POGO has a review of the Senate bill passed Wednesday that will strengthen the independence of the nation’s Inspectors Generals. As it describes, John Kyl was able to water down some of the key provisions of the bill, but it does make some improvements. As someone who has struggled to find IG reports buried in DHS’ and DOD’s websites, for example, I’m particularly fond of this one:

All IG websites must be clearly and directly accessible from their agencies’ home pages, and IG reports must be posted within 3 working days of release.

No longer can agencies hide bad news by making the IG reports inaccessible.

I’m particularly intrigued, however, by one of the provisions that Kyl struck from the bill–a move to give DOJ’s IG authority to investigate the lawyers at DOJ.

Finally, Kyl’s amendment did away with Justice Department Inspector General Glenn Fine’s most cherished desire: that he be granted authority to investigate Justice lawyers accused of engaging in professional misconduct. Such allegations–as distinct from questions of fraud or abuse–are currently handled by the DOJ Office of Professional Responsibility (OPR), and Kyl, in a masterpiece of faint praise, announced that "there is no evidence that this Office’s reviews are anything less than adequate."

I’ve done posts on this here and here. The issue is important because, when Alberto Gonzales was attempting to spike any real investigation into the OLC authorization of the warrantless wiretap program and of the USA purge, he attempted to give OPR–and not OIG–the exclusive investigative authority. Recently, too, OIG had to refuse to investigate Yoo’s torture memos because it doesn’t have the mandate to conduct such investigations. As Glenn Fine explained the problem in testimony before the Senate:

Unlike all other OIGs throughout the federal government who can investigate misconduct within their entire agencies, the DOJ OIG does not have complete jurisdiction throughout the DOJ. Rather, the DOJ OIG can investigate misconduct throughout DOJ with one notable exception: the OIG does not have the authority to investigate allegations against DOJ attorneys acting in their capacity as lawyers – litigating, investigating, and providing legal advice – including such allegations against the Attorney General, Deputy Attorney General, and other senior Department lawyers. Instead, the DOJ Office of Professional Responsibility (OPR) has been assigned jurisdiction to investigate such allegations.

Effectively, in all other agencies, the agency lawyer can be investigated by the agency’s OIG. But in DOJ–where the lawyers are inventing specious justifications for torture and domestic surveillance–they are protected from such an investigation. And John Kyl wants it to stay that way.

One more note. The bill also requires that each OIG relies on the advice of an independent legal counsel, rather than the General Counsel of that agency. But John Kyl limited that provision, too.

Sen. Kyl also clarified that although IGs must seek advice from their own counsel, the agency’s general counsel will remain the chief legal authority within the agency.

Consider what this means for the OIG investigation of CIA’s interrogation methods, in which the John Helgerson determined that the interrogation methods used by the CIA amounted to cruel and in humane treatment. Once this bill becomes law, Helgerson will still be able to consult his own lawyers on the meaning of torture. But if CIA’s General Counsel says that cruel and inhumane treatment isn’t torture (relying, as it happened in fact, on an opinion written by a lawyer at DOJ’s OLC, the process of which could not be investigated by the independent DOJ OIG), then the CIA’s General Counsel’s view holds sway.

See how Kyl’s rollbacks work? The John Yoos and Steven Bradburys of the world remain immune from independent oversight at DOJ. And they can write opinions that the General Counsels of other agencies can use to tell their own IGs to fuck off.

The suggestion that Bob Kjellander was working with Rove to have Fitz fired is not new.

In a hearing before court began, prosecutors said they hoped to call Ali Ata, the former Blagojevich administration official who pleaded guilty to corruption yesterday, to the stand.

Assistant U.S. Atty. Carrie Hamilton said she believed Ata would testify to conversations Ata had with his political patron, Rezko, about working to pull strings to kill the criminal investigation into Rezko and others when it was in its early stages in 2004.

"[Ata] had conversations with Mr. Rezko about the fact that Mr. Kjellander was working with Karl Rove to have Mr. Fitzgerald removed," Hamilton told U.S. District Judge Amy St. Eve.

