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Caretaker for the Regime

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Carrie Johnson’s got an interestingly-timed profile of Michael Mukasey today. She accurately describes Mukasey as trying to, above all, just get to the end of the term with no big new scandals erupting.

From a book-lined den on the fifth floor of the Justice Department, the attorney general is watching the clock.

Tenure, after all, is short for Michael B. Mukasey, a retired federal judge who has just six more months to restore confidence in a department battered by allegations of improper political meddling before time runs out on the Bush administration.

Mukasey is one of several elder statesman who accepted the president’s request to rejoin government late in the second term, only to confront increasingly intense political battles and the detritus left by their predecessors. Yet, unlike Michael Hayden at the CIA and Robert M. Gates at the Defense Department, Mukasey has complicated his task with his steadfast refusal to reopen old wounds and purge the ranks of his roiled department.

Senate Judiciary Chairman Patrick J. Leahy (D-Vt.) recently appraised Mukasey as "content to serve as a caretaker for the regime of excessive executive power established by the Bush administration."

As Democratic lawmakers and White House officials tangle over how actively investigators should explore the past, the attorney general generally has sided with the administration and declined to open criminal probes on matters that predate him.

In the past month, Mukasey has rejected requests to name a special prosecutor to examine whether Cabinet officials committed war crimes when they approved harsh interrogation tactics for terrorism suspects. He refused to take a second look at a public corruption case that 52 bipartisan state attorneys general say smacks of selective prosecution. He refrained from characterizing the department he joined last November as torn apart by partisan discord even though more than a dozen officials, including his forerunner, Alberto R. Gonzales, departed amid a politically charged firing scandal.

I say this is interestingly-timed because most of the stonewalling she lists are the same things Democratic Senate Judiciary Members listed a few weeks back when Mukasey testified before the Committee: torture, Siegelman, the politicization of DOJ (she missed John Yoo’s OLC opinions). But that was then, this is now, and in the interim two weeks, two conflicts have arisen, which both threaten to make Mukasey the point of controversy, rather than the guy trying to tamp it down.

Read more →

Meet the Bloggers and SendKarlRoveToJail.com

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meet the bloggers
Well that was fun. A replay of the premiere of Meet the Bloggers should be up here shortly. [Update: It’s both there now and at left.] The highlight of the piece, IMO, is that Cenk got the name of the Sargeant at Arms in: Bill Livingood. How cool would it be if a guy named "Livingood" walked up to Karl Rove and put him in handcuffs? It’s like something right out of Dickens. I decided yesterday that, in addition to putting Rove in a shipping container on the Mall in front of Congress (don’t worry–we’ll outfit it and air condition it) until he agrees to testify, Congress ought to contract with Blackwater to help Mr. Livingood do the arrest. After all, they’ll do anything for money, right?

Meanwhile, BNF has a petition drive up so you can encourage HJC to respond to being blown off in a timely and forceful manner.

I’ve got to go pack now so I can get a plane to Netroots Nation. I’ll poke my head in occasionally, but I expect to be pretty busy for the next several days. bmaz will have the keys, so maybe ya’ll can discuss whether or not Brett Favre should continue to start for the Packers.

[See the SendKarlRoiveToJail video here.]

Isn’t It Time to Chat with Kyle Sampson Again?

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Here’s an exchange between Dick Durbin, Senior Senator from Illinois, and Rove acolyte Kyle Sampson about the firing of Patrick Fitzgerald.

Durbin: Were you ever party to any conversation about the removal of Patrick Fitzgerald from his position as Northern District of Illinois US Attorney?

Sampson: I remember on one occasion in 2006, in discussing the removal of US Attorneys … or, the process of considering some US Attorneys that might be asked to resign, that I was speaking to Harriet Miers and Bill Kelley and I raised Pat Fitzgerald. Immediately after I did it I regretted it. I thought, I knew it was the wrong thing to do. I knew that it was inappropriate. And I remember at the time that Harriet Miers and Bill Kelley said nothing, they just looked at me. I regretted it and I withdrew it at the time and I regret it now.

Durbin: Do you recall what you said at the time about Patrick Fitzgerald?

Sampson: I said, Patrick Fitzgerald could be added to this list.

Durbin: And, there was no response?

Sampson: No. They looked at me like I had said something totally inappropriate, and I had.

Durbin: Why did you do it? Why did you recommend, or at least suggest that he be removed as US Attorney?

