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DOJ’s Attempt to Shield Obstruction of Justice

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I agree with bmaz. This letter from DOJ refusing to turn over the Bush and Cheney interview reports is a load of crap (h/t WO, who’s doing all the heavy lifting today). I’ve gotta go to a meeting, so check back later for (I hope) some real smack-down of DOJ’s crap. But here are the key passages.

In seeking to accommodate the Committee’s requests, however, we must take into account core Executive Branch confidentiality interests and fundamental separation of powers principles, and we must avoid taking steps that could compromise the effectiveness of future criminal investigations involving White House personnel. Consequently, as we have informed the Committee, we are not prepared to provide or make available any reports of interviews with the President or the Vice President fiom the leak investigation. To do so would allow Congress to obtain through access to Justice Department investigative files information that it otherwise could not gather through its own inquiry because of separation of powers.

Your various letters on this matter have explained that the Committee’s legislative purpose for its inquiry concerns the review of White House procedures for handling classified information. We have attempted to accommodate this interest by permitting the Committee to review the reports of interviews of senior White House staff, which contain some information relevant to this subject. However, these reports also contain considerable information detailing the internal White House deliberations and communications of senior White House staff concerning how they should respond on behalf of the President to public assertions challenging the accuracy of a statement made in the President’s State of the Union Address. The Executive Branch has important institutional interests in the confidentiality of such White House deliberations and communications, and we therefore accommodated the Committee’s interests by making interview reports of senior White House staff available for review but not copying, with limited redactions of presidential and vice presidential communications and personal information not germane to the leak investigation.

We are not prepared to make the same accommodation for reports of interviews with the President and Vice President because the confidentiality interests relating to those documents are of a greater constitutional magnitude. The President and the Vice President are the two nationally elected constitutional officers under our Government. Read more →

Those Democratic Committee Chairs Aren’t COORDINATING, Are They?

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Here’s a little timeline, just for fun.

May 30: Conyers troubled by McClellan’s revelations

June 3: Waxman writes to Mukasey, demanding Bush Cheney reports by June 10

June 9: Conyers schedules McClellan testimony for June 20

June 11: Mukasey has his underling reply to Waxman

June 16, 2008: Oversight subpoenas Mukasey for Bush Cheney reports

June 20, 2008: During McClellan hearing, Conyers announces he’s going to request the Bush Cheney reports

June 23, 2008: Due date on Oversight subpoena

June 24, 2008: DOJ tells Oversight to fuck off

June 26, 2008: HJC votes to subpoena Mukasey for a laundry list of documents

June 27, 2008: HJC delivers subpoena, including demand that Mukasey turn over the FBI reports on the Bush and Cheney interviews

June 27, 2008: Oversight requests documents from Fitzgerald

July 3, 2008: Due date for documents from Fitzgerald

July 7, 2008: Due date on HJC subpoena

Now, far be it for me to suggest that Henry Waxman and John Conyers–members of the same political party (!)–are in cahoots. In fact, all my experience with the Democrats since they’ve been in the majority makes me believe that the chances they’re working in tandem here are extremely small.

But still. Look at the dates. HJC only voted to subpoena Mukasey for the Bush and Cheney interview reports (and a laundry list of over materials) after Mukasey had already told Waxman to fuck off. And conveniently, Waxman has given Fitzgerald a deadline that comes before Mukasey’s deadline to hand over the reports to HJC.

You see, I can’t help but think that Oversight has a relatively weak claim to those interview reports. Ostensibly, they have asked for the reports to answer the following questions:

(l) How did such a serious violation of our national security occur? (2) Did the White House take the appropriate investigative and disciplinary steps after the breach occurred? ‘ And (3) what changes in White House procedures are necessary to prevent future violations of our national security from continuing?

In other words, Waxman has described the rationale of his request in terms of strict oversight roles–ostensibly to prevent someone else–besides the Barnacle, I guess–from outing CIA spy with impunity. DOJ has allowed Oversight to see (but not keep) interview reports showing clearly that Bush and Cheney not only didn’t launch an investigation into the leak. They obstructed justice, by exonerating Rove and Libby publicly. But if, given what Mukasey has seen and we haven’t seen, Bush and Cheney can claim they had declassified Plame’s identity before Libby and everyone else leaked it, well, then, the whole question of why they didn’t do an investigation is moot. Read more →

What Is Michael Mukasey Helping Dick Cheney to Cover Up?

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Never mind. I know the answer. Attorney General Mukasey is helping Cheney and Bush hide the fact that they played insta-declassification games that may have–though they’ll never tell–included leaking Valerie Wilson’s identity.

Apparently, DOJ responded to Waxman’s subpoena for the Bush and Cheney interview reports by telling Waxman to go fuck himself (h/t WO).