Back in the days when there was question whether Fitzgerald would be ousted in 2006 (before the USA purge broke), Chicago commentators regularly noted how badly Chicago pols–and Kjellander in particular–wanted to see Fitzgerald gone.

And there’s good reason to think he might be [fired], aside from the president’s non-assurance. One of the chief practitioners of Illinois establishment politics is Republican operative Bob Kjellander, who brags (whether true or not) about his friendship with Bush chief political strategist, Karl Rove. Despite Kjellander’s engineering Bush defeats in Illinois and other Midwest states, the White House (Rove?) thought he was pretty hot stuff and brought him to the Beltway where he is engineering who knows what political disaster.

Kjellander also will be credited with the coming GOP election disaster in Illinois, thanks to his help in selecting state Treasurer Judy Barr Topinka to run against incumbent Blagojevich. She’s a dear lady, a treasured "moderate," but not a gusty independent willing to stand up to the political establishment.

The point is that Kjellander (pronounced Shelander), a Republican national committeeman who has received $800,000 in unexplained fees through a state bond-borrowing deal engineered by Democrat Blagojevich, is no fan of Fitzgerald’s either. No one, in other words, in the political establishment in Chicago or Washington, is pushing for Fitzgerald’s reappointment. [my emphasis]

And after news broke last year that Fitzgerald had been on the firing list, at least one Chicago commentator predicted that Kjellander was the reason, and not the Plame case. (This is a March 21 Chicago Trib article by John Kass behind the firewall, but here’s a blog post that cites most of it.)

How many conversations did Karl Rove–the political Rasputin of the Bush White House–have with top Illinois Republicans about U.S. Atty. Patrick Fitzgerald?

Ten? Fifty? None?

Did Rove speak directly to Big Bob Kjellander, whom Rove engineered into the job of treasurer of the Republican National Committee?

Answers might tell us why Fitzgerald, honored in 2002 as one of the top prosecutors in the Justice Department–and the fed most feared by the bipartisan political Combine that runs Illinois–was abruptly downgraded in March 2005.

[snip]

Conventional wisdom from Washington is that Fitzgerald fell out of favor with the Republicans because of his pursuit of the CIA leak case, which led to the recent perjury conviction of Lewis "Scooter" Libby, former chief of staff to Vice President Dick Cheney.

But why not consider an alternative?

Just as that March 2005 memo downgrading Fitzgerald was making its way to the White House, Fitzgerald’s office in Chicago was proceeding in a fascinating political corruption probe involving alleged kickbacks requiring state approval for the construction of hospitals.

That case would mushroom into Operation Board Games, revealing bipartisan political influence in hundreds of millions of dollars invested through state pension funds.

There have been so many distractions that you’re bound to have forgotten about Operation Board Games. The distractions include City Hall’s Olympic dreams that won’t cost taxpayers a dime and whether Lord Conrad Black’s wife thinks reporters covering her husband’s federal fraud trial are a bunch of vermin and sluts. With all this talk of Olympics and sluts and so on, you probably haven’t had time to figure the Fitzgerald timeline.

But as that 2005 memo was sent to the White House, Fitzgerald was formally unmasking the Combine in what would later become Operation Board Games.

[snip]

One fellow in the federal documents of the Operation Board Games case was listed as "Individual K." And his buddy appeared several times in those same documents as "Individual A," for Alpha.

Individuals A and K have not been indicted. But the Tribune identified them as Big Bob Kjellander (pronounced $hell-ander) and his buddy, Big Bill Cellini, the political boss of Springfield.

Kjellander is the Republican committeeman of Illinois who flaunts his friendship with Rove and who recently resigned as treasurer of the Republican National Committee. Kjellander also represented the famous Carlyle Group before the teachers’ pension fund board and he received $4.5 million in questionable consulting fees.

Did Kjellander discuss Fitzgerald with Rove? I don’t know.

In other words, knowledgeable observers at least suspected–as Fitzgerald’s presence on the firing list came to light last year–that Kjellander, and not Rove in Plame, was the cause. (Me, I think both might have been the reason Fitzgerald made the firing list; far be it for Rove to be choosy about his reasons to fire a USA.)

