Archive for category: Law

I’m stuck between three gallons of canned tomatoes, a soon-to-be gallon of canned peaches, and a big pot of borscht. Which means I’m too hot to deal with the Padilla verdict yet. So instead I’m going to point out that my reading of Gonzales’ correction from a few weeks ago was correct. Back then I said:

But here’s an interesting detail about the hospital visit:

Ialso recall that, prior to the time I departed, General Ashcroftbriefly mentioned a concern about security clearances for members ofhis staff regarding the NSA activities that were the subject of thepresidential order.

I find this interesting for several reasons. First, it suggests that Ashcroft was complaining that his staffers weren’t givensecurity clearances to be read into this program. Recall that Bushrefused to give some Office of Professional Responsibilitiesinvestigators security clearances, which meant they couldn’tinvestigate the program. We also know that Cheney and Addington wereworking directly with John Yoo, bypassing Ashcroft, to pull off theirshredding of the Constitution. But this detail suggests they were alsoshrouding their program by preventing top DOJ officials from gettingsecurity clearances.

I’m also struck that Gonzales felt like he needed to clarify thispoint. Is this something that Comey–or Ashcroft himself–alreadytestified to the Senate about? And what Read more →

In light of the weekend’s news that there were actually two FISC rulings against the Bush Administration’s warrantless wiretap program, I’d like to return to this James Risen article from May 2.

Senior Bush administration officials told Congress on Tuesday thatthey could not pledge that the administration would continue to seekwarrants from a secret court for a domestic wiretapping program, as itagreed to do in January.Rather, they argued that the president had the constitutionalauthority to decide for himself whether to conduct surveillance withoutwarrants.

As a result of the January agreement, the administration said thatthe National Security Agency’s domestic spying program has been broughtunder the legal structure laid out in the Foreign IntelligenceSurveillance Act, which requires court-approved warrants for thewiretapping of American citizens and others inside the United States.

But on Tuesday, the senior officials, including Michael McConnell,the new director of national intelligence, said they believed that thepresident still had the authority under Article II of the Constitutionto once again order the N.S.A. to conduct surveillance inside thecountry without warrants.

[snip]

Mr. McConnell emphasized that all domestic electronic surveillancewas now being conducted with court-approved warrants, and said thatthere were no plans “that we are formulating or thinking aboutcurrently” to resume domestic wiretapping without warrants.

“But I’d just Read more →

I’m not so much surprised that Scottish Haggis Specter has urged Pat Leahy to ask for a meeting with the White House to negotiate testimony of White House officials.

For the last several months, I have been seeking the voluntary cooperation of the White House with the efforts of the Senate Judiciary Committee to get to the bottom of the scandal surrounding the firing of so many of the United States Attorneys you had appointed. 

[snip]

I have sent numerous letters to your White House counsel to no avail.  For example, in a May 16 letter to Fred Fielding I outlined some of the indications of Karl Rove’s involvement.  Yet, all of my good faith efforts have been rebuffed.  The stonewalling leaves me and the Senate Judiciary Committee with few options other than considering citations for contempt of Congress against those who have refused to provide relevant testimony and documents to the Congress. 

Senator Specter has urged me to write to you directly and suggest that we sit down together to work out our differences with respect to this matter.  That is the purpose of this letter.

I’m just more intrigued by the timing. Leahy sent this one August 14, just one day after the Turdblossom wilted. The only known person the Senate Judiciary Committee has subpoenaed who refused to show up at all was that same Turdblossom (Sara Taylor and Scott Jennings showed up and answered only the questions that put the White House in good light; Harriet Miers was subpoenaed by the House Judiciary Committee). And Leahy names Rove specifically in this letter. While I’m not convinced that Specter was the "leading Republican" Novak invokes who had it in for Rove (Specter is weak enough, Novak would have felt free to name him, for example), I do find the suggestion that Specter used that opportunity to push Leahy to seek conciliation with the White House rather curious.

