Monday, April 30, 2007

Secret Order By Gonzales Delegated Extraordinary Powers To Aides

via TPM Muckraker

an excerpt (read National Journal article here):

An original draft of Gonzales's delegation of authority to Sampson and Goodling was so broad that it did not even require the two aides to obtain the final approval of the attorney general before moving to dismiss other department officials, according to records obtained by National Journal.

The department's Office of Legal Counsel feared that such an unconditional delegation of authority was unconstitutional, the documents show. As a result, the original delegation was rewritten so that in its final form the order required "any proposed appointments or removals of personnel" be "presented to the Attorney General... for approval, and each appointment or removal shall be made in the name of the Attorney General."

The senior administration official who had firsthand knowledge of the plan said that Gonzales and other Justice officials had a "clear obligation" to disclose the plan's existence to the House and Senate Judiciary committees -- but the official said that, as far as he knew, they had not done so. When the committees began to inquire into the firings of the U.S. attorneys, the official said, Congress had a right to know that the firings were part of an ambitious effort to install administration loyalists throughout the department. The official spoke on the condition that neither his position nor agency be identified, because he feared retaliation from his superiors and the White House for disclosing aspects of the program.

Referring to the firings of the U.S. attorneys and the broader plan targeting other Justice employees, the senior official said, "You cannot separate one from the other. They were one and part of the same plan by the White House."

The official added, "The president of the United States has said it was imperative for the attorney general, and the attorney general alone, to re-establish trust with the Congress to keep his job … and you have, even after the president has said that, the attorney general and his men stiffing Congress."

Thursday, April 26, 2007

Rich Content

"On real TV, nuclear-arms experts smoothly and confidently lay out pithy conclusions. On fake TV, you get to watch them actually doing the math as they try to figure out whether there is even a pithy conclusion to be confidently laid out. Kind of makes you wonder why they call real TV real TV, doesn't it? Hence another entry in the never-ending Bloggingheads motto contest: 'Fake TV is Reality TV!'"

Two Words: Subpoena Power

Daily Kos

This morning's revelation -- just one in a series of similar revelations -- that Condi Rice was "not inclined" to honor the subpoena of the House Government Oversight committee leads us to this question: What happens if she doesn't?

It's territory we've been over before but we probably should review.

Let me start by explaining the title. Those are the words of Speaker Pelosi, spoken before the 2006 election:

Pelosi was asked what was most important about regaining majority status. "Subpoena power," she said.

But to give that some context, let's look at the set-up from the article:

Perhaps most significant among the changes if the Democrats take over is that the new Democratic committee chairs would be able to launch myriad hearings and investigations--the oversight Republicans have virtually shut down. That includes contracting scandals and governing breakdowns in the executive branch, constitutional abuses by this President and the gaping holes in America's system of elections. The House could become center stage for the war debate, with Bush's lieutenants under oath required to answer their critics. Oversight is one of the core functions of Congress. Because Republicans have willfully shunned it, oversight hearings have the potential to expose scandal and produce shocking headlines. Pelosi was asked what was most important about regaining majority status. "Subpoena power," she said.

Here's the problematic part:

The House could become center stage for the war debate, with Bush's lieutenants under oath required to answer their critics.

But what does Rice say about that? She's "not inclined" to do it. Does that sound like someone who thinks she's "required to answer" to you?

Maybe it's time to review, then, how this "most important" function of Congress works. Or rather, why it works.

A subpoena issued by Congress is ignored on pain of being held in contempt of Congress, for which you can be both fined and imprisoned. There's just one hitch:

The law pronounces the "duty" of U.S. Attorney is to empanel a grand jury and for its action on the matter. But dispute exists over whether or not the Congress can properly compel the U.S. Attorney to take this action, as the U.S. Attorney is a member of the Executive Branch and ultimately reports to the President. (The Courts have been reluctant to decide this question, claiming it is a "political question" for resolution by the elected branches of government.)

Oops! The U.S. Attorney. Seems to me that those guys have been in the news of late, but "I can't recall" exactly why.

At this point, you might wonder whether the U.S. Attorney has ever declined to prosecute a contempt of Congress charge against an administration official who had defied a Congressional subpoena. The answer is yes. In 1983, the Reagan administration's Department of Justice declined to prosecute EPA Administrator Anne Gorsuch, though she had been held in contempt by the House.

The current thinking in Congress, as far as I can tell, is that they'll ultimately seek enforcement of their subpoenas in court. That's a dangerous concession in itself, in that a co-equal branch of government could be construed as conceding that it lacks independent enforcement power absent the courts -- another co-equal branch. But even beyond that, we run into a more practical problem: What does it mean when the courts say you "must" do something?

Essentially, they issue some paper saying what's expected of you, and maybe what the penalties will be if you don't do it.

But how does that differ from the situation we already find ourselves in? We've already got paper saying what the executive branch "must" do, and even what the penalties are if they don't do it. We're already there, and still Rice says, essentially, go fly a kite.

What makes it worth paying attention to when the courts issue that paper is that if you don't comply, there are guys with guns whose job it is to make you either do what you're told, or pay the price for not doing it. The problem is, those guys with guns are part of what the "administration" calls the "unitary executive," and it is President Bush's belief that they work for him. Further, it is his belief that if he tells them to take the day off and scram, rather than enforcing what's on the paper, it's all perfectly legal, because he's The Decider.

So that's the difference between "investigative power" and "enforcement power." And it's exactly why the Constitution requires that the president "take care that the laws be faithfully executed." Because if those laws -- up to and including the laws against standing in contempt of Congress -- are not executed as faithfully against executive branch officials as they are against anyone else in the country, then essentially we have no control over the executive branch whatsoever. And that's not in accord with anyone's basic understanding of our constitutional system of government.

Now, here we are, facing Condi Rice's rejection of the subpoena, at least for the time being. Eventually, a deal may be worked out, under which she comes to the House and says she doesn't recall anything, or that if she does, whatever she recalls is perfectly legal.

But here's the question: If "subpoena power" was the most important thing there was about winning back the majority, for how long ought the majority tolerate being told that authority doesn't apply to the executive branch?

There are many conclusions you can draw from the situation. I have my favorites, and no doubt many of you have your own as well. But going forward, I think it'll be important to keep in mind these few basic facts about oversight and subpoena power:

  1. Subpoenas don't enforce themselves. People either comply with subpoenas because they're afraid not to, or they suffer the consequences of non-compliance.
  2. The consequences of non-compliance don't enforce themselves, either. People don't put themselves in jail, you've got to put them there.
  3. The people upon whom we usually rely to put law-breakers in jail are law enforcement officers. They work for the "unitary executive," not the courts.
  4. A question: If there was nobody to put you in jail for defying a subpoena, would you be bound to honor it? Not would you feel bound? Would you be bound?
  5. Finally, if you're not bound to honor a subpoena, is there such a thing as "subpoena power?"

Wednesday, April 25, 2007

Rice Subpoena

Waxman speech on issuance of Subpoena to Secretary Rice

Tuesday, April 24, 2007

Systemic Failure

The Gavel
h/t the eye

From the Oversight and Government Reform Committee:

New Evidence of Security Problems at the White House
Current and former employees of the White House Security Office have reported to Chairman Waxman that there was a systemic failure at the White House to follow procedures for protecting classified information. According to the security officers, the White House regularly ignored security breaches, prevented security inspections of the West Wing, and condoned mismanagement of the White House Security Office.

Documents and Links
  • Letter to Former White House Chief of Staff Andrew Card Regarding New Evidence of Security Problems at the White House
  • Sunday, April 22, 2007

    Kagro X

    Welcome to the party, Dahlia Lithwick.
    by Kagro X
    daily kos

    No, not the Democratic Party. I have no idea where Lithwick stands on that score.

    Rather, consider this an enthusiastic round of applause for Lithwick's latest in Slate magazine, in which she puts "in print" something that a number of us -- especially around here -- have been discussing for some time now:

    So, I've changed my mind. On sober second thought, it occurs to me that when I find myself in enthusiastic agreement with "White House insiders" and the National Review that Alberto Gonzales disgraced himself yesterday, I may have missed something important. Assuming the president watched so much as 10 minutes of his attorney general being poleaxed by even rudimentary questions from the Senate judiciary committee, it strains credulity to believe that Gonzales still has Bush's "full confidence."