Sampson: I’m not sure, I don’t remember. I think it was maybe to get a reaction from them. I don’t think that I, I know that I never seriously considered putting Patrick Fitzgerald on a list and he never did appear on a list.

Now put that exchange together with Rove’s non-denial denial that he was involved in having Patrick Fitzgerald fired:

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.”

Of course, when Rove says "I don’t recall" about an event, it usually means, "I won’t admit it until you show more evidence" about that incident. Read more →

Fitzgerald Learned Rove Was Trying to Fire Him in 2005–While Rove Was Still Under Investigation

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In a supplement to his responses to the House Judiciary Committee, Patrick Fitzgerald confirms what we’ve always suspected: Karl Rove was trying to have Patrick Fitzgerald fired while Fitzgerald was still investigating Rove for his role in leaking Valerie Wilson’s identity–and the timing lines up perfectly with the Administration’s efforts to fire a bunch of US Attorneys.

Remember back in June, when Fitzgerald publicly suggested he had more details to share with Congress about Rove’s efforts to get him fired?

"If I owe a response [about the putsch to remove him from his job], I owe it to Congress, first," Fitzgerald said when asked about all this after the verdict.

Well, it turns out Fitzgerald did share those details with Congress. And those details make it clear that Fitzgerald learned Rove was trying to fire him while Fitzgerald was still actively investigating Rove’s role in the leak of Valerie Wilson’s identity.

In my answers submitted on May 2,2008, I noted in my response to Question Eleven that I omitted discussion of when I first learned that I might be asked to resign as United States Attorney. I declined to answer more fully due to the then pending trial of United States v. Antoin Rezko in the Northern District of Illinois. With that trial concluded, I can briefly elaborate further: I learned some time in or about early 2005 from agents of the Federal Bureau of Investigation ("FBI") that a cooperating witness (who later testified at the Rezko trial, but not about this topic) had advised the FBI agents that he had earlier been told by one of Mr. Rezko’s co-schemers that it was the responsibility of a third person in Illinois to have me replaced as United States Attorney. I should be clear that I did not understand that any putative effort to replace me as United States Attorney was related to my conduct as Special Counsel but understood instead that it was related to the investigative activities of federal agents and prosecutors conducting a corruption investigation in Illinois. [my emphasis]

As a reminder, here’s the allegation with all the names handily added in (though I think Fitzgerald is referring to someone besides Ata, because Ata was not yet cooperating with the Rezko prosecutors):

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.

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DOJ Doesn’t Want to Say Whether It Agrees that Karl’s “Official Duties” Include Witch Hunts

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As you all know, I started calling DOJ last Friday, asking them whether, as Fred Fielding suggested, they had advised the White House that Karl Rove’s duties include witch hunts of Democrats.

We have been further advised that because Mr. Rove was an immediate presidential adviser and because the Committee seeks to question him regarding matters that arose during his tenure and relate to his official duties in that capacity, Mr. Rove is not required to appear in response to the Committee’s subpoena. Accordingly, the President has directed him not to do so.

Apparently, DOJ Deputy Public Affairs Director Peter Carr (whose phone number is 202-616-2777) received the request. Yet, surprise surprise, I have not had a response to my question.

From which I am assuming that Mr. Carr refuses to say whether DOJ actually told the White House, this year, with regards to HJC’s May subpoena of Karl Rove, that the subpoena pertained to his "official duties." I find that mighty curious, given the fact that the White House Counsel, Fred Fielding, strongly implied that DOJ had given the White House that advice. Is Fred Fielding deliberately mis-representing to Congress the advice he has gotten from DOJ? Because that sure sounds like either an ethical or legal problem, to have the White House Counsel making such representations if they are not in fact true. Especially since Fielding suggests that DOJ really reviewed this and decided that making resource allocations in PIN, channeling oppo research on Democrats to DOJ, and talking openly about having Patrick Fitzgerald fired to protect RNC donor Bob Kjellander from investigation were part of Rove’s "official duties."

Well, just to be sure, I called Fielding’s office. Yup, not holding my breath there, either, but you’ll be the first to know if I do get a response. But it is sure beginning to look like Fred Fielding decided, on his own, that Rove’s official duties included witch hunts of Democrats.

Or maybe he decided that because Bush told him to?