On June 16,2008, having been informed in writing by the Justice Department that it would not produce the interview reports of the President and Vice President, the Committee issued a subpoena for those interview reports, as well as other responsive documents not previously produced, with a return date of June23,2008. On June 24,2008, the Justice Department informed the Committee by letter that it would not comply with the subpoena and would not "provide or make available any reports of interviews with the President or the Vice President from the leak investigation."

Waxman appears to be calling DOJ on whatever grounds DOJ invoked when refusing to comply with the subpoena, because he’s asking Fitz for clarification on whether or not there was an agreement between him and the Barnacle Branch that would shield the FBI reports from any exposure.

To assist the Committee in evaluating the Department’s position, I request that you produce the following information to the Committee no later than July 3, 2008:

1. Documents sufficient to show the date and terms of all agreements, conditions, and understandings between the Office of Special Counsel or the Federal Bureau of Investigation and the President of the United States, regarding the conduct and use of the interview or interviews of the President conducted as part of the Valerie Plame Wilson leak investigation.

2. Documents sufficient to show the date and terms of all agreements, conditions, and understandings between the Offrce of Special Counsel or the Federal Bureau of Investigation and the Vice President of the United States, regarding the conduct and use of the interview or interviews of the Vice President conducted as part of the Valerie Plame Wilson leak investigation.

I’m guessing, but it appears that Mukasey has claimed that Fitz made some kind of agreement with Bush and Cheney, and that agreement prevents him from turning over their interview reports. But, as Waxman notes, these reports were among those that Fitzgerald determined "were not protected by Rule 6(e)."

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Mukasey’s Subpoena

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Is here.

I’m going to run out to do battle with Sears again (they’ve got a new dehumidifer for me, and boy is it muggy here in the Midwest), so I won’t get a chance to analyze the full–and long–laundry list till I win (!) my next battle with Sears.

But just as a teaser, here’s how Conyers worded the demand for the Bush and Cheney interviews.

All documents from the office of former Special Counsel Patrick J. Fitzgerald described below for which the former Special Counsel has not determined that disclosure would be barred by Federal Rule of Criminal Procedure 6(e) governing grand jury secrecy:

a) Complete and unredacted versions of transcripts, reports, notes, and other documents relating to any interviews outside the presence of the grand jury of President George W. Bush.

b) Complete and unredacted versions of transcripts, reports, notes, and other documents relating to any interviews outside the presence of the grand jury of Vice President Richard Cheney.

c) Complete and unredacted versions of 302 interview reports relating to interviews of the following witnesses in the investigation: Karl Rove, Scooter Libby, Scott McClellan, Dan Bartlett, and Andrew Card.

I wonder if Bush and Cheney are rethinking their decision not to appear before the grand jury yet?

How to Get the Transcripts

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Skdadl asked, with due skepticism, whether Mukasey would ever hand over the Bush and Cheney transcripts. I was thinking about just that on my walk with McCaffrey the MilleniaLab. Here’s how I think–if HJC were to play it correctly–it might play out.

In his letter to Mukasey, Waxman used McClellan’s public statements to demonstrate the need to release the transcripts and FBI reports.

New revelations by fonner White House Press Secretary Scott McClellan raise additional questions about the actions of the President and the Vice President. Mr. McClellan has stated that "[t]he President and Vice President directed me to go out there and exonerate Scooter Libby." He has also asserted that "the top White House officials who knew the truth including Rove, Libby, and possibly Vice President Cheney – allowed me, even encouraged me, to repeat a lie." It would be a major breach of trust if the Vice President personally directed Mr. McClellan to mislead the public.

In his FBI interview, Mr. McClellan told the FBI about discussions he had with the President and the Vice President. These passages, however, were redacted from the copies made available to the Committee. Similar passages were also redacted from other interviews. There are no sound reasons for you to withhold the interviews with the President and the Vice President from the Committee or to redact passages like Mr. McClellan’s discussions with the President and the Vice President. [my emphasis]

Now, as I understand it, Mukasey didn’t actually turn over the transcripts themselves to the Oversight Committee–he just let them look at the reports. Nevertheless, some smart staffer on Waxman’s committee must have notes of the context of the redactions in McClellan’s FBI reports.

So the first thing HJC needs to do is get a copy of the notes that staffer took.

Then, they should address a question to Scottie that goes something like this:

Mr. McClellan, In the course of your interview with the FBI on November XX, John Eckenrode asked you about your discussions with Bush and Cheney regarding the Plame leak. Can you tell us what you said in response?

Now, there’s something odd I’ve been puzzling over. We know from Waxman’s letter that there are clear references to Bush and Cheney in McClellan’s FBI interview report. Read more →

Mukasey’s Whack-a-Mole Mortgage Fraud Approach

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For some reason, Michael Mukasey doesn’t want to investigate and prosecute mortgage fraud using a comprehensive, centralized approach.

