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Conyers (et al) to Archivist: How Successful Were They at Destroying Evidence?

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I’m unsurprised that John Conyers, Howard Berman, Jerry Nadler, and Bill Delahunt have written to Hillary Clinton asking for copies of Philip Zelikow’s dissent to Steven Bradbury’s torture memo.

Despite the reported effort he describes to destroy all copies of the memorandum, Professor Zelikow nevertheless believes that "one or two [copies] are still at least in the State Department’s archives."

Of course one of the Committees was going to get this document. 

I’m a lot more interested in their letter to the acting Archivist, asking for any copies in the George W Bush archives.

While we have requested this memorandum from the State Department archives, any copies available from the George W. Bush records are also necessary to determine as completely as possible the full circulation of this important document.

That’s because if the memo isn’t there, then not only is it suggestive of criminal intent, but it also violates the Presidential Records Act. In addition to the memo itself, they ask for:

(2) Copies of any "documentary materials" as defined in the President Records Act, that are related to or reflect any effort by an official of the Bush Administration to collect, destroy, or impede the preservation or retention of this memorandum, including records of any National Security Council meetings or National Security Council Deputies meetings at which the memorandum was discussed.

As you know, the National Security Council is a component of the Executive Office of the President, and its records are in almost all cases President Records which the Act requires to be preserved. Thus, depending on the precise circulation of Professor Zelikow’s dissenting memorandum, the effort he describes to "collect and destroy all copies" of the memorandum raises serious questions of a possible violation of, or conspiracy to violate, the Act, or another breach of federal law.

(3) Copies of any "documentary materials," as defined in the Presidential Records Act, that mention or refer to the Zelikow memorandum.

[snip]

… the requested documents may shed light on the adequacy and completeness of the former Administration’s consideration of these issues over time. [my emphasis]

Well, the normally careful David Addington (if that’s who told Zelikow to destroy the memo) got himself into a pickle with this one. 

The HJC Agreement with Rove and Miers

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Here’s the written agreement between HJC and the Bush Administration for Rove and Miers’ testimony. Some highlights:

The House Judiciary Committee (the “Committee”) will interview Karl Rove and Harriet Miers, but there will be no additional interviewees / witnesses (subject to the one exception [possibly William Kelley, who has reportedly been subpoenaed in the probe on this]). 

On this, I wonder whether there isn’t someone else in the White House who was the real fulcrum of the effort? Rove’s denials have always been couched to say he didn’t talk to DOJ, but leaving open the possibility that someone else did (at least on these issues). I wonder if they’ve included this requirement to protect that person?

The scope of the interviews will be limited to: (1) facts relating to the evaluation of, decision to dismiss, or decision to replace the former U.S. Attorneys in question; the alleged decisions to retain certain U.S. Attorneys; and any allegations of selective prosecution related thereto; and (2) testimony or representations made by Department of Justice officials to Congress on the U.S. Attorneys matter. For the period beginning on March 9, 2007 (the date of the Committee’s first written demand for information from the White House), interviews will not include the content of conversations involving: (i) Mr. Rove and members of the White House Counsel’s office; or (ii) Ms. Miers and members of the White House Counsel’s office. In the case of Mr. Rove, the interview also will include facts relating to the prosecution of Alabama governor Don Siegelman.

I’ve asked whether bullet (1) includes the alleged attempt to fire Pat Fitz–will let you know if I hear.

As to the rest–they’ve clearly carved out the White House Counsel Office, presumably to protect Attorney-Client privilege. Bill Clinton and his blow job, of course, enjoyed no such privilege.

As to official privileges, counsel will direct witnesses not to respond to questions only when questions relate to communications to or from the President or when questions are outside the scope of questioning set forth above.

Regarding the David Iglesias firing, of course, there are allegations that Bush intervened directly to give the order to fire him. Read more →

Breaking: Turdblossom and Harriet to Testify

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And, just as importantly, the notion of Absolute Immunity dies a well-deserved death (via email).

In an agreement reached today between the former Bush Administration and Congressman John Conyers, Jr. (D-Mich.), Chairman of the House Judiciary Committee, Karl Rove and former White House Counsel Harriet Miers will testify before the House Judiciary Committee in transcribed depositions under penalty of perjury. The Committee has also reserved the right to have public testimony from Rove and Miers. It was agreed that invocations of official privileges would be significantly limited.

In addition, if the Committee uncovers information necessitating his testimony, the Committee will also have the right to depose William Kelley, a former White House lawyer who played a role in the U.S. Attorney firings.

The Committee will also receive Bush White House documents relevant to this inquiry. Under the agreement, the landmark ruling by Judge John Bates rejecting key Bush White House claims of executive immunity and privilege will be preserved. If the agreement is breached, the Committee can resume the litigation.