Meet the Bloggers Tomorrow at 1ET

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Brave New Foundation–the folks who put together all those videos on why Fox News sucks–is launching a cool new show tomorrow: Meet the Bloggers. The goal is to grow the show into something that will rival Meet the Press and the other Sunday shows, but feature bloggers.

And tomorrow, it will include me!

We’re going to be discussing Kontemptuous Karl–and ways to make sure Congress actually does something this time after getting blown off. BNF is also going to be launching a petition drive to gather support for holding Karl in Kontempt–which is a pretty easy sell. 

Tune in tomorrow to watch the show. 

Turdblossom’s Still a Lying Sack; AP Journalists Are Still Suck-Ups

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A number of people have pointed to Ron Fournier’s "breezy correspondence" with Karl Rove in 2004.

In a chain under the subject line "H-E-R-O," Rove replied to an e-mail from Fournier by saying, "How does our country continue to produce men and women like this?"

Fournier replied, "The Lord creates men and women like this all over the world. But only the great and free countries allow them to flourish. Keep up the fight."

Fournier, now the AP’s acting Washington bureau chief, said Monday: "I was an AP political reporter at the time of the 2004 e-mail exchange, and was interacting with a source, a top aide to the president, in the course of following an important and compelling story. I regret the breezy nature of the correspondence."

But thus far, I haven’t seen anyone point out that AP’s love affair with Turdblossom is still going strong. In yesterday’s case, the AP’s Lynn Elber allowed Rove to completely steamroll her (probably all in the name of maintaining AP’s "breezy" relationship with him). Elber was reporting on Fox News EVP John Moody’s nonchalance about employing a contemptuous character like Karl Rove.

John Moody, Fox News executive vice president, was asked if it undercuts the channel’s credibility to have someone with Rove’s "political baggage" in its lineup.

"No," Moody replied, calling the former Bush adviser an authority on politics and adding that the current difference of opinion with Congress is between Rove and lawmakers.

But then Elber portrays Rove’s refusal to testify precisely as he’d like her to–as a combination of traditional executive privilege and the much more audacious absolute immunity that Steven Bradbury dreamed up.

But when a reporter tried to press the point with Moody, Rove jumped in to dispute characterization of the dispute as personal.

"It’s not between me and Congress. I’ve not asserted any personal privilege. This is between the White House and Congress," Rove said.

The issue centers on "the ability of the president to receive advice from senior advisers and for those senior advisers not to be at the beck-and-call of Congress for testimony," Rove said.

[snip]

Rove has said previously he is bound to follow the White House’s guidance, although he has offered to answer questions specifically on the Siegelman case — but only with no transcript taken and not under oath.

Read more →

Did Bush Claim Executive Privilege for Rove Last Year?

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Another day, another post on Turdblossom–love ya, Karl!! "C’mon, walk out with me, walk out with me."

Today, I wanted to observe something about Rove’s failure to respond to a Congressional subpoena from last year–in that case, from the Senate Judiciary Committe; they were looking for testimony explicitly related to the USA purge.

As I sort of alluded yesterday (and MadDog had some interesting points to raise) it’s not entirely clear what basis Rove used to blow of the Senate last year. Here’s the timeline:

June 27, 2007: Paul Clement writes a memo supporting the invocation of executive privilege for Harriet Miers and Sara Taylor–but referring generically to "current or former White House officials"–regarding the hiring and firing of US Attorneys

July 10, 2007: Steven Bradbury writes a memo arguing Harriet Miers–and Presidential aides more generally–do not need to appear in response to Congressional subpoena

July 26, 2007: Senate Judiciary subpoenas Rove

August 1, 2007: Steven Bradbury writes a memo finding that, based on the earlier Miers memo, Rove "is immune from compelled congressional testimony about matters (such as the U.S. Attorney resignations) that arose during his tenure as an immediate presidential adviser and that relate to his official duties in that capacity"

August 2, 2007: Deadline on Rove’s subpoena

August 13, 2007: Rove’s "resignation"

August 27, 2007: Gonzales "resignation"

December 13, 2007: SJC votes to hold Rove (and Bolten) in contempt

As I pointed out yesterday, the June 27 Clement opinion did not name Rove (indeed, the opinion was written before he was subpoenaed), but it was written generally, so as to apply to the process of hiring and firing USAs generally, as well as applying to Miers and Bolten, who are named in the opinion. In his letter to Rove, Leahy mentions Bush’s "blanket claim of executive privilege," suggesting he understood the Clement memo and the executive privilege claims made subsequent to that claim to apply to everyone (recall that Sara Taylor and Scott Jennings were also subpoenaed to appear during this period and both invoked privilege).

