Blagojevich's Lawyers Don't Do Impeachment

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Even more interesting to me than the fact that Blago’s defense attorneys are refusing to defend him in the impeachment trial…

The legal team that has represented embattled Gov. Rod Blagojevich in impeachment proceedings in Springfield has stepped down in protest before the governor’s trial in the Illinois Senate, the Tribune has learned.

Blagojevich’s lawyers said the process has become "fundamentally unfair" because they have had too little time to prepare for the Senate trial and have been denied subpoena power to call their own witnesses.

The governor’s lawyers had been asked to file an appearance on his behalf by Monday. The Senate trial is scheduled to begin Jan. 26.

In a statement, attorney Sam Adam and his son, Samuel E. Adam, said they couldn’t in good conscience represent the governor in a Senate trial "without any due process of law, fundamental fairness or the most basic right to confront one’s accusers."

"We cannot and will not degrade our client, ourselves, our oaths and our profession, as well as the office of the governor, by participating in a Potemkin-like lynching proceeding, thus making it appear that the governor is represented by competent counsel when in fact he is not," the statement said.

Edward Genson, another Blagojevich attorney, said he also is recusing himself from representing the governor before the Senate and agreed the trial would be unfair.

"I had never committed to the Senate trial, and I will not file an appearance," Genson said.

That’s interesting–though likely just a stunt to prevent the impeachment from going off smoothly.

But even more interesting is the notion that Sam Adam Jr.–the guy who brokered Burris’ appointment to the Senate–is refusing to represent "his client." 

That’s because just a few weeks ago, Genson insisted to the IL legislative committee that Adam was not, in fact, part of the defense team. If he wasn’t part of the defense team, then how could he be stepping down now?

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Magistrate Judge Calls "Bull" on WaPo's Gloss–Calls for More E-Mails

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The WaPo presented a very credulous view of the status of lost emails in a story many of you have emailed to me–suggesting that "all" of the lost White House emails have been found.

Missing White House E-Mails Traced, Justice Aide Says

A Justice Department lawyer told a federal judge yesterday that the Bush administration will meet its legal requirement to transfer e-mails to the National Archives after spending more than $10 million to locate 14 million e-mails reported missing four years ago from White House computer files.

Civil division trial lawyer Helen H. Hong made the disclosure at a court hearing provoked by a 2007 lawsuit filed by outside groups to ensure that politically significant records created by the White House are not destroyed or removed before President Bush leaves office at noon on Tuesday. She said the department plans to argue in a court filing this week that the administration’s successful recent search renders the lawsuit moot.

I knew that was optimistic because the National Security Archive told a totally different story:

At a hearing today concerning the risks posed by the presidential transition to the recovery of millions of missing e-mails from the Executive Office of the President (EOP) in the National Security Archive’s lawsuit seeking restoration of those e-mails, the White House acknowledged that it has done little to recover e-mail files from computer workstations and nothing to collect external media storage devices that could hold e-mails.  These admissions came despite the issuance of a report and recommendation in April 2008 by a federal magistrate judge calling for the White House to locate and preserve data from the workstations and external media storage devices.  Earlier today the court issued an order requiring steps to be taken to secure files from individual computer workstations, memory sticks, zip drives, DVDs and CDs.

Now, Magistrate Judge Facciola, working in tandem with Judge Kennedy on this case, issued a new order after the hearing yesterday calling for a more thorough inventory. Here’s NSA’s version of what has happened.

The federal magistrate judge overseeing the White House e-mail litigation today described the issue as reaching “true emergency conditions” with only “two business days before the new President takes office,” and that “the importance of preserving the e-mails cannot be exaggerated,” according to the court’s Memorandum Opinion issued this morning along with an Order and posted on the National Security Archive website, www.nsarchive.org. (see attached PDFs)

Magistrate Judge John Facciola formally ordered the White House to search all Executive Office of the President components’ workstations and portable media for possibly missing e-mail – enforcingyesterday’s order from U.S. District Judge Henry Kennedy(http://www.gwu.edu/~nsarchiv/news/20090114/order_20090114.pdf) – after government lawyers at a hearing yesterday represented that they would only search those EOP components that create federal agency records and leave out offices that create presidential records.

Today’s order also granted plaintiffs’ requests that a full inventory of all backup tapes and portable media containing White House e-mail be delivered to the Archivist of the United States and filed with the court, and that the full administrative record and all other evidence related to the White House e-mail be preserved under the custody of the Archivist.

“From the outset, the White House has fought tooth and nail against having to preserve sources of missing email as well as other evidence relating to this case,” said Sheila Shadmand Read more →

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The US Torture Regime – Where Is The Swift Justice?