Chairman Conyers issued the following statement:

"I have long said that I would see this matter through to the end and am encouraged that we have finally broken through the Bush Administration’s claims of absolute immunity. This is a victory for the separation of powers and congressional oversight. It is also a vindication of the search for truth. I am determined to have it known whether U.S. Attorneys in the Department of Justice were fired for political reasons, and if so, by whom."

You think maybe Rove’s lost his 5 time’s a charge charm with perjury?

Update on timing: The Committee is going to get the documents it had requested and read them before they do the interviews with Harriet and Karl. And the interviews will be done by staffers, with the option of doing a public hearing with questions from Congresspersons if that seems useful. So the timing for the moment seems to be driven by how quickly they get documents. 

Update: Pelosi does a victory dance for the authority of Article I (via email):

The agreement for Karl Rove and Harriet Miers to testify upholds a fundamental principle: no one is above the law and Congressional subpoenas must be complied with.

As public officials, we take an oath of office to uphold the Constitution. It is the institutional duty of Congress — as an independent branch — to Read more →

Will the House Hold Rove in Contempt before March 4?

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Just before I disappeared for a week, John Conyers sent Karl Rove a sternly-worded letter insisting Rove show up for his deposition today.

I also cannot agree to your request for a delay to accommodate Mr. Rove’s schedule. As you know, the deposition was originally scheduled for February 2. On January 29 I in good faith acceded to your request for a delay since you were scheduled to be out of town at the time and requested more time to prepare. I also notified your office of the new February 23 date at that time. Thus, absent an actual commitment by Mr. Rove to comply with the subpoena, I am not in a position to agree to yet a further delay. In essence, given Mr. Rove’s public statements that he does not intend to comply with the subpoena, I am puzzled as to why Mr. Rove needs a mutually convenient date to appear.

Well, the blogger formerly known as Kagro X reports that Rove indeed blew off the House Judiciary Committee (for what must be the third or fourth time) today (h/t Petrocelli).

I find that interesting for several reasons. First, remember that Conyers sent that sternly-worded letter at a point when HJC was already negotiating with the Obama White House about what to do with the Miers/Bolten suit.  

Next, consider some of the other language Conyers used in his sternly-worded letter.

Finally, conducting a voluntary deposition under these circumstances [limiting testimony to the Siegelman witch hunt and excluding the US Attorney firings and other politicization issues] could simply serve to further delay matters beyond the nearly two years I have been waiting, since the Committee could not then be in a position to utilize contempt or other enforcement mechanisms in response to any improper refusal to answer questions. [my emphasis]

Conyers was clearly thinking about contempt when he wrote that letter–at a time when he was in negotiations on the Miers/Bolten suit.

Finally, as I reported earlier, Obama got the second week of his requested two week delay for his brief on the Miers/Bolten suit. HJC agreed to go along with that delay.

Now, I have no reason (besides noting the coincident dates) to believe that there’s a connection between the additional week extension on the Appeals Court brief and any response to Rove’s latest contempt for an HJC subpoena.

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And Now the Appeals Court Jumps in the Fray

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This is weird. The DC Appeals Court apparently doesn’t want to give Obama time to make a deal between Bush’s minions and the House Judiciary Committee.

After specifically invoking the benefit of "permitting the new President"… "to express [his] views on the merits of the lawsuit" between the House Judiciary Committee and Harriet Miers and John Bolten last fall when it stayed Judge Bates’ ruling knocking down Absolute Immunity, and in spite of the fact that said new President asked for two additional weeks to submit his brief on the debate over Harriet Miers’ testimony, and in spite of the fact that HJC agreed to that two week delay, the DC Appeals panel has ordered DOJ to submit its brief by February 25, half the time the Obama Administration requested. 

That’s weird for several reasons. Normally, when the legislature and the executive get into a squabble, the courts like to have them try to resolve the squabble on their own. One of the reasons Obama had wanted two weeks was to try to broker a deal himself. Given reports that such a deal is taking some time, the order to submit briefs this Wednesday makes it much less likely that HJC and Bush’s minions will make a deal before the Appeals Court gets involved again.

The one-week extension also guarantees that Obama will submit his brief before Dawn Johnsen takes over at OLC; her confirmation hearing is scheduled for the same day as the new deadline for the brief. One way Obama could have responded to this suit would be to simply withdraw Steven Bradbury’s audacious memo expanding Absolute Immunity, but that won’t happen before Johnsen takes over.

Now, I have no idea why the Appeals Court is so antsy to get involved here, but there are several possibilities.

It’s possible that they’ve seen Greg Craig’s statement explaining that Obama will not "do anything that would undermine or weaken the institution of the presidency" and they worry that Obama will craft a deal that preserves Absolute Immunity, and they want to prevent that from happening (though why they think John Conyers would agree to such a deal, I have no clue).