Since the suggestion is not new, I’m not so much surprised by the announcement as I’m interested in the way the USA NDIL introduced this evidence and the implications it has for the whole investigation of politicized prosecutions.

You see, I believe–based on somewhat attentive observation of Patrick Fitzgerald over time–that introducing this kind of evidence is one of his favorite MOs. He introduces information that pertains to a case but is actually much more valuable for the way it points to much graver criminal issues that Fitzgerald is not in a position to address at a given moment. Thus, Fitzgerald introduced a great deal of evidence to show that Dick Cheney had, indeed, ordered Scooter Libby to leak Valerie Wilson’s identity. Because of constitutional reasons and pixie dust reasons and the inadequacy of Judy Judy Judy’s recall, he was not able to indict either Libby or Cheney on IIPA. But he got the evidence out there that that is, indeed, what happened. Unfortunately, Congress and the press were too busy trying to get Fitzgerald to release grand jury information that they failed to look closely at the information already in the public domain, and the information was never used to good effect.

I suspect that Fitzgerald has figured out the limits of Congress and the Press, because this time he has made it a bit easier. Golly, the press actually even reported on a non-trial conference, something that rarely happened in the Libby trial.

Fitzgerald’s office (though not Fitzgerald personally) has just said to John Conyers, "Hey, I see you’re still looking into politicized prosecutions. Well, here’s a witness who can testify that a Rove crony was working with Rove to get Fitzgerald fired–just before Fitzgerald almost got fired." This adds another witness–like Dana Jill Simpson–who is willing to testify that Rove got personally involved in prosecutions affecting his political allies. But it also brings someone from the requesting side to the fore–someone who (unlike the GOP cronies in Washington who got John McKay fired and unlike the GOP cronies in NM who got Iglesias fired) is apparently willing (and presumably has already signed an affidavit to the effect) to testify that Karl Rove entertained these demands for firing seriously. Conyers will, undoubtedly, take a few days to respond (he’s not so quick as Henry Waxman), but I imagine he will respond.

This will make it much easier demonstrate the criminal behavior needed to successfully subpoena Karl Rove to testify about this case, about Siegelman, and about Iglesias. It is, presumably, someone who is willing to go on the record to say that Karl Rove willingly intervened to fire a USA with the clear intent of stopping an investigation in one of Rove’s allies.

Notice that Rove’s lawyer Robert Luskin was very quick to issue a very insistent denial.

But Robert Luskin, Rove’s attorney, today issued an unequivocal statement about all of this to the Tribune on behalf of Rove, former deputy chief of staff to President Bush, architect of Bush’s presidential campaigns and a private consultant in Washington now.

"Karl has known Kjellander for many years,” Luskin said, "but does not recall him or anyone else arguing for Fitzgerald’s removal. And he (Rove) is very certain that he didn’t take any steps to do that, or have any conversations with anyone in the White House — or in the Justice Department — about doing anything like that.”

Ha ha! Gold Bars! You thought you had beaten Fitzgerald once and for all, didn’t you? Ha. Ha!

Of course, there’s one more witness to this issue: Kyle Sampson. Now, even in HJC’s preliminary report on the USA firings, there was clear evidence that cliquemembers at DOJ conspired to cover up the real reasons behind the firing of David Iglesias. As Glenn Fine reportedly draws near to finishing his investigation into the matter, those who participated in that cover-up may be getting antsy about their own role in the cover-up. I don’t know whether such antsiness will or has made Kyle Sampson recall in more detail how or why he suggested Patrick Fitzgerald be fired. But I would imagine there is about to be a whole lot more pressure for him to remember those details.

Karl says he’ll testify.

As Governor Siegelman states, bring him in, let him swear on a bible and either testify or lie under oath.

Rove has, of course, reportedly lied under oath on two other occasions, once in Texas and once in the CIA leak case. He’s probably thinking "three’s a charm."

But let’s do it, this time, in front of the teevee cameras. I’m sure Artur Davis–of Alabama–would welcome Karl’s testimony. And while he’s there, you might ask him all the questions about the USA purge he has refused to answer.

