The Jurisdiction of DOJ’s Inspector General

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This is a follow-up on my post on the loophole in the jurisdiction of DOJ’s Inspector General, which appears to be preventing DOJ’s IG from investigating the role of any lawyer in the USA Purge–which is, after all, just about everyone involved. Here’s how Senator Leahy laid out the problem:

Other Inspectors General can investigate misconduct throughout their agencies.  Apparently, the Department of Justice Inspector General suffers under a limitation that restricts his ability to investigation misconduct by you, the Deputy Attorney General, and other senior Department lawyers.  Will you agree to the removal of this limitation on the Department of Justice Inspector General so that the Inspector General may investigate misconduct by you, other senior Department of Justice officials, lawyers, and law enforcement agents?

DOJ’s Inspector General, Glenn Fine, explained the problem at a recent appearance before the Senate Committee on Homeland Security (I know, shocker, Holy Joe held a hearing! I bet he regrets it now).

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Senate Dems Corner Bush and Gonzales on Their Attempt to Game Appointments

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Oh, this is getting fun.

Remember how I pointed out that Steven Bradbury, the guy who wrote the opinion declaring Harriet immune from having to appear before Congress, was not acting with proper authority?

Well, Leahy, Durbin, Feingold, and Kennedy have raised the stakes on that issue.

We write seeking information about a memorandum issued on July 10, 2007, by the Justice Department’s Office of Legal Counsel (OLC), concluding that former White House Counsel Harriet Miers should be absolutely immunized from responding to a subpoena to appear and testify before Congress. The White House and Ms. Miers are relying on this opinion as the basis for Ms. Miers’ refusal to appear yesterday before the House Judiciary Committee.

There is a serious question about whether this OLC opinion was properly issued. Under applicable law and regulations, the Attorney General has delegated to the Assistant Attorney General of OLC the authority to render opinions and legal advice to the various agencies of the government. The Assistant Attorney General may delegate this authority, but he or she must supervise the delegated work. When there is no Assistant Attorney General, confirmed or acting, the Attorney General must supervise the delegated work. Since you have recused yourself from matters Read more →

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The IG Loophole

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Remember how Senator Whitehouse busted Alberto Gonzales for trying to bury the DOJ’s internal investigation of the USA firing into the Office of Professional Responsibility, which has no authority over potential illegalities and doesn’t issue public reports? Remember how Paul Clement, who has ostensibly been in charge of DOJ’s internal investigation since the time Gonzales recused himself, has at the same time been defending the White House’s ability to keep materials from Congress? Well, that’s not the only way AGAG has managed to avoid any incrimination on this matter. Here’s the second bombshell question Leahy asked AGAG:

Other Inspectors General can investigate misconduct throughout their agencies.  Apparently, the Department of Justice Inspector General suffers under a limitation that restricts his ability to investigation misconduct by you, the Deputy Attorney General, and other senior Department lawyers.  Will you agree to the removal of this limitation on the Department of Justice Inspector General so that the Inspector General may investigate misconduct by you, other senior Department of Justice officials, lawyers, and law enforcement agents?

In other words, all those assurances that DOJ was conducting an investigation into this issue? Well those assurances were utterly cynical and false. DOJ’s IG, apparently, can’t investigate AGAG Read more →

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The “PDAG” Who Approved Harriet’s Immunity Had No Authority to Do So

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There are two big tidbits in the questions Leahy sent to AGAG to "pre-refresh" his memory before he testifies next week. The first is a question that seems to suggest that the "Principal Deputy Assistant Attorney General," Steven Bradbury, who wrote the opinion judging Harriet immune from compelled Congressional testimony was acting as Acting AAG of the Office of Legal Counsel, in spite of the fact that his nomination to be the AAG was already rejected by the Senate.

This Committee recently became aware of a memorandum dated July 10, 2007, and signed by Steven G. Bradbury as “Principal Deputy Assistant Attorney General” for the Office of Legal Counsel.  It contends that Harriet Miers, who is a former White House Counsel, is “immune from compelled congressional testimony.”  Pursuant to what legal authority did Mr. Bradbury issue this memorandum, and how is Mr. Bradbury’s issuance of this memorandum consistent with the Vacancies Act?  At the end of the last Congress, Mr. Bradbury’s nomination to serve as the Assistant Attorney General for the Office of Legal Counsel was returned to the President.