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Are Your Members of Congress Supporting an Investigation into Bush Crimes?

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As many of you have noted, at least 62% of Americans support some investigation into Bush Administration crimes (whether a criminal investigation or a truth commission). Do your members of Congress agree with the majority of Americans who refuse to ignore the past?

Here’s a list of those members of Congress who have voiced some support for an investigation. If your members of Congress aren’t on here, call them (1-877-851-6437, 1-800-828-0498, or 1-800-614-2803). Ask if they support one of the efforts to investigate the Bush Administration. If they’re not sure, urge them to do so. Please leave a comment so we can track what they say.

Senators

Barbara Boxer
Russ Feingold
Pat Leahy
Carl Levin
Jack Reed
Harry Reid (?)
Sheldon Whitehouse

Congressmen

(Unless otherwise noted, these are co-sponsors of John Conyers’ bill, HR.104, calling for an independent commission.)

Tammy Baldwin
Rick Boucher
Steve Cohen
John Conyers
Elijah Cummings
Peter DeFazio
William Delahunt
Keith Ellison
Bob Filner
Barney Frank
Raul Gijalva
Luis Gutierrez
Maruice Hinchey
Sheila Jackson-Lee
Hank Johnson
Walter Jones
Barbara Lee
Carolyn Maloney
Jerrold Nadler
Ed Pastor
Nancy Pelosi
Linda Sanchez
Jan Schakowsky
Bobby Scott
Debbie Wasserman Schultz
David Wu

Is the Obama White House Caving (Again) on Presidential Privileges?

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I had this post mostly written as a screed against Greg Craig, who appeared to be caving again on Obama’s stated principles on presidential privileges. But after checking with three data points, I’m not so sure what is going on.

I covered the first data point on Friday: John Conyers’ letter, dated Friday, to Bob Luskin, refusing to give Rove yet another delay until such time as he feels the whim to testify before HJC.

I also cannot agree to your request for a delay to accommodate Mr. Rove’s schedule. As you know, the deposition was originally scheduled for February 2. On January 29 I in good faith acceded to your request for a delay since you were scheduled to be out of town at the time and requested more time to prepare. I also notified your office of the new February 23 date at that time. Thus, absent an actual commitment by Mr. Rove to comply with the subpoena, I am not in a position to agree to yet a further delay. In essence, given Mr. Rove’s public statements that he does not intend to comply with the subpoena, I am puzzled as to why Mr. Rove needs a mutually convenient date to appear.

The letter suggested that as of Friday, Conyers was unwilling to wait until the Appeals Court ruled on the Miers/Bolten (with Rove added) suit–he wanted to get a date with Rove for a week from Monday.

But then there was this report, revealing that Greg Craig is trying to make a deal.

White House lawyers and representatives for former president George W. Bush are engaged in discussions that could clear a path for congressional testimony by onetime Bush aide Karl Rove, three sources familiar with the talks said yesterday. 

[snip]

"The president is very sympathetic to those who want to find out what happened," Craig said in a statement yesterday. "But he is also mindful as president of the United States not to do anything that would undermine or weaken the institution of the presidency. So, for that reason, he is urging both sides of this to settle."

There’s a CBS report on this statement–but the reporter seems to be confused as much by the underlying issues as by Craig’s ambivalence. Both, however, suggest that Craig is granting Rove’s position with entirely too much credibility. Further, it hints that Craig might try to defend the utterly ridiculous absolute immunity claim so as to not "weaken the institution of the presidency." Read more →

Rove’s Rather Uncooperative Cooperation

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Remember how Bob Luskin told Murray Waas that Rove had gotten all cooperative?

Well, it will surprise none of you that that’s a load of horse puckey. In a letter to Luskin, John Conyers reveals that Rove is stalling on the February 23 deposition he agreed to in two ways: by insisting on bracketing off the Don Siegelman testimony, and by begging for (yet) another delay.

Though staff, I understand that you have offered to have your client testify voluntarily, but only on the Siegelman matter, and that in any event you have requested a further delay in the deposition. I cannot agree to either of these requests for a number of reasons.

With regard to the request to unilaterally limit Mr. Rove’s testimony to the Siegelman matter, as we have previously discussed, I do not believe it is acceptable for the Committee to allow witnesses to unilaterally determine what they can and cannot testify concerning, again absent assertion of a valid privilege. Moreover, the proposed distinction between the Siegelman matter and the U.S. Attorney investigation generally does not appear to be a tenable or viable distinction. They are part and parcel of the same serious concerns about politicization of the U.S. Attorney corps and the Justice Department under the Bush Administration.

