Politicizing Show Trials at the Same Time as Politicizing DOJ

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Marty Lederman links to the important opinion disqualifying General Thomas Hartmann from any involvement in Salim Ahmed Hamdan’s–Osama bin Laden’s driver–military tribunal. (Kudos to Marty Lederman for thwacking the traditional media for touting an opinion’s limited availability–and then not providing a link to that opinion.)

As Marty notes, the opinion does much more than the traditional press coverage of the opinion lets on–though as always, Carol Rosenberg’s coverage of the show trials is quite good. The opinion basically affirms that the Gitmo show trials under Hartmann have been just that–trials driven by political motivations rather than legal evidence. Go read the opinion, written by Judge Keith Allred, for the timeline it offers of Hartmann’s (and others’) attempts to tailor the show trials to political considerations.

I’m particularly interested in the coincidence of timing the opinion reveals. The Bush Administration started crafting its show trials at precisely the same time–fall 2006–when it was engineering the firing of 8 US Attorneys for political reasons.

5. About 28 September of 2006, [Colonel Morris Davis] attended a meeting of the Senior Oversight Group, held in the office of Deputy Secretary of Defense Gordon England. During one of these meetings, Mr. England said "there could be strategic political value in getting some of these cases going before the [November 2006–editorial comment original] elections. We need to think about who could be tried" or words to that effect. The commission takes judicial notice that the Supreme Court issued Hamdan v. Rumsfeld in June 2006 and that the Military Commissions Act was not signed until late October 2006. Consequently, there was no possible way in which any military commission case could be referred, much less brought to trial, before the November 2006 elections.

[snip]

Colonel Davis viewed [England’s] remark as an opinion, rather than a command. Colonel Davis affirmatively denies that this statement had any effect on any decision he made with respect to Mr. Hamdan’s case.

7. During the same meeting, then-Under Secretary of Defense for Intelligence Mr. Steve Cambone opined that Department of Defense (DoD) attorneys were not sufficiently experienced to handle these cases, and that they needed to get some Department of Justice (DOJ) attorneys involved. Although no DOJ attorney had made an appearance in a military commission hearing before that date, they have since been assigned to military commission trial teams.

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Bloching Justice Or Obstructing Justice?

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As you may have seen by now, the FBI has executed a full blown raid on the office and home of Scott Bloch, the DOJ head of the Office of Special Counsel.

Federal Bureau of Investigation agents raided the Office of Special Counsel here, seizing computers and documents belonging to the agency chief Scott Bloch and staff.

More than a dozen FBI agents served grand jury subpoenas shortly after 10 a.m., shutting down the agency’s computer network and searching its offices, as well as Mr. Bloch’s home. Employees said the searches appeared focused on alleged obstruction of justice by Mr. Bloch during the course of an 2006 inquiry into his conduct in office.
…
Mr. Bloch has been under investigation himself since 2005. At the direction of the White House, the federal Office of Personnel Management’s inspector general is looking into claims that Mr. Bloch abused his investigative authority, improperly retaliated against employees or dismissed whistleblower cases without adequate examination.

You can read the original WSJ article here. The New York Times adds:

Mr. Bloch was in the news a year ago when his office began to look into political briefings given to employees of several agencies by aides to Karl Rove, who was then President Bush’s chief political adviser. The White House insisted at the time that the briefings met the definitions of allowable activities.

Mr. Bloch’s critics quickly accused him of announcing an inquiry into the Rove-inspired briefings simply to draw attention away from his own shortcomings. At the time, he was the target of a complaint filed by a group of employees who accused him of trying to dismantle his own agency, of illegally barring employees from talking to journalists and of reducing a backlog of whistle-blower complaints by simply discarding old cases.

The questions regarding this raid are just beginning, and the web of conflicts raised is absolutely endless. Here are some initial things to chew on and discuss as I delve further into the legality and propriety of this bizarre situration.

Is this Rove’s and Rachel Paulose’s attempt at revenge on Bloch for going after them? Asked by commenter Mogolori at Dkos.