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Earlier, Marcy and Spencer wrote about the somewhat startling admission today by Susan Crawford that the United States tortured Mohammed al-Qahtani. From Woodward and the Washington Post:

"We tortured [Mohammed al-]Qahtani," said Susan J. Crawford, in her first interview since being named convening authority of military commissions by Defense Secretary Robert M. Gates in February 2007. "His treatment met the legal definition of torture. And that’s why I did not refer the case" for prosecution.

The entire article is worth a read just so that the bare facts of what the United States does in your name can set in. But the real thing that strikes me about Crawford’s admission is the unequivocal starkness of it. "We tortured". "Met the legal definition of torture".

Well okay then. What more could we ask for? Maybe that the statement was made by a Bush Administration official, in a position of authority, someone that actually speaks for and might could bind the government to the admission. Well, as convening authority for the military commissions, Susan Crawford darn well ought to suffice for that.

Sounds like what we have here is what the legal profession, and specifically the criminal justice portion thereof, calls an "admission against interest".

An admission against interest is an exception to the hearsay rule which allows a person to testify to a stament of another that reveals something incriminating, embarassing, or otherwise damaging to the maker of the statement. It is allowed into evidence on the theory that the lack of incentive to make a damaging statement is an indication of the statement’s reliability.

In criminal law, it is a statement by the defendant which acknowledges the existence or truth of some fact necessary to be proven to establish the guilt of the defendant or which tends to show guilt of the defendant or is evidence of some material fact, but not amounting to a confession.

Tonight, on MSNBC’s Countdown, former Navy JAG attorney Charles Swift laid out the background and implications of what our country has done and become (Attached are both the portion with Charlie Swift as well as a followup portion). What we have done is not good. It is not right. And it is not justified. It is a war crime under 18 USC § 2441.

For her next trick, perhaps Susan Crawford can tell us when the war crime prosecutions will be starting.

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The Inventory of Blagojevich Wiretaps

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The Sun-Times reports yet more wiretaps used in the Blagojevich investigation. From the complaint, we knew of:

  • Two bugs in Friends of Blagojevich office
  • Wiretap on Blagojevich home land line

From the motion to release the wiretaps related to the horse racing scheme, we learned of:

  • Wiretap on Lon Monk’s cell phone

And this article reports:

  • Camera focused on entrance to Friends of Blagojevich office
  • Wiretaps on cell phones of three close Blago advisors (this may or may not include the one on Monk)

Recall that when Fitz asked for a 90 day extension, he mentioned the thousands of tapes they had to go through. It sure sounds like thousands to me.

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More Archiving Headaches for the Poor Bush Administration

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This time, with a judge telling them to go look again for those missing White House emails.

The United States District Court for the District of Columbia today granted the National Security Archive’s emergency motion for an extended preservation order to protect missing White House e-mails.  With the transition from the Bush Administration to the Obama Administration taking place in six days, and all the records of the Bush White House scheduled for a physical transfer to the National Archives and Records Administration (NARA) on that same day, the Court has directed the Executive Office of the President (EOP) to search all its computer work stations and has ordered EOP employees to surrender any media in their possession that may contain e-mails from March 2003 to October 2005.

“There is nothing like a deadline to clarify the issues,” said Archive Director Tom Blanton.  “In six days the Bush Executive Office of the President will be gone and without this order, their records may disappear with them.  The White House will complain about the last minute challenge, but this is a records crisis of the White House’s own making.”

Counsel for the Archive, Sheila Shadmand from Jones Day made clear: “The White House has been on notice since we filed our lawsuit a year and a half ago that they would have to retrieve and preserve their e-mail.  Instead of coming clean and telling the public what they have been doing to solve the crisis, they refused to say anything.  At this point, it is critical to preserve evidence that can help get to the bottom of the problem and prevent it from happening again.”

Magistrate Judge John M. Facciola has scheduled an emergency status conference today at 2 p.m. to consider additional measures that may be necessary to protect the records during the transition. (Courtroom 6 of the E. Barrett Prettyman Federal Courthouse)

I can just see them now, the same folks who have been talking about their sacred duty to bury things for 12 years deliver all their documents to the National Archives, trying to explain how it was that they accidentally destroyed Scooter Libby’s hard drive and Karl Rove’s Blackberry.

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Those Evil Dems Are Preventing Bush from Archiving Properly

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facade.gifI noted the other day that–after years of trying to limit the Bush Administration’s responsibilities under the Presidential Records Act–the Bush Administration had found religion and was insisting that it had to box up all the documents proving they acted improperly when they fired nine US Attorneys. Basically, the first thing they did after the new year was to send Judge Bates a status report describing their solemn duty to throw everything in boxes, hopefully to make it unavailable for five years (to be fair, DOJ–and not Dick Cheney–sent the status report, so this is only partly hypocritical).

