Fieger Update

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I am really overdue to give you all an update on the Geoffrey Fieger case, where the government mobilized 80 FBI agents (presumably pulling them off terrorism investigations) to go sniff into Trial Lawyer Geoffrey Fieger’s donations to John Edwards. The government has been trying to convince the judge in the case that there was nothing improper about their investigation in a series of ex parte meetings. But when Fieger’s team pointed out how, um, unusual all these secret meetings were, the government decided to take it all back, and ask the judge to pretend he never saw any of the explanations the government had already offered.

I’ll come back and update you on that in the next few days (particularly if my trip to Philly continues to be postponed). In the meantime, let me confess that I was really remiss in that I didn’t go to the hearing in Detroit on Friday. Which looks like a damn shame, because every time the government shows up at a hearing, they dig the hole they’re in deeper and deeper. In particular, they keep changing their story about whether this case was started when an ex-Fieger employee waltzed into the FBI a year and a half after the fact and complained about being pressured to donate to John Edwards, or whether the case started from somewhere else. From this report on Friday’s hearing, it sounds like they changed their story again on Friday, to say they simultaneously started investigations in Detroit and in the Noel Hillman led Public Integrity section. (Btw, if Noel Hillman received a subpoena in the woods and nobody heard it, would he really have received a subponea?)

Assistant U.S. Attorney Lynn Helland said Friday he made a mistake by not consulting with U.S. Department of Justice headquarters before opening the investigation, as required by departmental rules.

Helland acknowledged he was unaware of the guideline. But he said the mistake was inconsequential because the Justice Department‘s public integrity section was independently opening its own investigation.

Borman also expressed concerns after Helland confirmed claims by Fieger’s lawyers that witnesses called before the grand jury for the case were asked for whom they voted in certain elections, the newspaper reported.

"That again seems to be a highly invasive probing by the government" Borman said. Read more →

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Nacchio’s Hearing–before the Judges Who Gave Him Bail–Set for Next Week

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I said yesterday that the lawsuits against the telecoms were the only means left for us to find out how the government spied on Americans. I forgot about Joseph Nacchio, whose appeal will be heard by the same folks who decided his appeal addressed a "substantial issue."

The same three appellate judges who ruled that Joe Nacchio could remain free pending an appeal of his conviction of insider trading will hear his case next week, the 10th Circuit Court of Appeals announced Monday.

That could favor the former Qwest CEO because the judges already decided when they granted Nacchio’s request to stay out of prison that there was "a substantial question of law or fact" that could lead to a reversal of his April conviction.

"Nacchio has to be very happy," said Jay Brown, a University of Denver law professor who has followed the case.

The judges already have drawn some conclusions about the case and are sympathetic to Nacchio, Brown added.

But Marcy Glenn, head of the appellate practice group for the Holland & Hart law firm, didn’t think one should read too much into the fact that the panel is the same.

"The earlier decision was an interim decision, and it was made before there were any briefings on the merits of the case," Glenn said. "I would expect (the three-judge panel) to be absolutely open to all arguments at this point."

Oral arguments are scheduled for 2 p.m., Dec. 18. The case is being heard on an expedited basis, though no deadline for a decision has been set and the panel may issue its ruling at any time.

Jeralyn Merritt live-blogged a good deal of Nacchio’s trial, so hopefully she’ll give us her expert opinion on this appeal.

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Banana Split

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The investigation into Chiquita for supporting Colombian terrorists always stank. Chiquita’s executives got some high level meetings at DOJ and–purportedly–DOJ told them they should not worry about paying protection money to terrorists, so long as they cooperated with DOJ’s investigations into the Colombia death squads. Then, no charges were filed against any of the well-connected Republican executives. But now we find out that a warrant supposedly served on Chiquita back in 2004 may never have been served (h/t Rayne).

What happened to the search warrant that the government supposedly served on Chiquita Brands International three years ago? The lead prosecutor on the case — in which Chiquita was accused of funding terrorism — has always thought that the warrant was executed. But lawyers for the company and a U.S. Department of Justice official recently said that it wasn’t. Their revelation has led to new questions: Was the warrant blocked, and if so, why?

[snip]

… one highly placed Justice official confirms that no warrant was executed. This official, who spoke on the condition he not be named, wouldn’t elaborate.

In a postpublication interview, [the original prosecutor Roscoe] Howard says he still believes the warrant was obtained and executed, and that the Justice Department is "stonewalling" for reasons he doesn’t understand. He adds, "I’ve got no doubt it was executed, but someone may be covering it up for some reason." Howard and Seikaly both say that their former colleagues in Justice won’t discuss the warrant with them now, which puzzles them.

[snip]

Ken Wainstein also played a key role in the Chiquita probe. At the time of the Justice deliberations over the warrant, he was chief of staff to the director of the Federal Bureau of Investigation, which would have been responsible for serving the warrant. Boyd, Wainstein’s current spokesman at the national security division, declined to comment on his boss’s involvement with the Chiquita warrant.

One source close to the Chiquita investigation, who asked to remain anonymous, says he suspects that the warrant was cancelled either by someone at the Justice Department’s main headquarters or at the FBI. If the warrant were sabotaged, it raises questions of favoritism, and even obstruction of justice. Read more →

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General Hayden Gets Mail

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Congressmen Conyers, Delahunt, Scott, and Nadler would like Michael Hayden to provide a detailed description of how and why torture tapes got destroyed. Here are the key questions:

3. Did the CIA notify the Department of Justice of its intention to destroy the tapes and if so, when? Did the CIA receive a legal opinion from the Department of Justice’s Office of Legal Counsel, or any other entity, relating to the destruction of the tapes? Please provide copies of any such written materials.

4. In light of the fact that the September 11 Commission and a federal court requested information regarding these types of materials, why did the CIA decide not to provide information to these two entities concerning the existence or possible and actual destruction of the tapes?

5. When the CIA provided information to Department of Justice lawyers in 2003 and 2005 with respect to the request of the court in the Moussaoui case for evidence taken from interrogations of CIA prisoners, as stated in the Times article, what information concerning the tapes was provided to Department lawyers?

I’m especially interested in question number 3. As I said earlier, I think one of the two most likely times for the destruction of the tape is between May 10 and May 30, 2005, when OLC was busy writing torture opinions to override existing restrictions on torture. In fact, I wonder whether they have refused to turn over those particular torture memos (in addition to their desire to hide the ongoing torture) because they didn’t want anyone to know that (probably) Steven Bradbury deemed it legal.

In any case, I think there’s a high likelihood that Bradbury did deem it legal–given Hayden’s repeated claims that it was.

Anyway, things are getting interesting…

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Enigmatic Terms

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Luckily, Harry Reid has put off the Senate vote on the FISA amendment, because I never finished my series showing that the current amendment will legalize data mining. Man oh man oh man, am I looking forward to meeting the deadline I’m on, celebrating a late Turkey Day with friends this weekend, then going into a blog and bill paying frenzy next Monday.

In the meantime, I direct you to Marty Lederman’s latest post, which notes that as far back as Poppy’s day, they were deliberately obfuscating the purpose of their FISA amendments.

Seventeen years ago, the very first Bush (41)Administration was considering whether to ask Congress for an amendmentto FISA very similar to the one the current Administration is nowseeking. Mary Lawton, the FISA guru within DOJ at the time (shetragically died shortly thereafter), wrote a memo to Daniel Levin in the Deputy’s Office (yes, thatDaniel Levin) discussing why such a proposal might not be such a goodidea. That memo has recently been released under FOIA. (Hat tip toDavid Kris for obtaining it and bringing it to my attention.)

The most important sentence in the memo, I think, is this one, in the penultimate paragraph:

"Itshould also be noted that the proposed amendment to FISA to resolve theNSA problem . . . is certain to be written in such enigmatic terms Read more →

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Speaking of the Saudis

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Check out who Bandar Bush bin Sultan hired to defend him in the BAE bribery investigation:

Prince Bandar, a confidant of the Bush family, recently retained the former Federal Bureau of Investigation director Louis J. Freeh,  as well as one of the fathers of the F.C.P.A., the retired federal judge Stanley Sporkin, to represent him.

“Therehave been no charges filed,” Mr. Freeh said in an interview. “Theprince denies any impropriety and violating any statutes in the UnitedKingdom or the United States.”

The news is eye-popping (to me, at least) for more than just Freeh’s former role as the head of the FBI. You see, Freeh is a very good buddy of our new AG, Michael Mukasey, showing up at his confirmation hearings.

Something in the front row of the spectator’s gallery kept catchingmy eye as I watched the stock footage of the Mukasey confirmationhearings being played over and over on Friday–I kept thinking isn’tthat Louis Freeh in the front row? So, on Saturday Morning I did a little googling and lo and behold! — it WAS Louis!

How curious!

What would Louis Freeh be doing at that hearing?  Hmmmm?

And his swearing-in ceremony.

Dignitaries in attendance included Sens. Arlen Specter, R-Pa., SamBrownback, R-Kan., and Lindsey Graham, R-S.C., and former attorneysgeneral John Ashcroft and Dick Thornburgh. Also seated near the frontwere FBI Director Robert Mueller and ex-FBI Read more →

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Fieger Makes Allegations about Arkansas

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I admit–I’m getting sucked into the Geoffrey Fieger case. I will have more to say, but the short version is this:

The government alleges that Fieger and his partner got employees from their law firm to donate to John Edwards in his 2004 election. And then, the government further alleges, they reimbursed those people. From the government’s perspective, Fieger laundered a lot of money to give big dollars to Edwards. From the perspective of this Administration’s seeming pattern of politicized prosecutions, they went after Fieger (and other trial attorneys) to disincent trial lawyers from making political donations.

The big scandal (besides the possibility that BushCo is prosecuting Fieger as part of a political prosecution) is that it appears the government may be using tools designed for national security prosecutions in support of a campaign finance investigation–basically, Fieger alleges the government is abusing the tools Congress gave them to investigate terrorism in order to punish Democratic political activities. And he’s trying to get the evidence to prove that case.

At present (Fieger’s trial is due to start at the beginning of December), Fieger is dealing with four issues related to selective prosecutions.

  • BushCo got a bunch of subpoenas for financial information–apparentlyunder grand jury subpoena–without having to reveal those subpoenas;Fieger’s team thinks they used National Security Letters or some otherimproper subpoena to get that information
  • Bush’s DOJ sent a small army of people to search Fieger’s firm (and his employees’ homes), serious overkill for a white collar crime investigation
  • The top three people in the USA office in Eastern Michigan recused themselves from the case; Fieger’s team thinks there’s some hanky-panky behind the recusal
  • The only investigation into campaign finance violations for the 2004 Edwards campaign that ended in a civil–as opposed to criminal–penalty was a lawyer in Arkansas–but the agreement was signed at the same time that Bud Cummins was fired, a coinkydink that Fieger alleges was the reason Cummins was fired

Here’s the court’s opinion summarizing the last three of these issues (look on page 1 for Judge Borman’s description of three of four of these issues, he reviews these issues in camera before making the ruling on these three issues; he refuses to show Fieger the subpoenas in another order). On the issue of the army of FBI agents to investigate the firm, Borman allows Fieger to see dates of such overkill investigations, but not the names or details. On the issue of recusal, he orders the government into further discussion of the reasons behind the recusals. And on the issue of the one trial lawyer campaign finance investigation that did not end in criminal sanctions, Judge Borman refuses to provide the name to protect the innocent accused.

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Shall, Part Two?

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Back in June, I pointed out that, in case of disputes over the EO guiding classification, the head of the Information Security Oversight Office can ask the Attorney General to rule on the dispute.

This morning, when I read the famous Executive Order that Cheney claims to have exempted himself from, I noticed a key paragraph:

The Attorney General, upon request by the head of an agency or the Director of the Information Security Oversight Office, shall render an interpretation of this order with respect to any question arising in the course of its administration. [my emphasis]

Yousee, I’m no lawyer, but I have written enough pretty hardcore businessand government documents to know there’s a crucial difference between"shall" and "should." Shall is mandatory, with legal umph. Should iskind of wishy-washy, if you feel like it, ought to. So I was wonderingwhen the Democrats were going to point out to Alberto Gonzales that he shallprovide a response to Bill Leonard’s request for a ruling on whether ornot Cheney is, indeed, exempt from this Executive Order.

AFAIK, AGAG never got around to ruling on the dispute before he got out of Dodge (though I’m happy to be corrected if I’m wrong). Which means the dispute remains Read more →

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Bush and Schumer

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David Kurtz reports that the Mukasey nomination will come down to the Senate Judiciary Committee vote (and TPM is tracking votes so far). I believe this sets up some really interesting tension between Bush and Chuck Schumer.

You see, events thus far have made it very important for Bush to get Mukasey approved. While David Addington may have thought it in Bush’s best interest to push Mukasey to adopt the party line, they’re now at the place where, if Mukasey is rejected, it will be because of Bush’s torture policy. (Frankly, this is unfortunate from a principled perspective, since it means that the Senators don’t care about the unitary executive more generally, but it works to our advantage politically.) The press has spun the rising tension to be entirely about the issue of torture, which makes it inconceivable that, if Mukasey is rejected, the narrative will be anything but torture. Which will shine a bright light on the torture policy itself, and some Soccer Moms who might otherwise be ignorant that men are being tortured in their names may just discover that their government is doing reprehensible things.

Which is why Bush is so pissy about the doubts about Mukasey’s appointment.

President Bush Read more →

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Whitehouse Sniffing around Bush’s Executive Orders

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Remarkably, Sheldon Whitehouse asked Mukasey very few written questions. But I am intrigued by this one.

2. Do you believe that the President may act contrary to a valid executive order? In the event he does, need he amend the executive order or provide any notice that he is acting contrary to the executive order?

ANSWER: Executive orders reflect the directives of the President. Should an executive order apply to the President and he determines that the order should be modified, the appropriate course would be for him to issue a new order or to amend the prior order.

Whitehouse, that sneaky guy, is not letting on which Executive Order he believes Bush may have violated, though it’s clear that’s the genesis of the question. I’d say it relates to Bush’s recent executive order on torture, since that’s the focus of so many questions for Mukasey. But the timing is off–Bush only signed that EO recently, so he hasn’t had much time to violate it.

Furthermore, the structure of the question doesn’t sound like Whitehouse is addressing torture. It’s not like Bush would act contrary to the torture EO; he’d authorize actions contrary to it.

So what do you think it is? The first Read more →

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