    Until you stop to consider that the president wasn't watching the same movie as the rest of us and that Gonzales wasn't reading from the same script. Perhaps what we witnessed yesterday was in fact a tour de force, a home run for the president's overarching theory of the unitary executive.

    Ah, yes. The unitary executive theory, a/k/a, the "Nixon Doctrine:"

    Frost: "So ... what ... you're saying is that there are certain situations ... where the president can decide that it's in the best interests of the nation or something, and do something illegal."

    Nixon: "Well, when the president does it that means that it is not illegal."

    Frost: " By definition."

    Nixon: "Exactly, exactly. If the president, for example, approves something because of the national security ... then the president's decision in that instance is one that enables those who carry it out to carry it out without violating a law."

    For Lithwick, that makes things start to click:

    If you watch the Gonzales hearing through this prism (and in this White House, even the bathroom windows look out through that prism), they were a triumph. For six impressive hours, the attorney general embodied the core principles that he is not beholden to Congress, that the Senate has no authority over him, and that he was only there as a favor to them in their funny little fact-finding mission.

    Viewed in that light, Gonzales did exactly what he needed to do yesterday. He took a high, inside pitch to the head for the team (nobody wants to look like a dolt on national television) but hit a massive home run for the notion that at the end of the day, congressional oversight over the executive branch is little more than empty theatre.

    That's a valuable realization to have in "print," and in the "mainstream media" (Does Slate count? I think so. I guess you could argue it doesn't, but I think it does.) And it's no surprise that I'm ready to cheer it. After all, I've been going on about this very point -- the ineffectiveness of Congressional oversight as against the "unitary executive" -- for going on a year now, and I surely was not the first.

    So, my thanks to Dahlia Lithwick, and here's hoping that she'll also consider looking ahead to what happens when the subpoenas are defied and what our options are after that.

    Saturday, April 21, 2007


    via Smart Mobs

    5min is a place to find short video solutions for any practical question and a forum for people wanting to share their knowledge. The vision behind 5min is a very simple one: any solution can be visually explained in no more than 5 minutes. Our aim is to create the first communal Life Videopedia allowing users from all over the globe to contribute their knowledge by sharing visual guides covering arts, business, fashion, sports, health, tech, food, and much more.

    5min's basic philosophy is that everybody is an expert in something. The video era gives us the technological opportunity to share our collective knowledge and gather it onto one platform. This is what 5min aims to be – a platform for users, a platform for creators, a platform for talent and
    anyone that has something to teach.

    In order to bring to life our vision of creating a comprehensive Life Videopedia, 5min gives each creator a private promotional Studio – a space to show his/her skills, and share his/her secrets.

    Users of 5min also benefit from a visual illustration of any solution through a Smart Player. Unlike other video sites on the internet, 5min has created a video player adjusted specifically for the Videopedia vision. While uploading a movie, the creator can enhance it by adding a textual storyboard to the video – helping all of us understand his demonstration.

    The 5min project needs your knowledge! We encourage you to take a camera and be part of our community. If you know other talented people, invite them to contribute as well.

    After all, we all have something to learn from each other. This is the place to start.

    Friday, April 20, 2007

    Daily Show Gonzo Reel

    Alberto “I Do Not Recall” Gonzales
    Crooks & Liars

    Jon Stewart put together a highlight reel from Gonzo's testimony yesterday. My how far his story has evolved since March 13th.

    “After weeks of mock testimony, there you have it. Alberto Gonzales doesn’t know what happened, but he assures you what he doesn’t remember was handled properly.”

    San Francisco Chronicle:

    When told by reporters that Gonzales had replied "I don't recall" 55 times in his first round of questioning, ranking committee Republican Sen. Arlen Specter quipped, "That's an improvement, I'd say."

    Yet Specter still doesn't call for his resignation and Bush is "pleased." How far has the bar been lowered? Geez. Gonzales is either lying or massively incompetent. Either way he shouldn't be Attorney General.

    Thursday, April 19, 2007

    Self-Exemplifying Mendacity

    [Gonzales] acknowledged that he should have been "more precise" in discussing the firings and said that "my misstatements were my mistakes." But he said, "I never sought to mislead or deceive the Congress or the American people." WaPo 4.19.2007
    You did, though. That is exactly what you have been doing. And you sure did a lot of it at the hearing today.

    Here is but one example: Under questioning from Senator Brownback (R-KS), you gave a rundown of the supposed performance reasons behind the firing of each of the eight fired US Attorneys. In most cases, your answers lined up with prior explanations from Justice Department officials, particularly answers given by Principal Associate Deputy Attorney General William Moschella when he testified last month. [Here is the hearing transcript (WaPo); here is the video webcast (Real Player). Do you see, General Judge Gonzales, how the facts don't just slip into the mist anymore?]

    You made a notable admission, though: You said that Bud Cummins was asked to step down just because the department wanted to "put a qualified individual in his place." In other words, there was not a performance reason for his firing. You said that you had failed to indicate that in your January testimony before the Senate because you were "confused," since Cummins had first been asked to resign in June 2006, not December 2006. Apparently you were still confused in February, because you were upset about Deputy Attorney General Paul McNulty's testimony that there had been no performance reasons behind Cummins' firing.

    OK, my point is not to digress on that one example. You know very well, sir, a number of other such examples [here's one]. For each one of them, we the media can write hyperlinked paragraphs like the above, drawing from collections like this and this and this. It really doesn't work anymore to rely on the ol' memory hole.

    So your statement that you never sought to mislead or deceive the Congress or the American people is a wonderfully self-exemplifying utterance. I like self-exemplifying things, and I am always pleased to point them out.

    Counterfactually illustrating the counterfactual. Brilliant. Like Nixon's 'not a crook.'

    Is it that you didn't seek to mislead or deceive, yet ended up doing so through no fault of your own, while seeking to do some other purportedly legitimate thing?

    Let me guess: you were seeking a permanent GOP majority. You maintain that this is a legitimate pursuit because, once achieved, any questions about legitimacy are moot.

    Not that? Is it legitimate because only the GOP is uniquely made up of the serious, mature people in our society who understand the hard facts about the world and how to steer the Ship of State; and that anything necessary to get and maintain the rule of the ship is therefore justified?

    Well then, what? Maybe you were not seeking to play word games, and are merely engaged in a shameful bit of self-exemplifying mendacity.

    Well, here's hoping y'all don't achieve that permanent majority.

    . . .. ... .. . .

    TPM timeline

    Tuesday, April 17, 2007

    Grilling Gonzales: Five Key Lines of Questioning

    Anonymous Liberal via Crooks and Liars

    * * * *

    [H]ere are the five lines of questioning that, in my humble opinion, would be the most fruitful to pursue during Gonzales's hearing. If any staffers for Senators on the Judiciary Committee happen to be reading this, please feel free to borrow these wholesale.

    First Line of Questioning: Authority Issues

    Mr. Gonzales, in your prepared testimony you said that you delegated the task of selecting which U.S. Attorneys to remove to your chief of staff, Kyle Sampson. You said that Mr. Sampson came up with a list of prosecutors who would be asked to leave, and that you eventually signed off on that list. You also testified, and I quote, "Mr. Sampson explained to me the plan to inform the U.S. Attorneys of my decision." Is it your testimony, sir, that the President was not involved in this process, that you made the final call?

    If no: Please explain the extent of the President's involvement. Did he sign off on the final list? Was he given prior notification that these eight U.S. Attorneys would be asked to resign?

    If yes: You are aware, sir, are you not, that by statute, the power to remove U.S. Attorneys belongs to the President, not the Attorney General? (28 U.S.C. 541(c): "Each United States attorney is subject to removal by the President.") As you pointed out in your testimony today, U.S. Attorneys serve at the pleasure of the president; not at the pleasure of the attorney general–and certainly not at the pleasure of Kyle Sampson. By what authority did you feel empowered to make these kind of personnel decisions? To replace presidential appointees? Is it your practice to exercise exclusively presidential powers without getting the president's sign off?

    Follow up: The Albuquerque Journal recently reported that Senator Pete Domenici called you in the Spring of 2006 and told you that he wanted David Iglesias removed from his position as U.S. Attorney for New Mexico. According to the Journal, you refused and told Domenici that you would only do so on orders from the President. Is that account accurate?

    If yes: Why did you require a Presidential order then, but not later? Iglesias was obviously added to the list at some point. What changed? Did the president ever indicate to you or anyone on your staff that he wanted Iglesias removed? Did he give a reason?