Although the PRA generally restricts access to presidential records for a period of five years (or until the Archivist completes processing and organizing the records), and further restricts disclosure of certain categories of information for a period of up to 12 years when presidential records are requested under the Freedom of Information Act, see 44 U.S.C. § 2204, the PRA contains special-access provisions that are relevant here. First, “[n]otwithstanding any restrictions on access imposed pursuant to section 2204, . . . subject to any rights, defenses, or privileges which the United States or any agency or person may invoke, Presidential records shall be made available . . . pursuant to subpoena or other judicial process issued by a court of competent jurisdiction for the purposes of any civil or criminal investigation or proceeding[.]” 44 U.S.C. § 2205(2)(A). Second, the same exceptions to restricted access apply to requests for access to presidential records of a former President by “an incumbent President if such records contain information that is needed for the conduct of current business of his office and that is not otherwise available.” Id. § 2205(2)(B).[my emphasis]

As I noted earlier this week, HJC believed–and Bates concurred–that putting these documents in boxes and requiring legalese to open them again might cause a bit of delay (not that that was the idea, I’m sure).

Sure enough, Bates was carried through on his concerns, and got both sides to stipulate that these documents will remain at the White House until the suit is done (and/or HJC gets their grubby paws on it). 

Defendants will create a copy set of all materials responsive to the subpoenas, including both paper and electronic documents, in hard copy format to be stored, segregated, and maintained at the White House for use in this litigation until this litigation is finally resolved.

[snip]

Read more →

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Shorter Schloz' Criminal Referral

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Is here. Or rather, the Inspector General’s report describing his criminal referral for lying to Congress.

We have referred this matter to the U.S. Attorney’s Office for the District of Columbia for a decision on whether the evidence warrants a criminal prosecution. We provided to the prosecutor the evidence we gathered in the course of our investigation, including transcripts of interviews and relevant documents and e-mails.

[snip]

Schlozman is no longer employed by the Department and, therefore, is not subject to disciplinary action by the Department. We recommend, however, that, if criminal prosecution is declined these findings be considered if Schlozman seeks federal employment in the future. We believe that his violations of the merit system principles set forth in the Civil Service Reform Act, federal regulations, and Department policy, and his subsequent false statements to Congress render him unsuitable for federal service.

Of course, the report is dated July 2, 2008. So what has happened?

Here’s the answer to that question:

We referred the findings from our investigation to the U.S. Attorney’s Office for the District of Columbia in March 2008. We completed this written report of investigation in July 2008.

The U.S. Attorney’s Office informed us on January 9, 2009, of its decision to decline prosecution of Schlozman. The Interim U.S. Attorney, Jeffrey Taylor, was recused from the matter and the decision.

So, after taking ten months to decide whether or not to prosecute (ten months which happened to include an election in which one of those named in the report–Hans Von Spakovsky–served on FEC), they now release the report. Nice.

Consider this a working thread. I need to run out for a few hours, and I assume that WO and others will get a good start on this before then.

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The Congressional Research Service Says the Senate Can Exclude Burris

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Jane (here, here, and here) and bmaz (here, here, and here) have been diligently chronicling the continuing saga of seating Roland Burris. In the last week, we’ve seen Reid and Durbin scream Go! Stop! Go! at Burris.

But it turns out, since last Monday, they’ve had a Congressional Research Service study explaining whether or not they have to seat Burris, one they seem to have lost in all the excitement. It gives a basis I’ve not heard yet on which to exclude Burris (no link yet). 

Under the Powell decision and rationale, and under the express constitutional grant of authority, the Senate (and House) may, in addition to examining “qualifications” of Members-elect, examine the “elections” and “returns” of their own Members, that is, whether an individual presenting valid credentials has been “duly” chosen. A few years after the Powell decision, the Supreme Court in Roudebush v. Hartke, 405 U.S. 15 (1972), clearly affirmed the right of the Senate to make the final and conclusive determination concerning the election process and seating of its own Members.

[snip]

Additionally, the Senate has from time-to-time examined the election or selection process (prior to the adoption of the Seventeenth Amendment in 1913, Senators were selected by state legislatures) to see if corruption or bribery has so tainted the process as to call into question its validity.

All that says, really, is to look beyond just Powell to Roudebush as well to see whether or not the Senate can exclude Burris if it wants (bmaz assures me he will look up Roudebush once he gets done with his actual lawyering today).  And that corruption or bribery is fair game.

That said, even with Burris’ admission that he talked to Lon Monk about the seat, the way in which Blago’s defense-or-maybe-not lawyer Sam Adam Jr. brokered the appointment, and other dubious ties between Burris and Blago, it’s not clear that Congress yet has a clear case that Burris’ appointment–as distinct from Blago’s earlier attempts to sell the seat–involved bribery or any corruption outside the norm in Chicago politics. 

Update: Lawrence Tribe weighs in on the "they can exclude Burris" side. Note, this appears to have been published before Obama said he was staying out of this. 

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The Reid/Durbin Fabrication On Burris

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burris1thumbnail.thumbnail.jpgBy now you know how poorly Harry Reid and Dick Durbin have played their aces and eights hand on the Roland Burris appointment to Barack Obama’s former Senate seat. Reid and Durbin went all in with their chips on the Illinois Secretary of State and, predictably, lost their pleated dandy shirts.

Illinois law and the Constitution have always been contra to Reid and Durbin’s intransigence on Burris, but the disingenuous duo have always fallen back on their precious ancient Senate Rule II. They have steadfastly portrayed themselves as honorable protectors of the high ground of ethics, and citizens and the rubes in the media have bought off on it. To wit, Durbin grandly proclaimed late Friday:

…the Senate seat could remain vacant until Blagojevich is removed from office and the lieutenant governor takes over, making a fresh appointment.

He said the Senate cannot waive a 125-year-old rule requiring the signatures of both the governor and the secretary of state on any election or appointment.

Now, it is hard to tell whether these lustrous paragons of virtue are being intentionally dishonest, or are simply tragically ignorant of the questionable foundation of the argument they rely on. But it is one or the other. First off, as Jane pointed out Friday,

the 1884 Senate rule Durbin and Reid rely on was promulgated before the passage of the 17th Amendment as well as before the Supreme Court decision in Powell v McCormack. Reid and Durbin are duplicitous in thinking their antiquated Senate rule trumps the official selection pursuant to the 17th Amendment and Illinois statutory law.

So, there is that. But, guess what? After all this, it turns out the vaunted Senate Rule II isn’t even the bright line mandate they have been stating. In fact, Senate Rule II is simply an antiquated suggestion for a document template. While subparagraph 2 of Rule II mandates that the Secretary of the Senate keep a journal of all certificates signed by the governor and secretary of state of the appointing electing and/or appointing state for each Senator, the operative language on the form of the certificate is, contrary to what Reid and Durbin have been stating, not mandatory in the least. From the official Senate Rules:

3. The Secretary of the Senate shall send copies of the following recommended forms to the governor and secretary of state of each State wherein an election is about to take place or Read more →

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The Method to Blagojevich's Sam Adam's Madness

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I just reviewed Burris’ testimony before the impeachment committee. I was struck by Sam Adam Jr.’s efforts to orchestrate a wiretap that might exonerate Blago of any charges he attempted to sell the Senate seat for personal gain. Here’s what happened.

December 26, afternoon: Sam Adam Jr., a Blago lawyer who may or may not be part of Blago’s defense team, called Burris and told him he had something urgent to tell him. Burris was curious what he had to say, so–even though he was preparing for a black tie event, told him to come over. Presumably, even if Adam called from Blago’s tapped phones, this conversation would be minimized bc of attorney client privilege.

December 26, 4PM: Adam shows up. They have a conversation. Since it occurs in a place presumably free of wiretaps, we only have Burris’ version.

December 28, 4PM: Adam shows up to Burris’ house again. Same thing: presumably this conversation wasn’t tapped, so we only have Burris’ version.

December 28, shortly thereafter: Blago calls Burris and offers him the seat. Blago goes on at some length (per Burris’ description) listing Burris’ qualifications. Gosh. It’s as if Blago were performing an honest offer for the Senate seat, complete with listing all the reasons Burris is qualified. This conversation is on tape, and will make a nice trial exhibit to prove that Blago really was only trying to appoint someone qualified for the seat, and not seeking personal gain for it.

December 30: Blago announces the pick in a joint press conference. I find the delay interesting; something I’ll come back to. 

Isn’t that all neat and tidy? What I find particularly interesting is how it matches up with what we know of the offer Blago made to Danny Davis before he made an offer to Burris. 

December 24 morning; Davis and Sam Adam Jr. meet in Davis’ Chicago office. This conversation would not only not be tapped, but would be protected by legislative privilege. Like Burris, Davis had previously said he would not accept the spot, but he heard Adam’s offer anyway:

Davis said he was told "the governor would like to appoint me to the vacant spot." After Blagojevich was arrested Dec. 9, Davis, who sought the appointment from him when he thought Blagojevich was playing it straight, said he would not take the job if offered. Read more →

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