Thus, the only documents that actually have Rove’s name on them are the July 10 claim of absolute immunity and the August 1 application of that to Rove. Again, as I pointed out yesterday, neither of these documents use the phrase "executive privilege."

Everything points to last year’s non-appearance, unlike Thursday’s, to have included a Bush executive privilege claim, though. Read more →

The Significance of the “Official Duties” Claim

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Here’s how Dana Jill Simpson describes Karl Rove’s involvement in the Siegelman prosecution.

What I understood, or what I believed Mr. Canary to be saying, was that he had had this ongoing conversation with Karl Rove about Don Siegelman, and that Don Siegelman was a thorn to them and basically he was going to — he had been talking with Rove. Rove had been talking with the Justice Department, and they were pursuing Don Siegelman as a result of Rove talking to the Justice Department at the request of Bill Canary.

[snip]

[After the prosecution launched by Alice Martin was dismissed in 2004] Bill Canary and Bob Riley had had a conversation with Karl Rove again and that they had this time gone over and seen whoever was the head of the department of — he called it PIS, which I don’t think that is the correct acronym, but that’s what he called it. And I had to say what is that and he said that is the Public Integrity Section.

[snip]

Q About what?

A About Don Siegelman and the mess that Alice Martin had made and it was my understanding in that conversation after that conversation that there was a decision made that they would bring a new case against Don Siegelman and they would bring it in the Middle District,

[snip]

Q Okay. And did Rob give you the name of the person at — I’m just going to call it Public Integrity — that he thought he understood Karl Rove had spoken to?

A No, he said it was the head guy there and he said that that guy had agreed to allocate whatever resources, so evidently the guy had the power to allocate resources, you know.

Q To the Siegelman prosecution?

A Yes. And that he’d allocate all resources necessary.

So, in sworn testimony, Simpson claims that, sometime before November 2002, Karl Rove had spoken to DOJ and–"as a result of Rove talking to" DOJ, they were pursuing an investigation of Don Siegelman. And then, after the first case against Siegelman had been dismissed in 2004, Rove again spoke with DOJ–with the Public Integrity Division specifically, probably Noel Hillman from the description–and got reassurances that PIN would "allocate all resources necessary" to a second Siegelman prosecution. Read more →

Why Absolute Immunity Is So Audacious

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Apologies in advance–but I’m going to be harping on Rove’s non-appearance before HJC for a couple more posts today (if you’re bored with that, don’t miss bmaz’ update on FISA).

I still seem to be one of the only people–aside from John Conyers–who gets that Karl Rove did not claim executive privilege yesterday, but instead claimed something much more audacious–absolute immunity from being forced to testify before Congress.

The claim that Mr. Rove and the White House make is that high-level aides to the president are totally immune from compelled congressional testimony. Not that there are certain subjects they cannot discuss in a public hearing, nor that the White House has a right to review questions that are asked, but that they are in a class entirely by themselves — a separate group that is above the reach of a subpoena and, consequently, above the law.

Heck, even law professor Jonathan Turley has been repeating that executive privilege line.

A reader sent a link to an ACS blog post on what the difference is (h/t Tanya; and if anyone wants to liberate the full NLJ article on this and email it to you, I’d be grateful). 

The U.S. Supreme Court explained the nature and limits of executive privilege in the Nixon tapes case during Watergate. It said that executive privilege protects "the confidentiality of Presidential communications." And it made clear that the privilege is not absolute. The court balanced the competing interests at stake, the president’s need for confidentiality against the needs of the criminal justice system in finding the truth. Here, by contrast, the president seeks not merely to bar testimony about specific conversations or documents. He claims the right to block any sworn public testimony by his advisers, period. Thus, the claim of confidentiality is based on who the witnesses are rather than what they have to say. And the president is suggesting that this immunity, unlike executive privilege, is absolute. There is no balancing of interests.

This claim of immunity is not only broader than executive privilege, it also stands on weaker ground. No court has ever ruled on the issue. To be sure, although officials have testified on occasion, both Republican and Democratic administrations have long insisted that Congress cannot compel testimony by the president’s closest advisers. The claim of immunity, however, rests on legal opinions written by the U.S. Department of Justice (DOJ). Attorney General Janet Reno issued Read more →