Now that we know that Dick Cheney’s lawyer was working DOJ to make sure that James Tobin would not be indicted until after the 2004 election, it’s probably worth returning to another few aspects of this story that involve the White House.

First, recall that the RNC paid for Tobin’s legal bills–to the tune of $3 million, most of that to Cheney’s lawyer’s firm.

The Republican National Committee, in turn, has paid $3 million in legal fees in criminal and civil cases growing out of the controversy. The RNC has paid at least $2.8 million to Williams & Connolly and other firms for Tobin’s defense, and about $150,000 to Covington & Burling to defend the RNC in a civil suit brought by the New Hampshire Democratic Party.

The RNC’s legal fees exceed the $2.4 million spent by Sununu, the winner of the U.S. Senate race.

Also recall that the NH GOP was on the phone with the White House just as the phone-jamming scandal was blowing up in its face.

Most tantalizingly to Democrats, evidence filed in Tobin’s trial in December shows 22 phone calls from Tobin to the White House between 11:20 a.m. Election Day, two hours after the phone jamming was shut down, and 2:17 a.m. the next day, four hours after the outcome of the election was announced.

Obviously, both details would seem to point to direct White House involvement. But conveniently for the White House, Ed Gillespie hid the White House’s direct involvement by claiming he made the decision to have the RNC pay Tobin’s bills.

Former RNC chairman Ed Gillespie decided to pay Tobin’s legal fees. "He was accused of doing something in his capacity as an RNC consultant, and we believed him to be innocent," Gillespie said. While the RNC had no contractual obligation, "it’s the custom, not written anywhere, that you covered your people," Gillespie said.

Gillespie said he informed the White House, but did not seek formal approval, before authorizing the payments. Mehlman said that under his chairmanship, consulting contracts now explicitly declare that independent contractors must be prepared to pay their own legal costs in civil and criminal cases.

Though, the New Hampshire Union Leader (from their paid archives; story date is May 19, 2006) notes that Gillespie’s story about whether he informed the White House before or after he authorized the payments changed a bit.

The former Chairman of the Republican National Committee remembers telling someone at the White House that he had decided to have the RNC pay the legal defense bills for convicted phone-jamming conspirator James Tobin, but he can’t remember who.

Ed Gillespie told the New Hampshire Union Leader yesterday he informed the White House after he decided to authorize payment.

The Washington Post reported on Wednesday that Gillespie told its reporter that he had "informed the White House, without seeking formal approval, before authorizing the payments."

Gillespie told the Union Leader the two accounts were "consistent" because he decided to authorize the payments before telling the White House and actually authorized the payments after telling the White House.

[snip]

Gillespie yesterday told the Union Leader he could not remember who at the White House he informed of his decision to pick up Tobin’s legal bills. "I’m not going to guess," he said. "It was years ago, but as a matter of routine, I would have told somebody over there."

If someone at the White House had expressed displeasure with his decision, Gillespie said, "It was too late. I had made the decision and they were not involved in it."

Gillespie’s story stank, long before the news that Cheney’s own lawyer was involved in the defense, and long before Gillespie got brought in to replace Dan Bartlett and Karl Rove in the era of exploding scandals. But now that we know Cheney’s lawyer was involved, it gets stinkier.

One thing that’s unclear is when Gillespie made this decision–in 2002 or 2004? In 2002, Gillespie was working for Liddy Dole. Gillespie was appointed RNC chair in July 2003 (and served until January 2005). So if he made the decision to pay for Tobin’s defense while Chair (a reasonable assumption), then it may well have been in 2004, just as the election season was heating up. In other words, this conversation that Gillespie conveniently can’t remember? It may well have been a discussion held during the campaign to pay Dick’s personal lawyer (and friends) to postpone the indictment until after the election.

Finally, there’s this tidbit from McClatchy’s story.