    If no: What about that account is inaccurate? Did you speak with Sen. Domenici? Please describe that conversation. What was the substance of Domenici's complaint about Iglesias? How did Iglesias' name come to be on the removal list?

    Second Line of Questioning: Knowledge of Substantive Basis for Dismissals

    Sir, you've testified that you delegated the task of determining which U.S. Attorneys to remove to your former chief of staff, Kyle Sampson, and that you merely signed off on the recommendations he brought to you. When this controversy first erupted, however, the man you delegated this important task to resigned over his handling of this issue. That was over a month ago. Have you personally made any effort to go back and examine the process and reasoning Mr. Sampson used to come up with the final list of eight U.S. Attorneys? Or to put it another way, sir, do you know, as you sit here today, why each of the eight U.S. Attorneys were put on that list?

    If yes: Can you please walk us through the substantive case for dismissing each of these attorneys? Let's start with David Iglesias . . .

    If no: Do you mean to tell me, sir, that you spent weeks preparing for this testimony, but you have no answer to THE most fundamental question on everyone's mind: why were these attorneys removed? How can you sit here and testify that you "firmly believe that these dismissals were appropriate" when you're not even sure how and why the names of these eight prosecutors made it onto your chief of staff's list?

    I understand that you claim to have delegated this task, but didn't you at least have an obligation to educate yourself on the substance of these decisions after the fact, particularly after this erupted into a major controversy? What did you do to satisfy yourself that Kyle Sampson had made the right calls? Are you simply taking on faith the word of a man who was forced to resign over his handling of this matter?

    Follow up:

    In an op-ed in the USA Today last week, you wrote that these prosecutors "simply lost my confidence." Doesn't that statement imply that you were in on the evaluation and decision-making process? What specifically did each of these eight prosecutors do to lose your confidence? Don't you owe them some sort of explanation, particularly in light of the fact that you and your deputies have publicly stated that they were let go for "performance-related" reasons, thereby damaging their professional reputations?

    Third Line of Questioning: Monica Goodling

    One of your senior aides, Monica Goodling, has refused to testify before this committee and has invoked her Fifth Amendment privilege against self-incrimination. Last week, she, like your chief of staff before her, resigned abruptly. How do you reconcile Ms. Goodling's behavior with your claim that nothing inappropriate happened here? Do you have any idea why your senior aide believes her truthful testimony would incriminate her?

    Mr. Gonzales, you are the nation's chief law enforcement officer. Putting that hat on for a moment, imagine you were overseeing an investigation into a large company, and one of its senior officers refused to speak with you, choosing instead to invoke the Fifth Amendment. Under those circumstances, would you simply accept the CEO's assurance that "nothing inappropriate" had happened? Really?

    And wouldn't the DOJ, as a matter of policy, insist that the company fire the uncooperative employee? Why was Monica Goodling allowed to remain on the Justice Department payroll after invoking the Fifth Amendment? Why was she not fired?

    Fourth Line of Questioning: What About the Eighth U.S. Attorney?

    You wrote in your recent op-ed in the USA Today that "it was for reasons related to policy, priorities and management — what have been referred to broadly as 'performance-related' reasons — that seven U.S. attorneys were asked to resign last December."

    Yet as you stated in your testimony today, eight U.S. Attorneys were asked to resign. You even listed them by name. By implication, aren't you conceding here that one U.S. Attorney—who I assume is Bud Cummins of Arkansas—was let go for reasons unrelated to "policy, priorities, and management"?

    If yes: If not for "reasons related to policies, priorities, and management," why exactly was Bud Cummins asked to resign? Who made that decision? Did you sign off on it? Did the President? What was your understanding at the time as to why this decision was made? What is your understanding as you sit here today?

    If no: So Bud Cummins was let go for "performance-related" reasons? What were the reasons? Why did you mention only seven U.S. Attorneys in your op-ed? Why did your Deputy, Paul McNulty, testify that Cummins' dismissal was not for performance-related reasons but rather to make way for Tim Griffin, an associate of Karl Rove?

    Fifth Line of Questioning: Carol Lam and the Appearance of Impropriety

    When Kyle Sampson brought you the list of prosecutors whom he recommended removing, did any of the names stand out at you? You were aware, were you not, that Carol Lam of San Diego was responsible for a number of high-profile public corruption prosecutions involving high-ranking Republican officials such as Congressman Duke Cunningham and the number-three man at the CIA, Dusty Foggo? Were you at all concerned that Lam's name may have been added to this list in order to influence these prosecutions or as some sort of retribution for pursuing them?

    If yes: What did you do to dispell those concerns? What were the actual reasons for Lam's dismissal?

    If no: Didn't it at least occur to you that others–who were not privy to your private deliberations–might suspect that Lam was targeted for dismissal because of her prosecution of Republican politicians? It's not like U.S. Attorneys are routinely replaced in the middle of an administration. And except for perhaps Patrick Fitzgerald, Lam was the most well-known U.S. Attorney in the country. Weren't you at all concerned that removing Lam might reflect poorly on the department? That it would cause reasonable people to suspect that partisan politics was behind her dismissal?

    Shortly after Carol Lam announced her resignation, the chief of the San Diego FBI office, Dan Dzwilewski, was quoted as saying "I guarantee politics is involved.” Is it really your testimony, sir, that it never occurred to you or your staff that asking Lam to leave would create at least the appearance of impropriety? If a high-ranking official in the Justice Department like Dan Dzwilewski was positive that politics led to Lam's removal, can you blame the rest of us for making the same inference?

    (original post here)

    Monday, April 16, 2007

    ABC News: EXCLUSIVE: Gonzales Contradicts His Own Testimony

    ABC News: EXCLUSIVE: Gonzales Contradicts His Own Testimony:

    "'AG [Attorney General] has given additional thought to the San Diego situation and now believes that we should adopt a plan' that would lead to her removal if she 'balks' at immigration reform, Sampson wrote."

    "If she balks on any of the foregoing or otherwise does not perform in a measurable way … remove her," Sampson wrote of Gonzales' suggested plan. "AG then appoints new U.S. [attorney] from outside the office."
    Justice Department official William W. Mercer told congressional investigators on April 11 that he attended a meeting with the attorney general days later to discuss Lam's situation, according to congressional sources. During the meeting, Mercer told Gonzales he was "very concerned" with the problems regarding Lam.

    In an e-mail released in the recent document dump from Capitol Hill, Mercer's calendar includes a notation for a 3 p.m. meeting on June 5 -- four days after Sampson's e-mail -- with the attorney general, Sampson, Mercer and Jeff Taylor. The subject of the meeting is listed as "Immigration Enforcement/San Diego USAO [U.S. attorney's office]."

    Interestingly, in an e-mail six months earlier, Sampson listed Taylor, who was then a top aide to Gonzales, as a possible replacement for Lam's seat. Taylor was later appointed U.S. attorney in Washington.

    ABC News via Think Progress

    Update from NY Times:

    In his interview, Mr. Sampson said under oath that Mr. Gonzales took part in discussions last fall about David C. Iglesias, who was removed as the United States attorney in New Mexico, as well as in a June 2006 meeting that addressed concerns about Carol C. Lam, the United States attorney ousted from her job in San Diego, said Senator Charles E. Schumer, Democrat of New York. Mr. Sampson made similar statements in public testimony to the Judiciary Committee on March 29, but appeared to offer more specifics in the interview.

    Mr. Gonzales said in an interview with NBC News on March 26 that he did not recall a White House meeting held in the fall. White House officials confirmed the meeting and that President Bush raised concerns at it about a lack of aggressive voter-fraud investigations in three states, including New Mexico.

    “I don’t remember that conversation,” Mr. Gonzales said in the NBC interview. “During the process there may have been other conversations about specifically about the performance of U.S. attorneys. But I wasn’t involved in the deliberations as to whether or not a particular United States attorney should or should not be asked to resign.”

    Mr. Schumer said Monday that Mr. Sampson recalled that in early March, Mr. Gonzales had told him about the White House conversation — the first time, Mr. Sampson said, that he learned of the president’s concern. Mr. Sampson’s lawyer, Bradford A. Berenson, declined to comment on the interview.

    According to Mr. Schumer, Mr. Sampson said he believed Mr. Gonzales had attended a June 2006 meeting in which Ms. Lam’s removal was discussed. Another official, William W. Mercer, the acting associate attorney general, recalled with greater certainty that Mr. Gonzales was at the meeting, Mr. Schumer said.