I’m not sure I completely understand this one, because Bradbury was, apparently, PDAAG when he was appointed to be AAG in Read more →

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Why Harriet??

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We all know that Harriet was a no-show for her date with HJC on Thursday. We all know that Harriet refused to testify based on some new opinions issued by DOJ. But I’ve seen almost no discussion that explores why BushCo decided to take such an inflammatory approach with Harriet’s testimony.

It seems there are two likely answers to that question–or rather, questions that need to be answered:

  • Why did Bush choose to ratchet up the subpoena fight at this point in time–what events allowed or forced him to do so?
  • Why did Bush choose to draw the line at Harriet, rather than (say) Sara Taylor?

As is my wont, I’ll start with a chronology.

June 13: Harriet subpoenaed

June 27: Paul Clement issues opinion asserting executive privilege–but not immunity

June 28: Fred tells Harriet’s and Taylor’s lawyers that they cannot turn over documents; tells Conyers and Leahy the same

July 9: Conyers mentions impeachment on the Sunday shows in response to a question on testimony

July 9: Harriet’s lawyer tells HJC she will show up and testify (apparently verbally)

July 9: Harriet’s lawyer tells HJC she cannot testify (in writing)

July 10: Conyers and Sanchez attempt to reconfirm Harriet’s appearance

Unknown date: Harriet asks Fielding to provide an opinion on whether she has to show at HJC

July 10: OLC issues an opinion stating that Harriet has immunity from subpoena

July 10: Fielding relays that information to Harriet’s lawyer

July 10, 7:15 PM: Manning relays that information to HJC

The takeaway from the chronology is that there appears to have been some last minute maneuvers on July 10–ostensibly at the request of Harriet and her lawyer–that resulted in her no-show (as compared to Sara Taylor’s limited show-and-don’t-tell).

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Sara Taylor Refuses to Agree Tim Griffin Had “Substantial” Experience

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I’m just now catching up on the Sara Taylor non-testimony (the webcast is still available here). And I find her to be interestingly sharp–in that she backs off of some points that the Republicans would like to put in her mouth.

There’s an exchange with Arlen Specter, for example, in which he prods her to say that Tim Griffin was very qualified to replace Bud Cummins (this happens just before and following the one hour mark). But she backs off the grandiose terms Specter wants her to use.

Specter: Mr. Tim Griffin was known to you from having served as the Deputy Political Director? Would you … you’re nodding yes …

Taylor: Yes, he was known to me, he was the Deputy Political Director and I had known him for quite a bit longer than that.

Specter: Mr. Griffin had extensive experience as a prosecuting attorney, correct?

Taylor never answers his prompt with a yes answer, affirming that she agrees he had "extensive" experience. Rather, she starts listing his experience, which doesn’t seem all that "extensive."

Taylor: My knowledge is that he had been a prosecutor, a federal prosecutor, for three years, in different jobs, I think two different jobs if my memory serves me correct. I also know that Mr. Griffin was a ten-year JAG officer in the United States Army [she’s referring to notes] where he was also an Army prosecutor.

So Specter prods her again, to add to her description of Griffin’s qualifications.

Specter: And he had served as an Assistant to the Special Prosecutor in the Cisneros, uh …

Taylor: I believe that’s correct.

Specter: So he had very substantial experience as a professional in the prosecution field.

Taylor: I believe he had significant experience.

But again, Taylor backs off Specter’s qualification, choosing her own word, "significant" rather than his"substantial."

The exchange is all the more interesting since, in the following exchange, Taylor claims that Griffin is "exceptionally qualified." (The whole thing is clearly Specter’s set-up to put the Griffin hiring in better light and refute McNulty’s testimony that Griffin Cummins [thanks folks] was fired solely to make room for Griffin, which may well be why Taylor agreed to testify.) Specter goes on to ask whether Taylor was closer to Griffin than McNulty–a sort of bizarre way of undercutting the outstanding allegations from McNulty that Cummins was fired just to make way for Griffin.