On Oct. 1, 2004, Hinnen got the green light to prepare an indictment, but was directed to first give Tobin lawyer O’Donnell a chance to make his client’s case. O’Donnell requested delays and then told Hinnen, Parsky and other senior officials that an unidentified lawyer had advised Tobin that the jamming was legal. [my emphasis]

I irresponsibly speculated that this unidentified lawyer is Ben Ginsberg, who was Bush-Cheney’s outside Counsel in 2000 and 2004–until he had to step down in 2004 when it was revealed he was working for the Swift Boaters at the same time as he was advising Bush-Cheney, which amounts to illegal coordination between the two campaigns. He also regularly represents the RNC and the NRSC (remember, the election in question was the Sununu Senate election). In short, Ginsberg is both the kind of guy who is happy to straddle between official campaigns and dirty tricksters, as he did in 2004. And he’s a man with a proven appreciation for dirty tricks. Then again, perhaps the person who approved the program was in the White House–though that would be astonishing even for the Bush thugs.

So imagine, if you will, that either Ben Ginsberg or someone very like him had given Tobin the legal green light to do the phone jamming. It would sure change the implications of that $3 million legal defense the RNC bought Tobin. Not only would that $3 million be an attempt to protect whomever it was at the White House involved in the scandal. But it would protect the decision-makers who approved of the phone jamming ahead of time–people who likely were and are central figures in RNC circles.

John Conyers is calling on DOJ to start answering some questions about this investigation. Which may well implicate top Republicans faster than the USA Purge, not least because it goes through the RNC to get to the White House. 

I feel like I’ve gone back through time. We’re back to talking about Plame. And nolo discovered another USA Purge document dump. There’s a potentially damning email in here–all redacted (I’ll return to that in a later post). But there’s also proof of something we’ve long suspected. Congressional Republicans were getting talking points from Gonzales’ DOJ to use in hearings on the USA purge.

Or let me be more exact: the White House (in this case  Christoper Frech) is making sure that the Office of Legislative Affairs at DOJ (in this case, Richard Hertling) is giving the Republicans in the House Judiciary Committee tips on strategy for the hearing with four fired USAs.

This is what it looks like when the White House (which isn’t supposed to be involved in this scandal, remember) makes sure DOJ prepares the HJC Republicans.

Frech:  Good morning Richard, regarding the Tuesday hearing with the USAs, have you had any conversation with the committee and specific members on strategy, etc?

Hertling:  We have had some preliminary conversations and will be meeting internally to finalize questions and strategy to provide HJC Rs.  They will get all of that later today.

No wonder the Republican Congress never exercised any oversight over the Bush Administration. The Bush Administration never gave them  the script so they could do so. 

For the record, I heartily approve of both of Newsweek’s recent pundit hires–Rove and Markos. After all, news outlets dump a lot of money to pay pundits whose predictions turn out to be wrong year after year. So why not hire two guys who at least have contributed historic innovations to elections–the guys who execute campaigns, rather than talk about doing so? Plus, there’s a wonderful bit of symmetry here. Rove, direct mail, and the Republican party represent the past. Markos, online, and the Democratic party represent the future. I even love that it pits a fat white guy from Utah against a multicultural guy living in the Bay Area.

So I’m not necessarily gleeful with the news that Time Magazine rejected Rove’s advances, at least not because it might validate the opinion that Rove was a poor choice for Newsweek. Rather, I’m curious by the terms by which Time rejected Rove.

For its part, Time magazine said nothing publicly about Rove’s arrival at Newsweek, but a well-placed source told me that Bob Barnett (every Washington literati’s favorite lawyer, including Bill Clinton) had traveled to the Time-Life building on Sixth Avenue to offer Rove’s services before Newsweek snared them. Time‘seditors apparently felt the cost/benefit analysis wouldn’t be in theirfavor if they embraced the man who has done more than anyone to keepthe spirit of Joe McCarthy alive and well in American politics. (Read Joshua Green’s definitive profile from the Atlantic in 2004.) "Time thought this wouldn’t be like hiring George Stephanopoulos," my source explained. "They think Karl is essentially like an unindicted coconspirator in a whole string of felonies."

Well, yeah, I wonder whether Newsweek has done its due diligence on Rove. After all, it would suck for them if the Abramoff scandal USA Purge scandal email scandal wholesale politicization of government scandal  anything arose to hurt Rove’s brand.