    Conservatives to Bush: Fire Gonzales | TIME

    via Think Progress

    Conservatives to Bush: Fire Gonzales TIME:

    "In what could prove an embarrassing new setback for embattled Attorney General Alberto Gonzales on the eve of his testimony before the Senate Judiciary Committee, a group of influential conservatives and longtime Bush supporters has written a letter to the White House to call for his resignation. "

    The two-page letter, written on stationery of the American Freedom Agenda, a recently formed body designed to promote conservative legal principles, is blunt. Addressed to both Bush and Gonzales, it goes well beyond the U.S. attorneys controversy and details other alleged failings by Gonzales. "Mr. Gonzales has presided over an unprecedented crippling of the Constitution's time-honored checks and balances," it declares. "He has brought rule of law into disrepute, and debased honesty as the coin of the realm." Alluding to ongoing scandal, it notes: "He has engendered the suspicion that partisan politics trumps evenhanded law enforcement in the Department of Justice."

    The letter concludes by saying, "Attorney General Gonzales has proven an unsuitable steward of the law and should resign for the good of the country... The President should accept the resignation, and set a standard to which the wise and honest might repair in nominating a successor..." It is the first public demand by a group of conservatives for Gonzales' firing. Signatories to the letter include Bruce Fein, a former senior official in the Reagan Justice Department, who has worked frequently with current Administration and the Republican National Committee to promote Bush's court nominees; David Keene, chairman of the influential American Conservative Union, one of the nation's oldest and largest grassroots conservative groups, Richard Viguerie, a well-known GOP direct mail expert and fundraiser, Bob Barr, the former Republican congressman from Georgia and free speech advocate, as well as John Whitehead, head of the Rutherford Institute, a conservative non-forit active in fighting for what it calls religious freedoms.

    read the rest...

    Sunday, April 15, 2007

    Spoliation of Evidence

    When a party is once found to be fabricating, or suppressing, documents, the natural, indeed the inevitable, conclusion is that he has something to conceal, and is conscious of guilt.
    --Judge Learned Hand (upon finding that a ship's log had been "dressed up to excuse the ship's faults"), Warner Barnes & Co. v. Kokosai Kisen Kabushiki Kaisha, 102 F.2d 450, 453 (2d Cir. 1939).

    Saturday, April 14, 2007


    Justice Department's Independence 'Shattered,' Says Former DOJ Attorney

    by Tony Mauro
    Legal Times via TPM

    Since the day he arrived at the Department of Justice in February 2005, Attorney General Alberto Gonzales has "shattered" the department's tradition of independence and politicized its operation more than any other attorney general in more than 30 years.

    So says Daniel Metcalfe, a senior attorney at the department who retired in January, before the current controversy over the firing of U.S. Attorneys erupted. He views the episode as an "awful embarrassment" that has only worsened already-low morale at the department, especially among career attorneys.

    Metcalfe, 55, served most recently as director of the Office of Information and Privacy. He co-founded the office in 1981 with Richard Huff. But his career at the department began in 1971. He started as an intern, working at the department full-time while attending law school at George Washington University. Later, he worked as a trial attorney in DOJ's Civil Division before founding OIP.

    At that office, Metcalfe oversaw Freedom of Information Act policy throughout the executive branch. He gained a reputation as a principled official who would adhere to the policies of whichever administration he served, but not at the expense of following the letter and spirit of FOIA. "Dan earned great respect for the policies he helped form, even though they sometimes put him at odds with access advocates," says Paul McMasters, the recently retired First Amendment ombudsman at the Freedom Forum. Metcalfe plans to begin teaching law in coming months.

    In interviews in person and by e-mail with Legal Times Supreme Court correspondent Tony Mauro, Metcalfe recently detailed his views about Gonzales and the politicization of the department, as well as information policy. The transcript follows.

    Friday, April 13, 2007

    Lee Iacocca: Throw the Bums Out!

    Borders via C&L

    Had Enough?
    Am I the only guy in this country who's fed up with what's happening? Where the hell is our outrage? We should be screaming bloody murder. We've got a gang of clueless bozos steering our ship of state right over a cliff, we've got corporate gangsters stealing us blind, and we can't even clean up after a hurricane much less build a hybrid car. But instead of getting mad, everyone sits around and nods their heads when the politicians say, "Stay the course."

    Stay the course? You've got to be kidding. This is America, not the damned Titanic. I'll give you a sound bite: Throw the bums out!

    You might think I'm getting senile, that I've gone off my rocker, and maybe I have. But someone has to speak up. I hardly recognize this country anymore. The President of the United States is given a free pass to ignore the Constitution, tap our phones, and lead us to war on a pack of lies. Congress responds to record deficits by passing a huge tax cut for the wealthy (thanks, but I don't need it). The most famous business leaders are not the innovators but the guys in handcuffs. While we're fiddling in Iraq, the Middle East is burning and nobody seems to know what to do. And the press is waving pom-poms instead of asking hard questions. That's not the promise of America my parents and yours traveled across the ocean for. I've had enough. How about you?

    I'll go a step further. You can't call yourself a patriot if you're not outraged. This is a fight I'm ready and willing to have.

    My friends tell me to calm down. They say, "Lee, you're eighty-two years old. Leave the rage to the young people." I'd love to—as soon as I can pry them away from their iPods for five seconds and get them to pay attention. I'm going to speak up because it's my patriotic duty. I think people will listen to me. They say I have a reputation as a straight shooter. So I'll tell you how I see it, and it's not pretty, but at least it's real. I'm hoping to strike a nerve in those young folks who say they don't vote because they don't trust politicians to represent their interests. Hey, America, wake up. These guys work for us.

    Who Are These Guys, Anyway?
    Why are we in this mess? How did we end up with this crowd in Washington? Well, we voted for them—or at least some of us did. But I'll tell you what we didn't do. We didn't agree to suspend the Constitution. We didn't agree to stop asking questions or demanding answers. Some of us are sick and tired of people who call free speech treason. Where I come from that's a dictatorship, not a democracy.

    And don't tell me it's all the fault of right-wing Republicans or liberal Democrats. That's an intellectually lazy argument, and it's part of the reason we're in this stew. We're not just a nation of factions. We're a people. We share common principles and ideals. And we rise and fall together.

    Where are the voices of leaders who can inspire us to action and make us stand taller? What happened to the strong and resolute party of Lincoln? What happened to the courageous, populist party of FDR and Truman? There was a time in this country when the voices of great leaders lifted us up and made us want to do better. Where have all the leaders gone?

    more ...

    Excerpted from Where Have All the Leaders Gone?. Copyright © 2007 by Lee Iacocca. All rights reserved.

    The Bush administration's terrible luck with finding documents

    The Bush administration's terrible luck with finding documents

    (Updated below - Update II - Update III - Update IV - Update V - Update VI)

    I feel -- in this vaguely intuitive sort of way -- as though there is some kind of a pattern buried within this set of facts, but as much as I search, I just can't quite figure out what it might be:

    New York Times, today:

    Political advisers to President Bush may have improperly used their Republican National Committee e-mail accounts to conduct official government business, and some communications that are required to be preserved under federal law may be lost as a result, White House officials said Wednesday. . .

    As a result, Mr. Stanzel said, "some official e-mails have potentially been lost." He said Mr. Bush had told the White House counsel's office "to do everything practical to retrieve potentially lost messages."

    The Politico, March 24, 2007:
    In DOJ documents that were publicly posted by the House Judiciary Committee, there is a gap from mid-November to early December in e-mails and other memos, which was a critical period as the White House and Justice Department reviewed, then approved, which U.S. attorneys would be fired while also developing a political and communications strategy for countering any fallout from the firings.

    Newsweek, February 28, 2007:
    A federal judge ruled today that suspected Al Qaeda operative Jose Padilla is mentally competent. . . . But the ruling by U.S. Judge Marcia Cooke in Miami leaves open what may be more intriguing questions than those surrounding the defendant's mental health: what happened to a crucial video recording of Padilla being interrogated in a U.S. military brig that has mysteriously disappeared?

    The disclosure that the Pentagon had lost a potentially important piece of evidence in one of the U.S. government's highest-profile terrorism cases was met with claims of incredulity by some defense lawyers and human-rights groups monitoring the case. "This is the kind of thing you hear when you're litigating cases in Egypt or Morocco or Karachi," said John Sifton, a lawyer with Human Rights Watch, one of a number of groups that has criticized the U.S. government's treatment of Padilla. "It is simply not credible that they would have lost this tape. The administration has shown repeatedly they are more interested in covering up abuses than getting to the bottom of whether people were abused."

    Alicia Valle, a spokeswoman for the U.S. Attorney's Office in Miama, said in an e-mail to NEWSWEEK that the missing DVD was "of the last interrogation of Padilla while in military custody." She further added that a lawyer for DIA had advised the court "that an exhaustive search was conducted but the [DVD] could not be located."

    NPR, June 24, 2004:

    Key documents are missing from the batch of newly declassified documents the White House released this week on its policies on torture and the treatment of prisoners, critics say. Absent are any memos to and from the FBI and CIA and any documents dated after April 2003. No documents address the State Department's concern over the Bush administration's interpretation of the Geneva Conventions.

    USA Today, May 24, 2004:

    The Pentagon sought Sunday to explain why some 2,000 pages were missing from a congressional copy of a classified report detailing the alleged acts of abuse by soldiers against Iraqi inmates at Abu Ghraib prison. . . . .

    [Pentagon spokesman Lawrence Di Rita] was responding to a Time magazine report Sunday that about 2,000 of the report's 6,000 pages submitted to the Senate Armed Services Committee were missing. The report by Maj. Gen. Antonio Taguba consists of a declassified summary and about 6,000 pages of classified annexes, including statements from witnesses, prison guards and military intelligence officials.

    Associated Press, September 5, 2004:
    Documents that should have been written to explain gaps in President Bush's Texas Air National Guard service are missing from the military records released about his service in 1972 and 1973, according to regulations and outside experts.

    For example, Air National Guard regulations at the time required commanders to write an investigative report for the Air Force when Bush missed his annual medical exam in 1972. The regulations also required commanders to confirm in writing that Bush received counseling after missing five months of drills.

    No such records have been made public and the government told The Associated Press in response to a Freedom of Information Act lawsuit that it has released all records it can find.

    And that is to say nothing of all of the extraordinary and unprecedented steps taken by the administration to justify the concealment of documents and other information -- efforts which, when successful, have made it unnecessary to claim that the documents were lost. But don't worry; it's all to protect us, all for our own good. There is simply no reason for us to know what our Leaders are doing.

    UPDATE: Newsweek, March 1, 2006:
    [Federal Emergency Management Agency Michael] Brown's comments about the president surfaced in a transcript of an Aug. 29, 2005, videoconference call produced by Bush administration officials today after they initially told Congress that no such document existed. . . .

    Administration and congressional officials said that the administration provided congressional investigators earlier this year with official transcripts of the daily noon FEMA conference calls conducted before, during and after Katrina. But the administration initially told Congress that the transcript for the Aug. 29 call -- the call congressional investigators were most curious about, given that it occurred as the hurricane was actually battering the Gulf Coast—did not exist, with officials initially telling Capitol Hill that someone at FEMA or Homeland Security forgot to push the button on a tape recorder.

    "Everybody has been looking for that transcript," former FEMA chief Michael Brown said Wednesday.

    A White House official unexpectedly e-mailed the transcript to NEWSWEEK earlier today Wednesday morning -- initially without explaining that it was the missing transcript. Two officials familiar with congressional investigations said that the document was turned over to Capitol Hill investigators Tuesday night. Administration officials told both Congress and NEWSWEEK that FEMA officials in Atlanta had taped the Aug. 29 conference call by aiming a video camera at a TV screen rather than following the usual recording procedure. The videotape was subsequently discovered and transcribed.

    While the newly discovered transcript does provide new evidence of initial presidential engagement in the Katrina crisis and of conflicting information about the state of New Orleans levees on Aug. 29, it also exposes some contradictions in previous administration explanations about the role of the White House and top officials in handling the crisis.

    I suppose the defense for Bush followers who want to claim that all of this is completely innocent is "extreme ineptitude."

    UPDATE II: Via email, reader SB adds this very recent incident to the list -- Washington Post, April 3, 2007:
    A secret FBI intelligence unit helped detain a group of war protesters in a downtown Washington parking garage in April 2002 and interrogated some of them on videotape about their political and religious beliefs, newly uncovered documents and interviews show.

    For years, law enforcement authorities suggested it never happened. The FBI and D.C. police said they had no records of such an incident. And police told a federal court that no FBI agents were present when officers arrested more than 20 protesters that afternoon for trespassing; police viewed them as suspicious for milling around the parking garage entrance.

    But a civil lawsuit, filed by the protesters, recently unearthed D.C. police logs that confirm the FBI's role in the incident.

    Every story uses almost verbtaim language, because the conduct they are describing is, in each case, almost exactly the same.

    UPDATE III: New York Sun, February 2, 2006:
    The White House failed to archive some e-mails in accordance with normal procedures in 2003, according to a letter from a special prosecutor investigating the leak of a CIA operative's identity.

    The prosecutor, Patrick Fitzgerald, disclosed the failure last week to defense attorneys for a former White House official, I. Lewis Libby, who is facing perjury and obstruction of justice charges in the probe.

    "We advise you that we have learned that not all e-mail of the Office of Vice President and the Executive Office of the President for certain time periods in 2003 was preserved through the normal archiving process on the White House computer system," Mr. Fitzgerald wrote in the January 23 letter, which was filed in federal court on Tuesday.

    Associated Press, February 24, 2006:
    The defense was told that the White House had recently located and turned over about 250 pages of e-mails from the vice president's office. Fitzgerald, in a letter last month to the defense, had cautioned Libby's lawyers that some e-mails might be missing because the White House's archiving system had failed.
    The White House's continuous and repeated failure to preserve e-mail communications in accordance with the law has been publicly discussed for some time now, and has arisen in multiple contexts. This is the discussion which Wolf Blitzer had on CNN with Jeffrey Toobin -- on February 1, 2006 -- about the Fitzgerald letter noting those missing emails (h/t Media Matters):
    BLITZER: Let's get some legal analysis now on this new development. Joining us on the phone is our senior legal analyst Jeffrey Toobin. Potentially, how significant or insignificant is this development?

    JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST: I think you have to say it raises questions. Why were these documents destroyed outside the normal course? Who knew about it? Who ordered it? What kind of documents were there? All these questions may have entirely innocent answers, but we don't know what any of the answers are at this point.

    BLITZER: Because when I hear a story like this, it hearkens back, I remember, of course, some of those missing tapes during Watergate and the Nixon White House that evidence may have been destroyed. This may be totally, totally overreaching. There may be a simple explanation, but the fact that the prosecutor writes this letter saying what happened to this -- to these e-mails, that raises certain questions.

    TOOBIN: And certainly the Iran-Contra affair was based almost entirely on electronic messages, so-called prof notes sent between Oliver North and colleagues. They have been crucial evidence in all White House investigations. What happened to them? A lot of things get destroyed in the normal course of business. Why were the normal procedures not followed? As you point out, could be completely innocent. But we just don't know.

    BLITZER: How normal is it for e-mail to be destroyed in the normal course of business over at the White House?

    TOOBIN: A question I don't have the answer to, but presumably the special prosecutor is going to be looking into that question right now.

    BLITZER: Jeff Toobin, thanks very much.

    The administration -- which has made its contempt for all forms of oversight as clear as can be, and which has engaged in every possible effort to block scrutiny of its conduct -- obviously simply decided that, despite all of these controversies, and despite their legal obligations, they would keep ensuring that highly relevant e-mails continued to disappear, or would simply break the law by using e-mail systems that did not preserve their communications, including communications relating to ongoing investigations. What other reasonable conclusion is possible in light of these facts?

    UPDATE IV: Anonymous Liberal notes the perspective which any litigator (assuming they are speaking honestly, rather than with the intent to defend the administration) would have of this matter:
    As an attorney who deals with subpoenas and requests for electronic documents on a regular basis, I can tell you that if a private entity--particularly one subject to legally mandated record keeping requirements--were to inform government investigators seeking such documents that they had been "mishandled" and were now "lost," that entity would immediately find itself in a world of hurt and would be lucky if it survived the aftermath.

    No amount of talking would be enough to convince the authorities that there was an innocent explanation for the missing documents. They would be absolutely convinced that the "mishandled" documents were intentionally destroyed in order to cover up wrongdoing.

    And that is particularly true if -- as is true for the Bush administration -- the party claiming to have "lost" or "mishandled" such key evidence had a long history of making such claims repeatedly with the effect of blocking investigations. And the presumption of corrupt intent would be stronger still if, as in the case of the Bush administration, one of the party's highest officials was recently found guilty of multiple counts of obstruction of justice and false statements for lying to FBI investigators and to a federal grand jury.

    A.L. also notes that as a result of the "missing" emails in the Plame matter, "the White House's dual email system was almost surely the subject of intense discussion in early 2004." Thus, efforts to circumvent that system by deleting other emails and using RNC email systems were almost surely intentional.

    In fact, the D.C. Circuit Court of Appeals ruled long ago, in the 1994 case of Armstrong v. Executive Office of the President (summary here), that the White House was required by the Federal Records Act to preserve all of its communications via e-mail (other than "presidential records"). And this April 7, 2000 article from the Christian Science Monitor -- detailing the Clinton White House's extensive efforts to preserve all -- demonstrates that the legal obligation to preserve White House emails has been a much-discussed topic in Washington for years:

    In fact, whenever a White House staffer clicks "send," a message reminds them that a copy of their missive is being sent to records management.

    When it comes to saving e-mails, the White House is held to a higher standard than the private sector, and even Congress.

    Companies that have a policy of saving e-mails usually do so only for three to six months, according to records-management consultants. Many companies consider them the same as phone calls, and don't archive them unless they are equal in weight to a written communication.

    But the White House is different. It saves its records for posterity. After President Clinton vacates his office next January, at least 30 million stored e-mails will be deposited with the National Archives, an unfathomable mountain of data ranging from "how about lunch?" to speech drafts, to perhaps more juicy communications. . . .

    The White House, on the other hand, installed an e-mail archiving system in July 1994, after a court ruled that electronic records must be preserved in the same way as federal records. It was such a novel concept at the time that it had to be custom-built.

    Rove and company were well-aware of their legal obligations to preserve their communications, and were equally aware that using their White House emails to communicate would result in such preservation. This lengthy record by the Bush administration of finding ways to "lose" key documents relevant to investigations and judicial proceedings ought to leave little doubt about the corrupt intent motivating this behavior.

    UPDATE V: The Washington Post, December 18, 2003 (h/t AJ):
    Hundreds of videotapes that federal prison officials had claimed were destroyed show that foreign nationals held at a New York detention facility after the Sept. 11, 2001, attacks were victims of physical and verbal abuse by guards, the Justice Department's inspector general said yesterday. . .

    A report issued by Fine in June found "a pattern of physical and verbal abuse" at the Brooklyn detention facility's Special Housing Unit, where 84 of the men picked up after the Sept. 11 attacks were held. But investigators said then that firm conclusions on abuse were impossible in many cases because of the lack of videotapes, which prison administrators said at the time had been destroyed.

    A federal dragnet after the Sept. 11 attacks resulted in the detention of more than 1,200 foreign nationals, including 762 people who were the focus of Fine's original probe. Most were of Arab or South Asian descent and were held on immigration violations under a directive from Attorney General John D. Ashcroft while authorities attempted to determine whether they were connected to the attack or to terrorist groups. None was ever charged with terrorism-related crimes, however.

    Many of the incidents of abuse were confirmed when investigators viewed more than 300 videotapes recorded from October to November 2001 that showed detainees being moved around the facility and within their cells, investigators said. . . .

    The tapes eventually located in August had not been included on inventory sheets provided by the prison and were held in a storage room that also had not been disclosed to investigators, the report said. Many tapes from the period are still missing, and there are unexplained gaps the ones that were found, the report shows.

    Incidents like this get reported piecemeal, in isolation, by our national press, but the clear implications are almost never realized and/or explained.

    This administration does not believe it is subject to oversight or the rule of law. They hate investigations and scrutiny and do everything possible -- legal and illegal -- to block them. Let us emphasize that Lewis Libby -- Dick Cheney's most trusted advisor who, after Bush, Cheney and Rove, was the most powerful figure in the White House and one of the most powerful individuals in our entire government for five years -- was just found guilty of multiple counts of perjury and obstruction of justice: first by a Republican, Bush-appointed prosecutor who indicted him, then by 12 carefully selected American citizens who were unanimous about his guilt in attempting to thwart a federal investigation into the administration's conduct.

    And when that happened, the only debate it prompted among Bush followers was whether Libby should be pardoned now or later, with most demanding a pardon immediately. This is what they do and who they are. They affirmatively believe in lying and destroying evidence and obstructing investigations in order to conceal their behavior. They believe that anything they do is, by definition, good and right, and therefore there is never anything wrong with attempts to hide it or even misleading the country about what they did.

    It should not be necessary to explain why those are profound problems, and why the media's reporting on these matters ought to reflect just how serious these scandals are.

    UPDATE VI: On CNN tonight, Jack Cafferty took this post and used it as the basis for his commentary, and did a great job with it, featuring the key parts of virtually every incident listed here. C&L has the video here.

    Thursday, April 05, 2007

    mickey & bob: reality's liberal bias

    Mickey & Bob discussing David Brooks, "No U Turns," on the demise of Goldwater/Reagan conservatism.


    Mickey: [introducing subject, summarizing article]: ... the old paradigm doesn't work anymore, and the new paradigm is something like ...

    Bob: Something like Liberalism. ... [snip] He's saying Republicans need to move to the left. It really wouldn't necessarily take 800 words. Unless you're trying to almost obscure the fact that that's what you're saying.


    Mickey: He's saying Conservatives have to deal with a new level of complexity... A PC, a Personal Computer is a very complex thing. But once we have that level of complexity ... it's a platform for an unprecedented exercise in freedom and liberty, in terms of blogging and all the things it enables people to do. And [Brooks] is saying that we should maybe see government like that. ... [snip] ... We need a sort of new government, in which the government is there, it's omnipresent, you can't get around it. There's a web of government; and the question is, is that going to be a government that's going to enable freedom or hamper freedom? The problem with that is ... I don't think you get much argument in America ... that we want it to be a platform for freedom. So everybody converges on the center.

    More made up stuff by Orrin Hatch and others

    via Truthout

    The 38-year-old [(Arkansas) U.S. Attorney] Griffin claims on his official Web site that he prosecuted 40 criminal cases while at Ft. Campbell, where he was stationed from September 2005 to May 2006. But Army authorities say Ft. Campbell's records show Griffin only serving as assistant trial counsel on three cases, none of which went to trial.

    Griffin didn't agree to be interviewed about his claim of 40 criminal prosecutions versus the Army's confirmation of three cases, all of which were settled as plea bargains. But Cherith Beck, a Griffin spokeswoman, suggested that Griffin's higher number might refer to all cases he worked on in any capacity.

    "Just wanted to clarify, make sure you had an understanding that prosecuted means it's a case he handled while he was there; it doesn't mean that it went to trial necessarily," Beck said. "Prosecuted means he handled those cases in one form or another."

    Griffin's prosecutorial experience at Ft. Campbell is important in evaluating Griffin's fitness to serve as the top federal prosecutor in the Eastern District of Arkansas since the bulk of Griffin's legal career has been in political operations, such as opposition research on Democrats or work as a Republican staffer on Capitol Hill.

    Seeking to burnish Griffin's prosecutorial credentials, his backers also have cited a letter of recommendation dated Aug. 13, 2002, from then-Little Rock U.S. Attorney H.E. "Bud" Cummins III praising Griffin's nine months of work as one of his assistants.

    On NBC's "Meet the Press" last Sunday, Sen. Orrin Hatch of Utah, a senior Republican on the Senate Judiciary Committee, hailed Griffin as "a person with prosecutorial experience who the attorney - who the U.S. Attorney who was going to be removed said was his right-hand man and one of the best prosecutors he had."

    In an e-mail to me, however, Cummins disputed Hatch's characterization of the letter.

    "I don't see here where I referred to him as my 'right arm,'" Cummins said. "I don't know where they are getting that. Tim [Griffin] worked hard and did a good job organizing the launch of what became a very successful PSN [Project Safe Neighborhoods] program. But the great success was at least equally due, if not a great deal more, to the efforts of virtually every prosecutor in the office after his departure."

    read the whole thing it details several questionable items on Griffen's bio.

    The 'D' Word


    I become frightened sometimes when I contemplate just how big a doofus Sen. Orrin Hatch (R-UT) appears to be.

    Yesterday I flagged the story, which a slew of others have already noted, about how Orrin Hatch completely made up a string of 'facts' about fired prosecutor Carol Lam. (I think Rachel Maddow was the first to flag Hatch's ridiculous whopper.)

    What Hatch said on Meet the Press this Sunday was this ...

    Take Carol Lam, for instance. Carol Lam was raised on your program, Tim, by Schumer. Carol Lam, it's amazing to me she wasn't fired earlier because for three years members of the Congress had complained that there had been all kinds of border patrol capture of these people but hardly any prosecutions. She was a former law professor, no prosecutorial experience, and the former campaign manager in Southern California for Clinton, and they're trying to say that this administration appoints people politically? Of course they do. That's what these positions are. But politically they've appointed people who have been approved by the Justice Department--the Judiciary Committee, in most cases, who have served well, are strong people and, and, frankly, these, these seven were really mishandled.

    Now, this was a pretty powerful indictment -- except that Lam has never been a law professor, was an Assistant US Attorney for 14+ years and, of course, was never a campaign manager for Bill Clinton. Except for that, well... anyway, you get the idea.

    So now, in response to the windstorm of chatter about his brazen falsehoods, Hatch has released a statement in which he says ...

    My comments about Carol Lam's record as a U.S. Attorney were accurate, but I misspoke when making the point of discussing politically connected U.S. Attorneys. I accidentally used her name, instead of her predecessor, Alan Bersin, who was appointed by President Bill Clinton.

    This is kind of classic on a couple levels. My comments were accurate, just not the facts I used in the comments.

    But that's only the half of it.

    The simple fact is that Hatch's explanation makes no sense. He's saying: In the course of attacking Carol Lam I inadvertantly used Lam's name when describing facts that may or may not apply to, Alan Bersin, a guy Bill Clinton appointed to the same office back in the mid-1990s.

    Does that make any sense at all? Of course not.

    Now, just before starting this post I was chatting with one of my colleagues here at TPM, trying to figure out what the hell Hatch's whopper was all about. My take was that the pattern of facts is simply too ridiculous to be a lie in the narrow and specific sense of a knowing falsehood. I think it's far more likely that this was something some talk radio hound or blogger either intentionally or inadvertantly mixed up. Hatch heard it and since he just ad libs through this scandal without having any idea what he's talking about he just decided to repeat it even though it's transparently ridiculous on its face.

    Think about it: different presidents are more or less political in their US Attorney appointments. But no president appoints someone who's served as a campaign manager for a key political opponent. And certainly not this president.

    The whole episode is just another example of Hatch's complete indifference to acquainting himself with even the most basic facts of the US Attorney Purge story. On the whole saga, he doesn't even rise to the level of being a hack. He's simply a joke.

    Late Update
    : TPM Reader CK disagrees ...

    As a lawyer, my take on Hatch on the Lam episode as on other matters where I have observed him (espeically the Anita Hill/Clarence Thomas hearings, but you may be too young to remember those) is that he is a very talented, very cynical, very dangerous trial lawyer. He has gotten his disinformation out there, he has a statement that he can claim is a correction (when it is not,as you point out), and so the disinformation stays out there, muddying up the waters as much as it can. That's what (some) lawyers do when they have no case -- they muddy the waters up and try to lead the triers of fact (in this case, the public) down irrelevant pathways. We saw this most recently with Lewis Libby's lawyer, too. He did a good enough job that no one was sure where the jury was going to go, even though the factual case against Libby was overwhelming.

    Even Later Update: An anonymous TPM Reader thinks he's found where Hatch got his line. This reader points to the March 28th National Review article on the US Attorney story by Byron York. In that piece York writes ...

    In 1993, Bill Clinton replaced the Republican U.S. attorney, a career prosecutor and veteran of 20 years in the Justice Department, with Alan Bersin, a law professor who had no prosecutorial experience but who had been a classmate of Clinton’s at Yale and head of the Clinton campaign in San Diego. (Bersin pledged to vigorously pursue Clinton priorities like environmental law.) In March 1998, Bersin resigned to become head of the San Diego school system.

    So Hatch or someone who works for him glanced at York's article and caught this snippet and figured it might apply to Lam. Good enough for government work, I guess you might say.

    -- Josh Marshall

    [Rare editorial comment: the linked Byron York article is the very same one sent to me by my staunch GOP friend, as chronicled in this post.]

    Another take on the Hatchet Job


    Wednesday, April 04, 2007

    An open letter to Orrin Hatch, etc.

    You don't call, you don't write...orrin hatch

    I've just about exhausted myself trying to get someone in your office to call me back this week. Please apologize to your adorable receptionist on my behalf - the poor man now gets audibly exasperated as soon as I say "hello".

    What I'd like to talk with you about is very simple: on NBC's Meet the Press this past Sunday, you said this about Carol Lam, the US Attorney for San Diego who was fired by the Justice Department in December:

    "She was a former law professor, no prosecutorial experience, and the former campaign manager in Southern California for Clinton"

    I checked the transcript against the video, and it's clear to me that you weren't misquoted.

    Here's my question for you or your staff: what in the Lord's name are you talking about?

    Here at Air America, we called John Emerson, who managed Clinton's California campaign in '92 and again in '96 to ask if Carol Lam had been the "campaign manager in Southern California for Clinton" - you might have thought we'd asked him if the sky was green.

    First of all, uh, NO, she wasn't.

    And second, Carol Lam was an Assistant US Attorney at the time of Clinton's campaigns, and she therefore couldn't have also been a campaign manager for any presidential candidate without violating the (ironically-named) Hatch Act, which restricts political activity by federal government employees.

    Then we called a source close to Carol Lam in California, who expressed utter bewilderment at what old Orrin said on Meet the Press.

    The source confirmed for us publicly-available documents about Lam's career which indicate that she is not a law professor, she's "been a federal prosecutor for nearly 18 years and [has] never been a fundraiser for any president".

    Senator Hatch, what's going on here?

    Were you thinking of someone else? You seemed under the weather on Sunday -- did you maybe fall asleep and wake up in the middle of what you thought was a totally different interview - an interview about someone who DID work for Clinton's campaign?

    Don't you want to apologize and set the record straight? Won't you be embarrassed if Meet the Press has to run a correction about something you said, that you won't retract?
    Or do you have secret information that no one else has, that will back up your off-the-wall claims about Carol Lam?

    Senator Hatch, call me.

    My voicemails have filled up the systems on all of your press guys' phones, so I know you know how to reach me.

    When you call me back, I'll give you all the time you want on my radio show to either explain your top-secret Carol Lam information, or to apologize for your utterly outrageous, inexplicable smear.

    I know it's difficult to have to defend the Bush Administration for their political purge of the US Attorneys -- but that doesn't mean you get to make stuff up about the US attorneys that you think will make it seem like they deserved what they got.

    Come on, come on, Senator Hatch. I caught you on this one. Return my calls -- I'll help you make it all better.

    All best wishes,

    Rachel Maddow

    Host, "The Rachel Maddow Show"
    Air America Radio6-8PM Eastern


    Backing up a bit on the transcript (worth reading) to put the Carol Lam comments in context:


    SEN. MARK PRYOR (D-AR): The truth is, I was lied to. Because I was told that the attorney general—and he not only said it to me, he said it to the Senate Judiciary Committee, and he said it to the world, the attorney general wanted a Senate-confirmed U.S. attorney in every slot. That is absolutely not true in Arkansas based on this e-mail from the Justice Department.
    When the attorney general lies to a United States senator, I think it’s time for that attorney general to go.

    (End videotape)

    MR. RUSSERT: Senator Hatch, that’s one of your colleagues saying he was lied to.

    SEN. HATCH: Well, I don’t think he was. I mean, in the case—in that particular case, they—you know, it’s no secret the White House wanted Griffin put in there, a person with prosecutorial experience who the attorney—who the U.S. attorney who was going to be removed said was his right-hand man and one of the best prosecutors he had. The fact of the matter is they wanted to appoint him as an interim U.S. attorney. And by the way, that is—that is done all the time. Interims are appointed while they wait to get a, a permanent vote by the Senate, and, frankly, the question here is whether an interim is appointed by the courts or by the, the Justice Department itself. And frankly, you know, I don’t think—I don’t think anybody should’ve said that the attorney general lied to them. On...