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And While We’re Talking about Taylors at the Center of the USA Purge

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281 days. That’s how long–by my admittedly rough count–Jeff Taylor has been serving as Interim USA for DC. He’s been serving roughly 21 days since George Bush signed a law that effectively did away with the PATRIOT appointment he currently serves under. Yet there he is, a former DOJ clique-member, Counselor to the Attorney General for four years, and before that Counsel to the Republican-led Senate Judiciary Committee.
Yet come Wednesday, when it comes time to talk about a contempt citation for Sara Taylor, Jeff Taylor is the one who will get to choose whether or not he will serve that citation.

Now, perhaps Pat Leahy knows Taylor and is confident he’ll serve SJC’s subpoenas. But I doubt it, because if so, I’m guessing Taylor wouldn’t have that "interim" before his name still.

So why is Jeff Taylor still serving? When do we get our new USA for DC? Because, in about four days, it’ll become crystal clear that appointing a Senate-approved USA is long overdue.

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Sara’s Sob Story

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Via Rawstory … boy, Sara Taylor is pathetic. Faced with the likelihood that the Senate will hold her in contempt when she blows them off on Wednesday, her lawyer offers no legal argument, but a plea for pity.

Until six weeks ago, Ms. Taylor was Director of the Office of Political Affairs in the White House. She began working on the Bush Presidential Campaign in 1999, at age 24. After the President’s election, she accepted a position at the White House. She is now 32 years old, having worked most of her adult life for President Bush. She is unquestionably loyal to the President and his agenda. At the same time, she recognizes the burden on any citizen to respect the Senate’s processes and to be responsive to its subpoenas.

[snip]

In our view, it is unfair to Ms. Taylor that this constitutional struggle might be played out with her as the object of an unseemly tug of war. She faces two untenable choices. She can follow the President’s direction, and face the possibility of a contempt sanction by the Senate, with enforcement through the criminal courts, an action that regardless of outcome, will follow her for life. Or, she can attempt to Read more →

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Libby’s Going to Try to Get Out of Probation, Too

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At least that’s what I’m wild-arsed-guessing from Libby’s latest addition to his legal team. From the docket:

NOTICE OF ATTORNEY APPEARANCE: Gregory Lawrence Poe appearing for I. LEWIS LIBBY (Poe, Gregory) (Entered: 07/06/2007)

Greg Poe is from the same firm as Lawrence Robbins (the guy who argued for bond and deigned to tell Judge Walton how Scalia would rule on the Appointments Clause appeal). He was added yesterday, just in time to settle the question of what happens to the supervised release of a felon whose prison sentence has been commuted.

And why would they bring in Poe to deal with this issue?

Greg has tried fourteen federal cases to verdict on behalf of criminaldefendants; he has presented oral argument in twelve criminal cases inthe federal courts of appeals; and he has successfully persuadedfederal district judges to vacate convictions in post-convictionproceedings.

[snip]

Greg is a Barrister in the Edward Bennett Williams American Inn ofCourt; a member of the United States Sentencing CommissionPractitioners Advisory Group; and a member of the National Associationof Criminal Defense Lawyers. [my emphasis]

Boy, they sure had the response to Fred Fielding’s little "goof" read at hand, didn’t they? Scooter Libby. Somehow he always manages to catch a break.

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Go Read Jeralyn

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I had a funny conversation about Libby’s commutation the other with a friend who has argued several cases before SCOTUS–he pointed out that since he defends real thugs whose prosecutions included irregularities, his clients don’t get considered for commutation. Like him, Jeralyn spends a lot of time dealing with clients who get none of the benefits accorded to Libby on Monday. Which means she has been writing some great, meaty posts on the topics. She has a great one today on the differences between the Marc Rich pardon and the Libby commutation.

I think it’s significant that President Clinton waived executiveprivilege for the hearing and allowed his aides who participated in theRich pardon discussion to testify, no holds barred.

Will Bush do the same next week?

She has a much linked post on the meaning of supervised release for Libby. And the one I meant to link but got caught up into events is this post, from her perspective as a defense lawyer, talking about how unjust Libby’s treatment is compared to the treatment of all the other defendants out there.

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