Attorney General Michael B. Mukasey rejected on Thursday the idea of creating a national task force to combat the country’s mortgage fraud crisis, calling the problem a localized one akin to “white-collar street crimes.”

Mr. Mukasey made clear that he saw the mortgage fraud problem at the root of the nation’s housing crisis as a serious one. But he said he was confident that the Justice Department’s current approach — using local prosecutors’ offices around the country to oversee separate F.B.I. investigations — was adequate.

Since he took over as attorney general last November, Mr. Mukasey has grappled with how best to deal with the law enforcement side of the growing housing crisis. He said in March, for instance, that the Justice Department was still struggling to determine whether there was a “larger criminal story” behind the housing crisis.

He gave his most definitive answer on Thursday in a briefing for reporters, saying that he did not think that the kind of national task force created at the Justice Department in 2002 to investigate the collapse of Enron was “the proper response” to the current crisis.

[snip] 

 The Federal Bureau of Investigation is investigating 19 major corporate fraud cases related to the mortgage crisis. The targets of most of those investigations have not been disclosed. In addition, the F.B.I. has 1,380 small mortgage fraud investigations now open in field offices around the country, a sharp increase over previous years, officials said.

Now perhaps there’s a very good reason to keep these investigations localized. But the cynic in me thinks that a centralized approach might just demonstrate the need for increased federal regulation on the lending industry. 

Waxman Closing in on Dick Cheney for Outing Valerie Wilson

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Henry Waxman noted the same thing that I did about Scottie McClellan’s book. He noticed that Scottie McC’s book sure came close to saying Dick Cheney and George Bush were personally involved in the outing of Valerie Wilson.

New revelations by former White House Press Secretary Scott McClellan raise additional questions about the actions of the President and the Vice President. Mr. McClellan has stated that "[t]he President and Vice President directed me to go out there and exonerate Scooter Libby." He has also asserted that "the top White House officials who knew the truth – including Rove, Libby, and possibly Vice President Cheney – allowed me, even encouraged me, to repeat a lie." It would be a major breach of trust if the Vice President personally directed Mr. McClellan to mislead the public.

Now, I’ve been quietly trying to find out whether or not Michael Muksaey had handed over Bush and Cheney’s interview transcripts to Henry Waxman. Seeing as how he’s asking again, I’d say the answer’s no.

On December 3, 2007, I wrote to request that you arrange for the production of documents relating to Special Counsel Patrick Fitzgerald’s investigation into the leak of the covert identity of CIA officer Valerie Plame Wilson, including copies of FBI interview reports of White House officials. I appreciate that you have since made redacted versions of the interview reports of Karl Rove, I. Lewis “Scooter” Libby, and other senior White House officials available to the Committee.

I am writing now to renew the Committee’s request for the interview reports with President Bush and Vice President Cheney and to request unredacted versions of the interviews with Karl Rove, Scooter Libby, Condoleezza Rice, Scott McClellan, and Cathie Martin. I also request that the Department provide all other responsive documents that were approved for release to the Committee by Mr. Fitzgerald. [my emphasis]

And in the remainder of Waxman’s letter, he makes it clear that doing anything less than turning this information over to Waxman’s committee is a deliberate attempt to cover up the fact that Dick Cheney outed Valerie Plame, with Bush’s involvement.

In his interview with the FBI, Mr. Libby stated that it was "possible" that Vice President Cheney instructed him to disseminate information about Ambassador Wilson’s wife to the press. This is a significant revelation and, if true, a serious matter. It cannot be responsibly investigated without access to the Vice President’s FBI interview.

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Mukasey’s Troubling Historical Argument

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Mukasey’s defense of John Yoo in his commencement address at Boston College Law School has drawn a lot of attention.

Today, many of the senior government lawyers who provided legal advice supporting the nation’s most important counterterrorism policies have been subjected to relentless public criticism. In some corners, one even hears suggestions—suggestions that are made in a manner that is almost breathtakingly casual—that some of these lawyers should be subject to civil or criminal liability for the advice they gave. The rhetoric of these discussions is hostile and unforgiving.

But few people have examined Mukasey’s rationale for defending Yoo.

Essentially, Mukasey is making an argument that everyone concluded after 9/11 that timid lawyering had contributed to 9/11, and so if we criticize Yoo (and Addington and Gonzales and–I would argue, John Rizzo, Acting Counsel for CIA when the torture tapes were destroyed) for their decisions made under pressure to make lawyering less timid, our nation will be less secure as a result.