[snip]

Finally, conducting a voluntary deposition under these circumstances could simply serve to further delay matters beyond the nearly two years I have been waiting, since the Committee could not then be in a position to utilize contempt or other enforcement mechanisms in response to any improper refusal to answer questions.

I also cannot agree to your request for a delay to accommodate Mr. Rove’s schedule. As you know, the deposition was originally scheduled for February 2. On January 29 I in good faith acceded to your request for a delay since you were scheduled to be out of town at the time and requested more time to prepare. I also notified your office of the new February 23 date at that time. Thus, absent an actual commitment by Mr. Rove to comply with the subpoena, I am not in a position to agree to yet a further delay. Read more →

The State Secret Protection Act

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This will get dragged into court right away, even assuming Congressmen Conyers, Nadler, Delahunt, Petri and Congresswoman Lofgren can get it passed. Still, with Obama’s inexcusable support for Bush’s state secrets invocation the other day, there’s no time like the present to really push this bill, which would establish a CIPA-like process to allow the admission of evidence over which the executive has invoked State Secrets. (via email)

Congressmembers Jerrold Nadler (NY-08), Chair of the Judiciary Subcommittee on the Constitution, Civil Rights and Civil Liberties, Thomas Petri (WI-6), House Judiciary Chairman John Conyers, Jr. (MI-14), Bill Delahunt (MA-10) and Zoe Lofgren (CA-16) today reintroduced legislation that would ensure meaningful judicial determination of the state secrets privilege. The bi-partisan State Secret Protection Act of 2009 would curb abuse of the privilege while providing protection for valid state secrets.

"The Administration’s decision this week to adopt its predecessor’s argument that the state secret privilege requires the outright dismissal of a case challenging rendition to torture was a step in the wrong direction and a reminder that legislation is required to ensure meaningful review of the state secret privilege," said Rep. Nadler. "This important bill recognizes that protecting sensitive information is an important responsibility for any administration and requires that courts protect legitimate state secrets while preventing the premature and sweeping dismissal of entire cases. The right to have one’s day in court is fundamental to protecting basic civil liberties and it must not be sacrificed to overbroad claims of secrecy."

Rep. Petri commented, "Imagine the government locks you up but says you can’t see the evidence for reasons of national security. I’m sure there are cases where national security is truly at risk, and that information must be protected. But we shouldn’t have to simply take the executive branch’s word for it. Shouldn’t an independent, responsible party apart from the executive branch review the material to determine when and how national security really necessitates restricting the use of sensitive material? The answer is, quite obviously, yes. We have a procedure for criminal cases, and we need one for civil cases as well."

"National security and the search for justice are not mutually exclusive," said Rep. Zoe Lofgren. "By allowing a neutral arbiter to evaluate assertions of the state secret privilege with appropriate safeguards to protect national security information, the State Secret Protection Act strikes the appropriate balance between protecting our national security and protecting the rights of citizens."

Read more →

Pat Leahy Calls for Truth Commission

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I want prosecutions. But seeing as how it looks increasingly likely we won’t get that, I want some accounting for the crimes of the Bush Administration. Today, Pat Leahy joined his counter-part in the House, John Conyers, as well as the Chair of the Senate Armed Services Committee, Carl Levin, in calling for a committee to examine the wrong-doing of the Bush Administration. 

The President is right that we need to focus on fixing the problems that exist and improving the future for hardworking Americans. I wholeheartedly agree and expect the Judiciary Committee and the Senate to act accordingly. But that does not mean that we should abandon seeking ways to provide accountability for what has been a dangerous and disastrous diversion from American law and values. Many Americans feel we need to get to the bottom of what went wrong. We need to be able to read the page before we turn it.

We will work with the Obama administration to fix those parts of our government that went off course. The Office of Legal Counsel at the Justice Department is one of those institutions that was hijacked and must be restored. There must be review and revision of that office’s legal work of the last eight years, when so much of that work was kept secret.

We have succeeded over the last two years in revitalizing our Committee’s oversight capabilities. The periodic oversight hearings with the Attorney General, the FBI Director, the Secretary of Homeland Security, and others will continue. The past can be prologue unless we set things right.

As to the best course of action for bringing a reckoning for the actions of the past eight years, there has been heated disagreement. There are some who resist any effort to investigate the misdeeds of the recent past. Indeed, some Republican Senators tried to extract a devil’s bargain from the Attorney General nominee in exchange for their votes, a commitment that he would not prosecute for anything that happened on President Bush’s watch. That is a pledge no prosecutor should give, and Eric Holder did not, but because he did not, it accounts for many of the partisan votes against him.

There are others who say that, even if it takes all of the next eight years, divides this country, and distracts from the necessary priority Read more →