Since we’re talking about leaks in the Foggo-Wilkes trial, I wanted to return to the leaks leading up to the Foggo-Wilkes indictments. As a review, Wilkes lawyer Mark Geragos asked the court to dismiss the indictments, arguing that leaks just prior to the time Wilkes was indicted made it impossible for Wilkes to get a fair trial. I talk about the timeline in this post and this one. But we’ve got new details tied to Kontogiannis’ plea deal and recent document dumps, as well as the "results" of DOJ’s self-investigation of the leak.

My updated timeline (below) shows:

• The disputed leak over Lam’s resignation appeared just days before the first leaks about the indictments. In other words, there was already a case of a disputed leak before the leaks specifically pertaining to indictments started.
• The possibility of an imminent Kontogiannis indictment figured inseveral of the leaks; this was just a week before he signed a plea deal.
• FBI Special Agent in Charge Dan Dzwilewskiappears to have stayed just long enough to see the supersedingindictments filed (he retired on April 30, the superseding indictmentswere filed May 11). Kontogiannis appears to have been cooperatingthroughout this period.
• There was a significant delay before the USA for EasternCalifornia started investigating the indictment-related leaks, thoughthat investigation only took two weeks. The results of that investigation almost perfectly coincided with the unsealing of Kontogiannis’ plea deal (though there may be no connection between the two events). Most curious, the DOJ investigation into the leak didn’t start until Geragos inquired about its status; altogether, there was a roughly 2.5 month delay between the time SD’s USA office submitted Geragos’ complaint and the time when the investigation started.

In other words, the Kontogiannis involvement seems to be an underlyingtension behind the leaks, in addition to the indictments themselves.

DOJ dumped another stash of emails while I was at YKos. Unlike the other late-in-the-scandal email dumps, this one doesn’t consist primarily of emails listed on Kyle Sampson’s list of withheld emails. These are new, previously unidentified emails. That’s not surprising, necessarily, since this dump comes from the Deputy Attorney General’s office, not the Attorney General’s office (where Sampson worked). I’m curious though why this dump came when it did, since other document dumps appeared to be tied to the testimony of individuals (that is, they released the Monica-related emails before she testified, and the Miers/Taylor emails before they were scheduled to testify). In this case, the dump may be related to Paul McNulty’s departure.

But I think it much more likely (since half of these emails pertain to Will Moschella, and not McNulty) that these emails are a response to HJC’s interim report on the USA scandal, specifically regarding allegations relating to David Iglesias’ firing.

HJC’s Allegations of an Iglesias Firing Cover-Up

As I wrote when the report came out, the most incendiary allegation in the report is that DOJ conspired to keep the reasons behind David Iglesias’ firing secret. It included Gonzales in this claim, but also asserted that Will Moschella and Paul McNulty may have specifically tried to cover up the actions from fall 2006 that resulted in Iglesias’ firing. The report specifically alleged that Moschella and McNulty downplayed the import of an October 2006 call from Senator Domenici.

The Committee also has concern about the statements made by Mr. McNultyand Mr. Moschella to the Senate and House Judiciary Committeesregarding the firing of David Iglesias. Neither official testified thatthe firing may have been based in whole or in part on a call receivedby Mr. McNulty from Senator Domenici in October 2006, even though Mr.McNulty stated during his subsequent interview with the Committee thatsuch a call from Senator Domenici was at least important to hisdecision not to object to Mr. Iglesias’ presence on the firing list.Furthermore, the omission of that information may have been deliberate.Monica Goodling stated in her testimony before the Committee that theissue of the call from Sen. Domenici had come up during a preparationsession in advance of Mr. McNulty’s briefing to members of the SenateJudiciary Committee in early February 2007, and that Mr. McNultydirected her to omit the reference from the materials she was draftingfor him to use.

Even while Gonzales misrepresented the purpose behind some spring 2006 calls: