore given the Administration immunity for having turned our government into an instrument of the Republican party.

by The Washington Post, enlisting political appointees at every level of government in a permanent campaign that was an integral part of his strategy to establish Republican electoral dominance.


Investigators, however, said the scale of Rove’s effort is far broader than previously revealed; they say that Rove’s team gave more than 100 such briefings during the seven years of the Bush administration. The political sessions touched nearly all of the Cabinet departments and a handful of smaller agencies that often had major roles in providing grants, such as the White House office of drug policy and the State Department’s Agency for International Development.

Well, so what? What are you going to do about it?

See, for the most part, we’re talking about civil Hatch Act violations. And the punishment for civil Hatch Act violations? To be fired from your job. Shall we review the names of those most involved in leading this process?

  • Karl Rove
  • Sara Taylor
  • Scott Jennings
  • Barry Jackson
  • Ken Mehlman
  • Susan Ralston

Rove, Taylor, Mehlman, and Ralston are gone, and Jackson is rumored to be leaving. Add in Monica Goodling, who only admitted to her massive Hatch Act violations after she resigned. So how are you going to hold the White House responsible for its massive Hatch Act violations, if the people involved have already mooted the only punishment available?

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

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