Is Bloch a loyal Bushie who got pushed too far, and the Rove thing was just more than he could stomach, and he decided midstream to do the right thing? Asked offline by LHP. Decent question, but I don’t think it has my vote.

You don’t think this could distract Read more →

Kyl Agrees to IG Reform–but Sustains DOJ Lawyer’s Protection

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POGO has a review of the Senate bill passed Wednesday that will strengthen the independence of the nation’s Inspectors Generals. As it describes, John Kyl was able to water down some of the key provisions of the bill, but it does make some improvements. As someone who has struggled to find IG reports buried in DHS’ and DOD’s websites, for example, I’m particularly fond of this one:

All IG websites must be clearly and directly accessible from their agencies’ home pages, and IG reports must be posted within 3 working days of release.

No longer can agencies hide bad news by making the IG reports inaccessible.

I’m particularly intrigued, however, by one of the provisions that Kyl struck from the bill–a move to give DOJ’s IG authority to investigate the lawyers at DOJ.

Finally, Kyl’s amendment did away with Justice Department Inspector General Glenn Fine’s most cherished desire: that he be granted authority to investigate Justice lawyers accused of engaging in professional misconduct. Such allegations–as distinct from questions of fraud or abuse–are currently handled by the DOJ Office of Professional Responsibility (OPR), and Kyl, in a masterpiece of faint praise, announced that "there is no evidence that this Office’s reviews are anything less than adequate."

I’ve done posts on this here and here. The issue is important because, when Alberto Gonzales was attempting to spike any real investigation into the OLC authorization of the warrantless wiretap program and of the USA purge, he attempted to give OPR–and not OIG–the exclusive investigative authority. Recently, too, OIG had to refuse to investigate Yoo’s torture memos because it doesn’t have the mandate to conduct such investigations. As Glenn Fine explained the problem in testimony before the Senate:

Unlike all other OIGs throughout the federal government who can investigate misconduct within their entire agencies, the DOJ OIG does not have complete jurisdiction throughout the DOJ. Rather, the DOJ OIG can investigate misconduct throughout DOJ with one notable exception: the OIG does not have the authority to investigate allegations against DOJ attorneys acting in their capacity as lawyers – litigating, investigating, and providing legal advice – including such allegations against the Attorney General, Deputy Attorney General, and other senior Department lawyers. Instead, the DOJ Office of Professional Responsibility (OPR) has been assigned jurisdiction to investigate such allegations.

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Fitz v. Rove, Part VI

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The suggestion that Bob Kjellander was working with Rove to have Fitz fired is not new.

In a hearing before court began, prosecutors said they hoped to call Ali Ata, the former Blagojevich administration official who pleaded guilty to corruption yesterday, to the stand.

Assistant U.S. Atty. Carrie Hamilton said she believed Ata would testify to conversations Ata had with his political patron, Rezko, about working to pull strings to kill the criminal investigation into Rezko and others when it was in its early stages in 2004.

"[Ata] had conversations with Mr. Rezko about the fact that Mr. Kjellander was working with Karl Rove to have Mr. Fitzgerald removed," Hamilton told U.S. District Judge Amy St. Eve.

Back in the days when there was question whether Fitzgerald would be ousted in 2006 (before the USA purge broke), Chicago commentators regularly noted how badly Chicago pols–and Kjellander in particular–wanted to see Fitzgerald gone.

And there’s good reason to think he might be [fired], aside from the president’s non-assurance. One of the chief practitioners of Illinois establishment politics is Republican operative Bob Kjellander, who brags (whether true or not) about his friendship with Bush chief political strategist, Karl Rove. Despite Kjellander’s engineering Bush defeats in Illinois and other Midwest states, the White House (Rove?) thought he was pretty hot stuff and brought him to the Beltway where he is engineering who knows what political disaster.

Kjellander also will be credited with the coming GOP election disaster in Illinois, thanks to his help in selecting state Treasurer Judy Barr Topinka to run against incumbent Blagojevich. She’s a dear lady, a treasured "moderate," but not a gusty independent willing to stand up to the political establishment.

The point is that Kjellander (pronounced Shelander), a Republican national committeeman who has received $800,000 in unexplained fees through a state bond-borrowing deal engineered by Democrat Blagojevich, is no fan of Fitzgerald’s either. No one, in other words, in the political establishment in Chicago or Washington, is pushing for Fitzgerald’s reappointment. [my emphasis]

And after news broke last year that Fitzgerald had been on the firing list, at least one Chicago commentator predicted that Kjellander was the reason, and not the Plame case. Read more →

Turdblossom Writes Letters

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Dear Bob Novak:

It boils down to this: as a journalist, do you feel you have a responsibility to dig into the claims made by your sources, seek out evidence and come to a professional judgment as to the real facts? Or do you feel if a charge is breathtaking enough, thoroughly checking it out isn’t a necessity?

I know you might be concerned that asking these questions could restrict your ability to make sensational charges in your column, but don’t you think you have a responsibility to provide even a shred of supporting evidence before sullying the journalistic reputations of the Washington Post?

People used to believe journalists were searching for the truth. But your column increasingly seems to be focused on wishful thinking, hoping something is one way and diminishing the search for facts and evidence in favor of repeating your fondest desires. For example, while you do ask the CIA whether Ms. Plame sent her husband, you did not press Armitage and Libby when they said "Wilson’s wife suggested sending him to Niger."

The difficulty with your approach is you reduced yourself to the guy in the bar who repeats what the fellow next to him says – “Wilson’s wife suggested sending him! Wilson’s wife suggested sending him!” – only louder, because it suits your pre-selected story line ("the CIA is attacking the Vice President") and you don’t want the facts to get in the way of a good fable. You have relinquished the central responsibility of an investigative reporter, namely to press everyone in order to get to the facts. You didn’t subject the statements of others to skeptical and independent review. You have chosen instead to simply repeat something someone else says because it agrees with the theme line your sources fed you, created the nifty counter-attack to shield the Vice President.

Oh I’m sorry. Did I say this was a letter to Novak criticizing him for his column outing Valerie Plame? I meant it was a letter to Dan Abrams to, once again, say things to the press Rove is unwilling to say under oath to HJC. (h/t TP)

Conyers Calls Luskin’s Bluff on Rove Testimony

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Well, that didn’t take long.

ThinkProgress reports that Robert Luskin is already backing off his PR gambit promise to have Rove testify before Congress.

Yesterday, House Judiciary Committee chairman John Conyers (D-MI), joined by members Linda Sánchez (D-CA), Artur Davis (D-AL), and Tammy Baldwin (D-WI), wrote to Rove and requested that he testify before the committee about the politicization of the Justice Department, including the prosecution of Siegelman.

But now Luskin is saying that Rove won’t testify unless the White House says he can, claiming that MSNBC took his comments “out of context.” Roll Call reports:

MSNBC provided Roll Call with an e-mail exchange with Luskin that the network broadcast in which a producer asked, “Will Karl Rove agree to testify if Congress issues a subpoena to him as part of an investigation into the Siegelman case?”

“Sure,” wrote Luskin, according to the e-mail. “Although it seems to me that the question is somewhat offensive. It assumes he has something to hide.”

But in an interview with Roll Call, Luskin said that his MSNBC comments were taken out of context.

“Whether, when and about what a former White House official will testify … is not for me or my client to decide,” but is part of an ongoing negotiation between the White House and Congress over executive privilege issues, Luskin said.

See, Luskin, it’s not so easy to roll the press when someone can call you on your claims publicly.

Any bets how long it takes Conyers to get the subpoena pulled together? Hours? Days?

This also raises the likelihood that Solicitor General Paul Clement is hard at work inventing reasons why Rove can invoke executive privilege on an issue that he feels free to blab about in the press.

Conyers to Turdblossom: If You’ll Talk to GQ and Fox, Why Not HJC?

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Conyers has issued another salvo in HJC’s investigation of politicized prosecution. Most notably, that includes an invitation to Karl Rove to come testify to HJC.

In any event, particularly since you have briefly commented on this matter in GQ and while serving as a commentator on Fox News, we believe the subject, like other seroius charges regarding the role of politics at the Department of Justice, should be addressed before a key investigating Committee of Congress.

Between Yoo and Rove, Solicitor Paul Clement is going to have to invent a whole new kind of privilege to protect those willing to blab to the press but not to Congressional committees.

Perhaps more interesting, HJC has released a report on politicized prosecutions, which includes some new information on the Siegelman affair. For example, it reveals that Scrushy’s lawyer Art Leach believed he had made a plea deal with the prosecutors, only to have that deal rejected by someone higher than Criminal Division head Alice Fischer.

Other evidence also supports the contention that senior officials at the Department or the White House pushed this prosecution. Mr. Leach described a notable conversation he had with the then-acting head of the Department’s Public Integrity Section, Andrew Lourie.83 According to Mr. Leach, he and Mr. Lourie met on April 6, 2006, to discuss the possibility of resolving the matter against Mr. Scrushy before trial. Mr. Leach states that he had worked out an arrangement that was acceptable to the line prosecutors working the case, and that the purpose of this meeting was to obtain approval for the deal. Mr. Leach recalls that the meeting went well, and he believed Mr. Lourie would approve the proposed resolution. A week later, however, the proposed deal was rejected. When Mr. Leach asked Mr. Lourie why he would not approve a deal that the local prosecutors had supported, “Lourie informed me that the decision was made over his head.”84 Mr. Leach asked if that meant the head of the Criminal Division, Assistant Attorney General Alice Fisher, had made the decision, and was told “the decision had been made higher than the AAG for the Criminal Division.”85 Mr. Leach reports that he was “puzzled” by this response because he “could not imagine a decision like this rising to that level of the Department of Justice.”86 Read more →

The DNC Email Ruling

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The folks that read and participate at Emptywheel are, in my humble opinion, without any question the best anywhere at deconstructing email issues and cases, and it sure looks to me like some of the people litigating these various matters are picking up on that too. That being the case, who could possibly deny you more fodder?

The Democratic National Committee has been suing the DOJ in DC District Court to obtain some 68 pages of emails relaing to the US Attorney purge. The main reporting to date has been from Politico:

A federal judge has handed the White House a legal victory in a battle with the Democratic National Committee over e-mails related to U.S. attorney firings.

District Judge Ellen Huvelle of the U.S. District Court for the District of Columbia ruled Thursday that the DNC does not have a right under the Freedom of Information Act to 68 pages of e-mails sent between White House and Justice Department officials simply because the White House e-mail traffic was transmitted on a server controlled by the Republican National Committee.
…
In dismissing the DNC lawsuit, Huvelle ruled that it was "based on the false factual premise that White House officials only used their RNC e-mail accounts for political communications."

Additionally, Huvelle decided that just because an RNC server was used to send the messages — 68 pages out of more than 5,000 which have been denied to the DNC — it is not enough to automatically disqualify the Justice Department from claiming a FOIA exemption in refusing to release them.

"It is therefore clear that RNC e-mail accounts were used (rightly or wrongly) both for official and RNC business, and thus the nature of the server is not necessarily informative as to whether the document contained official or political communications," Huvelle wrote in her opinion.

I think there are two issues to be contemplated here. The first is the relative propriety of Huvelle’s decision, and foundation therefor, in the DNC case, and the second is what implications it may have for the greater mass of contentious email issues that are percolating in our midst. Here is the full opinion rendered by Judge Huvelle in Democratic National Committee v. United States Department of Justice, CV 20070-712 (ESH-DDC).