But I’m most amused that Time magazine–the company that spent very large chunks of cash to withhold  details about Rove’s nefarious leaking of Valerie Wilson’s name from Patrick Fitzgerald–would call him "an unindicted coconspirator in a whole string of felonies." Time, after all, probably could have swung the election in 2004 (and they thought they could, too), had Matt Cooper simply revealed that Karl Rove leaked Valerie Wilson’s identity. ("I’ve said too much already," Rove said.) That would have saved the American public from at least one out of a string of felonies.

So nice that Time magazine takes this moment to object.

Even more than Mukasey’s woozy answers on waterboarding, I’m disturbed by his opinions on executive privilege and contempt, partly because I suspect Mukasey would make sure no waterboarding happened going forward, and that his answers on waterboarding are designed primarily to avoid putting those who waterboarded–or signed off on it–in the past at legal risk. But Mukasey’s opinions on executive privilege appear designed to protect the White House from any consequences for the USA purge. They appear ready to shore up the firewall preventing further investigation of Rove and Bush.

When Pat Leahy asked Mukasey about executive privilege, Mukasey suggested that DOJ couldn’t prosecute Harriet or Josh Bolten or Turdblossom for contempt, because they relied on a DOJ opinion in deciding not to testify.

LEAHY: Judge, I want to go back to your last answer to me yesterday. And you and I discussed this a little bit outside.

Yousaid a U.S. attorney could only refer a contempt citation of Congressto a grand jury as required by law if he or she believed reliance onthe president’s executive privilege claim was unreasonable.

Ihave some trouble with that. I don’t think that rules on claims ofprivilege when they’re raised by — whether they’re reasonable, butwhether they’re valid — so let’s talk a little bit about this. IfCongress were to refer a contempt citation — and there is a realprobability there will be some as a result of the U.S. attorney scandal– you’re indicating that the U.S. attorney would undertake anindependent analysis, assess the claim of privilege, in determiningwhether to bring the matter before a grand jury.

Is that right?

MICHAEL MUKASEY, NOMINATED TO BE U.S. ATTORNEY GENERAL

Well, let me flesh out a little bit what I understand the process to beand to have been, and maybe put a little bit of flesh on the bones ofmy answer.

As I understand it, when the White House gets asubpoena, they refer it to the Department of Justice, as, in fact,happened here, because I was shown the letter from Paul Clementrelating to the assertion of the privilege.

If the White Housethen, relying on that letter, I mean, if the president, since he is theonly person who owns the privilege, if he, relying on the JusticeDepartment, asserts the privilege and there is, nonetheless, a contemptcitation, we’re in the position where the Department of Justice wouldhave to prosecute someone who followed the advice that originated withthe Department of Justice.

I am told that there are not one,but two, opinions of the Office of Legal Counsel, one of them from TedOlson, and the other from a man I know and whose name I can picture,and I can’t come up with it now, who served in the Clintonadministration, who I referred to yesterday. I’m sure I’ll think of itafter I leave here.

But, anyway, there are two OLC opinions, saying that that would not be appropriate and…

LEAHY: What would not be appropriate?

MUKASEY:That for the U.S. attorney to prosecute someone for a contempt, basedon reliance on an opinion letter that originated in the Department ofJustice, would not be appropriate.

So basically, Mukasey is arguing that DOJ can’t enforce contempt of Congress, because DOJ has already told the White House officials that they won’t be held in contempt. If you look at his written answer to this question, you see why–if DOJ told the White House official they could invoke executive privilege, there would be no way to prove criminal intent, and therefore no reason to call a grand jury.

Here’s my favorite exchange from Stanford Lawyer’s interview of Carol Lam (h/t bmaz):

YOU SERVED UNDER BOTH JOHN ASHCROFT AND ALBERTO GONZALES.  HOW DID THAT TRANSITION FROM ASHCROFT TO GONZALES AFFECT YOUR LIFE AND YOUR DUTIES AS A U.S. ATTORNEY?