    MR. RUSSERT: (To Senator Leahy) You’re nodding.

    SEN. HATCH: On that issue. Certainly not on that issue.

    MR. RUSSERT: (To Senator Leahy) You’re shaking your head, Senator.

    SEN. LEAHY: Well, you almost—you’re almost thinking, the answer—I love Orrin Hatch, an old buddy—but it’s almost like he’s aware of the fact that today’s April 1st. This is not what happened at all. It is not the case of putting someone in with the idea of them having a confirmation. They were very cleverly using an obscure piece of the Patriot Act that was snuck in by the administration, the last Patriot Act. They were using that to suddenly replace all these U.S. attorneys, planning never to go to the Senate for confirmation. It was very clear from the Sampson testimony, very clear from the e-mails we’ve received that’s exactly what they wanted to do. In fact, it is remarkable that, when that came to light, when the United States Senate, by a vote of 94-to-2, we repealed that, even though the White House was opposed to us repealing it, and the House representatives by about a 4-to-1 margin did. How many times, Tim, have you seen, in this city, that kind of bipartisan rejection of an administration’s policy? I think most people are so offended by what has happened, most people feel that the attorney general has not been truthful, and again, that is why I really—I don’t want any more of these closed door meetings, closed door briefings. I want it under oath, before the public. Let both Republican and Democratic senators ask the questions, let the truth come out.

    MR. RUSSERT: But if the...

    SEN. HATCH: (Unintelligible).

    MR. RUSSERT: One second, Senator Hatch.

    SEN. HATCH: Yeah.

    MR. RUSSERT: But if the president says, “I’m sorry, Senator Leahy, this is executive privilege. I need honest, unfettered advice from my staff. Karl Rove was not confirmed by the U.S. Senate. He’s not going before your committee. You can do whatever you want, he’s not going,” what do you do?

    SEN. LEAHY: Well, first, the president hasn’t claimed executive privilege yet, and, according to the testimony, the president was not involved directly in these things, so it wasn’t a question of advice going to the president. It was more of a, a question of orders coming from Karl Rove, Harriet Miers to the attorney general, who seems to act as though he’s still a member of the White House staff instead of being of the attorney general of the United States. Entirely different thing. I, I think the most important thing, especially in light of the fact that in two years we’re going to have a new president, new attorney general, let’s establish exactly what went wrong here. We know a lot of things went wrong. With the idea that at least with the next president, whoever the next president might be, won’t make these mistakes again.

    MR. RUSSERT: But what if Mr. Rove refuses to come before your committee?

    SEN. LEAHY: Well, let’s see if that happens.

    MR. RUSSERT: Do you believe he will?

    SEN. LEAHY: Let’s see if that happens.

    MR. RUSSERT: Do you have indications he might?

    SEN. LEAHY: No, I don’t. No, in fact, they’ve given us a take it or leave it. They said we’ll—the White House said we’ll only allow a discussion behind closed doors with no transcript and a limited agenda and not under oath. Everybody knows that’s a nonstarter. There’ve been so many misstatements back and forth by people within the administration, I want it in public under oath. I want both Republicans and Democrats to be able to ask questions.

    MR. RUSSERT: Senator Hatch, here’s part of the problem. There was a letter written by the acting assistant attorney general to Senator Schumer, and it said this about the situation in Arkansas: “The Department of Justice is not aware of anyone lobbying for Mr. [Tim] Griffin’s appointment.” That’s the U.S. attorney in Arkansas. “The Department is not aware of Karl Rove playing any role in the decision to appoint Mr. Griffin.” And then e-mail emerged from Kyle Sampson, which said this, in December: “[I] know that getting [Tim Griffin] appointed was important to Harriet” Miers, “Karl” Rove, “etc.”

    And so it was then asked why, if Karl Rove was involved, would the Justice Department send a letter to Congress saying he wasn’t involved? And they said, “Well, the White House counsel’s office gave us that information that Mr. Rove wasn’t involved.” Ask the White House why that happened, and here was the answer from the deputy press secretary: “The [February] letter [saying that Rove had no role in the appointment of Tim Griffin] was received here by an associate counsel named Chris Portion. He was new to the White House counsel’s office. He made suggested edits of the letter. He had very limited knowledge of the circumstances surrounding the appointment of Mr. Griffin as U.S. attorney and the prior conversation with his supervisors, who he had only worked for” “I think about a month or two. And he cautioned the Justice Department to make sure the facts were accurate.”

    So the White House saying now that the White House counsel who vetted this wasn’t really experienced enough to do that, and, oh, by the way, he said the Justice Department should have taken other precautions. However, when you look at the e-mails, lo and behold, you find this, that same White House associate counsel writing an e-mail to Kyle Sampson back in December about what? The appointment of Tim Griffin as U.S. attorney in Arkansas. “Seems to me” Senator “Pryor and” Senator “Lincoln are taking steps to back the” Department of Justice, the White House “into a corner on Tim Griffin and commit to not commit on him as a nominee. Tim can call himself ‘U.S. Attorney’ rather than ‘interim’ or ‘acting’ and our talkers should avoid referring to him as ‘interim.’ What are your thoughts?” This is a White House counsel familiar with the nomination sending information that was false to the Justice Department, who then sent false information to Congress. Why wouldn’t you want to bring the White House staff before you and find out what happened and why?

    SEN. HATCH: Well, first of all, let’s understand something. This was not well-handled. I think anybody with brains would, would admit that, and they are admitting that. And the Justice Department is admitting it, and the White House pretty well has admitted it. Now, the Justice Department has offered to bring in their people under oath. I presume that General Gonzales will be under oath. These are the people who handled it. These are the people who understand it. With regard to the White House, you’re talking about the top advisers to the president. The president has indicated that he’s going to invoke executive privilege. But they have offered to send Rove, and, in fact, they made an offer to send more. The general counsel Fred Fielding made an offer to send even more people than we had asked for on the Judiciary Committee, but they said, “Look, we’ll send them up there, you can get the facts from them. Yes, we want it to be not under oath with a limited number of people, but this is the way to get to the facts.” And, of course, the Democrats on the Judiciary, Judiciary Committee are not satisfied with that. So if they...

    SEN. LEAHY: A lot of Republicans aren’t...

    SEN. HATCH: ...if they—they’re going to—now, wait a minute.

    SEN. LEAHY: A lot of Republicans aren’t satisfied either.

    SEN. HATCH: Let me finish. Let me finish, Pat.

    SEN. LEAHY: A lot of Republicans aren’t satisfied with it.

    SEN. HATCH: Pat, let me finish. I didn’t interrupt you.

    SEN. LEAHY: (Unintelligible)...tell the truth.

    SEN. HATCH: Pat, I didn’t interrupt you. Now, let me just tell you something. There is not one shred of evidence here that any of these appointments were made to, to use Senator Specter’s words, to, to, to interfere with an ongoing investigation or case. Not one shred of evidence. This is a tempest in a teapot and, and, and the president—everybody admits that the president—these people served at the pleasure of the president. What happened here is, the president’s goals and purposes were to go after immigration smuggling cases, gun cases, so they get tough on the misuse of guns, on pornography cases. And some of these people were not doing that. Now, where they got in problems is they, they said there were performance problems. What they meant, it seemed to me by the so-called word in performance, was that these people were not following up on these cases.

    Take Carol Lam, for instance. Carol Lam was raised on your program, Tim, by Schumer. Carol Lam, it’s amazing to me she wasn’t fired earlier because for three years members of the Congress had complained that there had been all kinds of border patrol capture of these people but hardly any prosecutions. She was a former law professor, no prosecutorial experience, and the former campaign manager in Southern California for Clinton, and they’re trying to say that this administration appoints people politically? Of course they do. That’s what these positions are. But politically they’ve appointed people who have been approved by the Justice Department—the Judiciary Committee, in most cases, who have served well, are strong people and, and, frankly, these, these seven were really mishandled.

    One more from earlier in the show:

    An interesting cough by Hatch from the same transcript:

    MR. RUSSERT: So now we have the chief of staff saying attorney general talked to Karl Rove about the performance of U.S. attorneys. Do you believe that the attorney general has misled the nation?

    SEN. HATCH: I don’t believe he has. My experience with General Gonzales is that (coughs) excuse me—is that he is a very honest man.

    Update: Rachel Maddow

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    TPM timeline

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    2010.03.03 Hatching more lies?