There were originally 5,337 pages of emails responsive to the DNC’s FOIA request, but agreement was reached as to all but 68 pages. All of the Read more →

Nacchio Gets a New Trial

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In news that may have repercussions for Bush’s attempt to hide all details of his warrantless wiretapping program, Joseph Nacchio just won a new trial (h/t scribe). Mind you, the reason his trial was overturned does not relate directly to his claim that the Administration retaliated against him because he refused to illegally wiretap Americans. Rather, the Appeals Court overturned his case because he was not allowed to make a case for his expert witness.

A federal appeals court ordered a new trial Monday for former Qwest CEO Joe Nacchio, saying the trial judge wrongly excluded expert testimony important to Nacchio’s defense in his insider trading case.

[snip]

Attorneys for Nacchio told the 10th U.S. Circuit Court of Appeals in December the case against him didn’t meet standards set by previous court rulings.

Nacchio’s attorney, Maureen Mahoney, also told the court that U.S. District Court Judge Edward Nottingham wrongly prevented a defense witness from testifying and that Nottingham’s instructions to the jury were inadequate.

[snip]

At the appeals hearing, the judges repeatedly asked Oestreicher why Nottingham denied Daniel Fischel from testifying in Nacchio’s defense. Prosecutors say the defense didn’t establish the reliability of Fischel’s opinions or disclose how he arrived at them.

Nacchio’s attorneys say Fischel, an expert on corporate law and markets, was a core part of his defense and could have explained to jurors what must be publicly disclosed and that Nacchio’s stock sales were to diversify his portfolio. Mahoney said a reasonable jury hearing testimony from Fischel would have acquitted Nacchio.

So the Appeals Court has not specifically said Nacchio should be able to tell us about being strong-armed to wiretap Americans (that’s not why they accepted his appeal). But given another trial–not to mention the House’s recent confirmation that different carriers responded to government requests differently (that is, AT&Treason happily wiretapped us, while Qwest resisted)–Nacchio might have the opportunity to explain why he thinks he was retaliated against because he believes in the Fourth Amendment.

Who Is Carl Truscott and Why Did Bush’s DOJ Protect Him?

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Actually, I know who Carl Truscott is–he’s the former head of Bureau of Alcohol, Tobacco, and Firearms who resigned in 2006 under pressure for financial and other management abuses. But what I’m really interested in is why Bush’s DOJ went to great lengths to protect him.

Truscott’s Abuses

The former Deputy Director of BATF, Edgar Domenech, filed a whistleblower complaint on Monday asserting that he was demoted for reporting Truscott’s abuses. Domenech’s complaint details Truscott’s abuses, including:

  • Creating his own personal security detail
  • Dragging official photographers to all his events
  • Building an gym expansion in a building that would only be used for two additional years
  • Adding $4 million in design changes to the new BATF headquarters
  • Hiring an unqualified former co-worker to an Assistant Director position

Perhaps the best example of Truscott’s egomania is the way he’d invite his buddies over for lunch on the BATF’s dime:

On numerous occasions during Director Truscott’s.tenure, he has invited individuals representing private’ corporations and businesses with no apparent connection to ongoing contracts or activities with ATF to have lunch at government expense in his office or at nearby restaurants. Many of these individuals are former members of the Secret Service, or were referred to him by retired or current Secret service members. During the course of these meals, two female (GS-13 and GS-12) staff members are required to serve Director’ Truscott and his guests in the Director’s’ Office and have been specifically instructed to announce to the Director that "Lunch is served", causing undue humiliation to these professional staff employees and forcing them to engage in activity at work which is outside the scope of their duties. This is clearly indicative of a hostile work environment towards women. These employees have not advised Director Truscott that these unexpected service requests are degrading for fear of reprisal and intimidation. Initially, the lunches he hosted were sandwiches, however he recently demanded of staff to provide hot meals for his personal guests, which the staff must ayange, acquire and serve, causing additional strain and hours for ATF support staff to ensure the meals are served at appropriate temperatures. [my emphasis]

The complaint goes on to explain that Truscott’s financial mismanagement resulted in a net $20 million loss in BATF’s operating budget in FY 2006, leading to shortages of key equipment and capabilities.

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