The structures of the department were in place, so I didn’t expect a lot of impact from the change in attorney general under the same administration. There are a great many traditions that have built up over the years at the Justice Department that should carry the institution forward on its own momentum. The people come and go, but the institution carries on. So I was surprised by how much change there was.

Note carefully. The question was "How did the transition from Ashcroft to Gonzales affect your life?" To which Lam answers "It shouldn’t have–all the structures of DOJ should have prevented it–but it did, to a surprising degree." Not really an answer to the question, but telling nonetheless.

The only place where Lam really provides any hint of what those changes are is when she describes DOJ having a "straight shot" to the White House.

What these events did show me is that you can’t have a Department of Justice that’s a straight shot to the White House, and that was really the problem here.

We’ve been told the investigation into the USA Purge is ongoing. And Senator Whitehouse’s bill to expose the involvement of the White House in DOJ matters passed out of SJC with large bipartisan support. But we don’t yet know the extent of the White House’s involvement in everyday DOJ operations. And Carol Lam isn’t really telling about those details, either.

This is my outtamyarse guide to the potential replacement candidates for AGAG floated so far:

Michael Chertoff: I think someone in the Administration floated Michael Chertoff as a replacement candidate before that someone really thought things through. Sure, Chertoff has been approved by the Senate before. But that was before 11/7–and we know that 11/7 changed everything. Not to mention Katrina. Part of me wonders whether the urge to make Chertoff AG was just an attempt to get him out of DHS, where he’s screwing things up royally. And once Fran Townsend refused to take the DHS job as Chertoff’s replacement, the Administration was left with no way to make the transition gracefully and has likely abandoned the idea.

Laurence Silberman: Democrats may be weak-kneed. But there’s no way (I hope) that they’ll accept Silberman as a replacement candidate for AGAG. Silberman has been the fixer for Republican scandals going back to Watergate, with a particularly prominent role in Iran-Contra. Allowing Silberman to serve as AG would be getting rid of an incompetent hack and replacing him with a competent, more dangerous hack.

Ted Olson: Another of the candidates floated long ago, when BushCo would have been nominating a replacement from a position of strength, rather than one of desperation. Since that time, the curious circumstances around Debra Wong Yang’s hiring as Olson’s close associate at Gibson Dunn have arisen; that involves Olson in the USA Purge in a tangential enough way that you’d think it’d prevent him from being confirmable. Unfortunately, I wouldn’t put approving Olson beyond the weak-kneed Democrats.

Larry Thompson: Thompson was Deputy Attorney General when BushCo first set about shredding the Constitution, which is a major strike against him. It’s unclear whether Thompson was actually read into many of the most egregious programs. But still, one would hope that we wouldn’t approve anyone (besides Jim Comey) who has been through the Bush DOJ already. Unfortunately, early on in this process, Chuck Schumer listed Thompson as an acceptable choice for him as a replacement AG, though it has been reported that Thompson is uninterested in leaving his cushy job at Pepsi to clean up Gonzales’ mess.

Paul Clement: Clement’s stock as a replacement seems to be rising, with lots of folks hearkening back to profiles quoting people from both sides of aisle complimenting Clement for his intelligence. But note closely what these profiles hail Clement for: his ability to argue either side of an argument very effectively. That’s great when he’s defending Russ Feingold’s Campaign Finance before SCOTUS. But in the position of Attorney General, he would be arguing Bush’s side of the argument exclusively. Furthermore, Clement has already proven himself willing to rewrite the Constitution in the name of defending BushCo’s executive privilege claims. Lucky for us (because I suspect Democrats would pass his nomination), appointing Clement as AG doesn’t solve BushCo’s gaping holes in every management position at DOJ, since they’d just have to find another Solicitor General. So I suspect we will be spared this sophist as AG.

George Terwilliger: I find it curious that the name receiving most attention–after BushCo realized what a disaster appointing Chertoff would be–is one of Poppy’s guys, with close ties to Bush family consigliere James Baker. Terwilliger has been specializing in white collar defense of late, which might be considered a huge plus to those trying to get through the rest of Bush’s term with no indictments. Terwilliger’s ties to Republican scandal fixing are more remote than, say, Silberman. He was on the Bush Recount legal team. And, more ominously, Terwilliger oversaw the BCCI settlement, which saved the US some money in bailouts, but probably also increased the comfort level of the Saudis who had bankrolled the giant money-laundering scheme. I can’t imagine the Democrats opposing Terwilliger in force, which is probably why he’s a leading candidate.

Michael Mukasey: Mukasey is the former senior judge in SDNY (so I’m hoping maybe our local expert on that area might pipe in with an opinion) and he sounds like–given the options–a pretty good choice. Most notably, Mukasey took a "split the baby" position on an early Padilla decision; he ruled that Bush could designate him an enemy combatant (a decision that did not stand on appeal), but he also insisted that BushCo had to allow Padilla to see lawyers. I suspect that his name has been forwarded by the Democrats, most likely Chuck Schumer, who has supported him for a SCOTUS appointment as well. Which probably means his name is floating out there solely because Democrats are floating it, and not because BushCo is giving it serious consideration.

Marty Lederman notes that Cheney’s latest dodge includes a reference to the ruling that limits Congress’ oversight over the Executive strictly to those areas where it pertains to legislation. From that, he argues that Cheney’s response was premised on the belief that FISA itself is an illegal restriction on the Executive.

Finally, the letter lists numerous reasons whythe VP’s office might not release the requested documents. The secondof those reasons is this:

The Office of the Vice President reserves the limitations on congressional inquiries set forth in Barenblatt v. United States, 360 U.S. 109 (1959), which makes clear that the power to inquire extends no further than the power to legislate.

Now,I happen to think that this so-called "limitation" on congressionalinquiries is not nearly so clear: Many of the earliest legislativeinvestigations were not for the purpose of designing statutoryamendments, but were instead "only" to investigate wrongdoing ormalfeasance in the Executive branch; and the better view is probablythat Congress has at least some such broad investigative power,unrelated to its lawmaking functions. (The Court has even indicatedthat Congress has an important interest in Executive branchtransparency simply in order to facilitate "the American people’sability to reconstruct and come to terms with their history." Nixon v. Administrator, 433 U.S. at 452-453.)

Buteven if it were the case that Congress can only investigate in areaswhere it can legislate, . . . so what? Such an objection would only bemeaningful in the context of this subpoena if there were some question about Congress’s power to legislate with respect to the relevant Executive branch conduct. 

Sothink about what the VP’s letter is suggesting — that perhaps Congresscan’t legislate on the topic of the government’s domestic electronicsurveillance!

This is, I think, a fairly audacious assertion tobe making at this late date. After all, just a few days ago thePresident himself insisted that Congress legislate forthwith on thisvery subject, and then showered praise on Congress for enacting the "Protect America Act," without suggesting any constitutional disability.

Whatthe letter is getting at here, of course, is the Vice President’slongstanding view that FISA is unconstitutional, and that Congresssimply can’t regulate the Commander in Chief’s collection ofintelligence. In other words, Who Needs the Protect America Act?:Nothing would or could stop us from warrantless surveillance, anyway.

Lederman may be correct in this particular instance. But his conclusion does not necessarily follow from the available evidence. As I have repeatedly shown, the Administration has made precisely the same argument when Congress subpoenaed testimony relating to the USA purge. And as with the warrantless wiretapping program, the claim that Congress had no legislative interest in the matter at hand came after the Administration had very happily accepted the legislation Congress had passed on precisely that matter (in the case of USA Purge, the legislation was the provision of the PATRIOT Act that gave the Attorney General the power to appoint interim USAs).

But unlike the FISA case Lederman examines, there can be no dispute–not even from the Unitary nuts–that Congress has the authority to legislate on interim USAs. The authority is inscribed in the Constitution. Nevertheless, the Administration wanted to contest Congress’ legislative interest in it anyway.

So while Lederman may be right, I don’t think he is. I think the Administration is making a grander argument, one that makes an expansive claim that Congress cannot legislate away any authority enjoyed by the Executive, even one limited by the Constitution.