To make this argument, Mukasey relies on Jack Goldsmith’s discussion of risk aversion in his book Terror Presidency. But Mukasey grossly misrepresents what Goldsmith describes as the primary root of risk aversion. Repeatedly, Goldsmith compares the difference between the legal means Roosevelt used in World War II with those the Bush Administration uses, and goes on to suggest that the rise of human rights in the intervening years had constrained presidential action. Goldsmith mentions, among other things, prohibitions on torture (most of them international) and assassination. Significantly, of the many legal developments he cites specifically as creating new limits on presidential action, only one–FISA–was a law passed in the US in response to intelligence operations gone legally awry (Goldsmith also mentions EO 12333, which is an order signed by Saint Ronnie, not a law passed by Congress or an international body, and he mentions "an aggressive post-Watergate Congress … crafting many of the laws that so infuriatingly tied the President’s hands in the post-9/11 world").

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Conyers to Mukasey: So You Did Spin Shamelessly, Didn’t You?

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(Updated with selise’s YouTube showing Leahy confronting Mukasey on his misrepresentation.) 

I really really like this letter Conyers, Nadler, and Scott sent to Attorney General Mukasey on his claim that they could have prevented 9/11 if only FISA hadn’t been preventing them. In it, they basically nail DOJ on its non-responsive response to their earlier letter asking about Mukasey’s claim. If you recall, the prior letter basically gave Mukasey a few choices: either Mukasey completely misunderstands FISA, the Administration withheld information from the 9/11 Commission, or the Administration screwed up.

These include a public statement by you that appears to suggest a fundamental misunderstanding of the federal government’s existing surveillance authority to combat terrorism, as well as possible malfeasance by the government prior to 9/11,

The underlying truth that DOJ won’t admit, of course, is that Mukasey misrepresented the incident in an attempt to make a case for FISA that doesn’t actually hold up.

In an apparent attempt to avoid admitting Mukasey has been spinning wildly, DOJ wrote a non-responsive response back–it turned the question into a general question about FISA legislation, rather than specific question about whether Mukasey misrepresented the facts.

We are writing about the April 10, 2008, letter from Brian Benczkowski in response to our letter of April 3, 2008, concerning disturbing recent revelations about apparent pre-9/11 failures and subsequent abuses of civil liberties by the Administration. While we appreciate the promptness of the April 10 letter, we are extremely concerned about its failure to address several of our specific inquiries.

[snip]

In addition, however, the April 10 letter does not respond to several of our requests. Our letter did not, as you characterize it, generally inquire “why FISA’s emergency provisions were not an adequate substitute for the authorities the Government has obtained under the Protect America Act.” Rather, our inquiry concerned the specific phone call about which you spoke. We asked whether the then-existing emergency provisions would have allowed interception of the specific call at issue, if indeed the foreign portion of the call was a known terrorist location. To the extent that your response set forth an argument for the PAA or the Administration’s preferred version of FISA reform, it was non-responsive to our request for information. Read more →

“We Don’t Have Time to Respond to Congressional Requests…”

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"…because we’re too busy stonewalling."

That appears to be DOJ’s currently operative excuse explaining why it has yet to respond to Congressional inquiries, some of which are three years old.

Justice Department spokesman Peter Carr said that officials spend "an enormous amount of department time and resources" responding to congressional inquiries, and that they have replied to more than 500 questions from lawmakers this year. "We agree that there is always room for improvement in our effort to be responsive to Congress," Carr said.

At the same time, he said, many requests cover sensitive issues that require cutting through a thicket of pending lawsuits and classified documents, as well as checking with other government agencies and the White House. All those efforts can interfere with prosecutors’ day-to-day work, he added.

"The people in the department who must answer these inquiries are many of the same people who are making key operational decisions in the war on terrorism," Carr said.

[snip]

More than a dozen senior Justice Department officials resigned last year as congressional and internal probes of political interference intensified, adding to the disarray at Washington headquarters. In 2007, officials spent 30,000 hours responding to Congress over the firing of nine U.S. attorneys, the department said.

500 questions!!! In three months, really?!?!? Well golly. I can see how that would be really taxing. That’s an average of five whole questions a day! And how many people does DOJ employ, handling those five questions a day?

And as to the 30,000 hours responding to Congress–how much of that time includes the many brainstorming sessions at which Gonzales’ clique invented new excuses for firing excellent US Attorneys? Had DOJ simply admitted, in January, that the Bush Administration had fired nine US Attorneys for political reasons, DOJ could probably have saved two thirds of those hours.

Aside from all of Peter Carr’s whining about five questions a day, this article does include one more wrinkle in the back-story to the release of the Torture Memo.

Justice Department officials have said that they deserve credit, however, for releasing — last Tuesday — a 2003 opinion approving harsh military interrogation tactics. "Following a request of Senator Levin, DOD [the Defense Department] conducted a declassification review and determined that it would be appropriate to declassify the memorandum at this time," Justice spokesman Brian Roehrkasse said.

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