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They’ve Compartmentalized Mukasey from the Corruption

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I know, I know, a lot of you want me to talk about Rove in Ohio. But I’ve been distracted with something else so I haven’t had a chance to assess it yet, and anyway, I’ve been pondering this assessment from Scott Horton:

The ultimate problem here is that Mukasey is not paying attention to the matter. Instead he is relying on political flaks at the Justice Department to prepare answers on his behalf, trodding down the same path that destroyed the careers of Alberto Gonzales and Paul McNulty. He has allowed himself to be roped into a series of incorrect statements about specific aspects of the Siegelman investigation. Michael Mukasey needs to recognize that he has brought his tenure at the Justice Department to the edge of a precipice.

Horton is talking, specifically, about the Siegelman investigation in general, but I suspect Horton is right on the money, and not just as it pertains to Siegelman (heck! maybe it pertains to the Ohio allegation as well…).

To support that argument, I point to two exchanges in Mukasey’s testimony before the House Judiciary the other day which suggest he’s not being informed of key issues that Congress regards as critical. First, there was his admission that he only recently realized–presumably between his testimony before the Senate Judiciary Committee, when he refused to guarantee that Congress would learn the results, and that before HJC, when he said Congress would "absolutely" learn the results–that Congress itself requested the OPR investigation of the Siegelman affair.

Davis: Can we see OPR report?

MM: Absolutely. Congress was the complainant. Complainant always informed. If finding of misconduct, then you’ll get the report.

It is inconceivable to me that Mukasey didn’t go into the SJC hearing expecting a question about the Siegelman affair, if for no other reason than all the chatter pertaining to his Siegelman-related subpoena from HJC at the time. But no one thought to inform the Attorney General two key facts: that Congress had requeted the investigation and that, therefore, Congress would be guaranteed to learn of its results. Now, to some degree, this was just bad staff work on the part of DOJ, a failure to prepare for an obvious question. But the effect was to put Mukasey into an antagonistic relationship with Congress, defending something (hiding the results of the OPR investigation) that put the AG into an unnecessarily confrontational position.

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When Did the US Postal Inspectors Replace Our Courts?

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Yesterday, Artur Davis revealed yet another example of potential misconduct in the Don Siegelman case. He revealed that, at the same time as Judge Fuller was refusing Siegelman’s lawyers’ motions for an investigation into emails that may have proved juror misconduct, the government–the postal inspectors!–were conducting a secret investigation into the emails.

At issue is a series of e-mails that arose in 2006 suggesting that two jurors had outside influence as they decided Siegelman’s bribery conviction. After he was found guilty, Siegelman sought a new trial over the e-mails, printed copies of which had been mailed to defense attorneys.

U.S. District Judge Mark Fuller denied the motion for a new trial, ruling that the allegations were unsubstantiated. Siegelman has cited the issue as a central point in his ongoing appeal.

Two weeks ago, the head of the Justice Department’s appellate division, Patty Merkamp Stemler, informed Siegelman’s attorneys that the department had discovered undisclosed information about the controversy as attorneys prepared for the appeal. In a July 8 letter, Stemler wrote that while Siegelman’s mistrial proceedings were pending, acting U.S. Attorney Louis Franklin asked U.S. postal inspectors to try to determine who sent the e-mails through the mail.

U.S. Marshals later informed Fuller that the inspectors had concluded the e-mails were fakes. They determined, for example, that one e-mail didn’t match up with the corresponding juror’s e-mail account.

But the information produced for prosecutors and given to the judge was never passed along to Siegelman’s attorneys for cross-examination. [my emphasis]

Here’s how Governor Siegelman explained the whole issue today:

The emails were mailed anonymously to defense lawyers and members of the media. They were allegedly between two jurors — including the jury foreman. The conversations in the emails were dated during the TRIAL and not deliberation. They discussed how to get others to go for conviction. One in particular said "Gov is up shit creek." Another said "all politicians r scum." Another said "37 coming along. Keep working on 20." – referring to juror numbers. This is just a sampling.

We filed a motion and asked that the emails be investigated. The prosecution objected and the judge overruled us. We filed an additional motion asking that the servers be preserved in case the appellate court wanted to go back later and investigate. The prosecution objected to that also and the Judge overruled us again.

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Sanchez v. Mukasey on “Executive Privilege”

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I wanted to look closely at the exchange between Congresswoman Sanchez and Attorney General Mukasey to see if it gets us any closer to determining whether DOJ reviewed Bush’s invocation of absolute immunity for Rove–and specifically whether Mukasey bought off on the claim that the matters in question pertained to Rove’s "official duties."

Sanchez: There are a number of different areas of questioning that I have and I’m going to try to get through them as quickly as I can. First off, in response to questioning before the Senate Judiciary Committee on July 9 about the allegations of selection prosecution of Alabama Governor Don Siegelman, you stated and I’m quoting you here, "Various avenues open for exploring those allegations, including having testimony on the subject." Given your assertion about the ability of Congress to investigate the Siegelman matter through testimony, I’m wondering, do you support Karl Rove’s decision to ignore a congressional subpoena on July 10 and refuse to testify about his role in the Siegelman matter and other matters regarding the politicization of the Justice Department?

Mukasey: As I understand it, Mr. Rove acted at the request of the President in response to the invocation of Executive Privilege. He has offered to meet with staff, he has offered to discuss the matter–

Sanchez: But he has not offered to be under oath or be subjected to a transcript, and my understanding from prior court law–and I would expect an Attorney General to understand this as well–is that if the White House wishes to invoke a claim of Executive Privilege, the witness still has to present himself before Congress and claim that privilege on a question by question basis.

Mukasey: With all due respect, that’s a matter that is still being litigated on which I can’t comment any further.

Sanchez: But prior case law has held that that is the case.

Mukasey: Don’t know that. I know that is a matter under active litigation and is I believe sub judice before a judge in–

Sanchez: So you agree that Karl Rove can disregard a congressional subpoena–

Mukasey: What I’m saying is the question of whether an immediate advisor to the President has to appear at all when a proper claim of has been made of Executive Privilege is a matter that I believe is actively before a District judge and I shouldn’t comment anymore on that and I won’t.

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A Timeline of Lamar Smith’s Pathetic Attempt to Save Karl Rove

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I noticed something rather curious about the timeline of Lamar Smith’s panicked attempt to save Karl Rove’s ass.

July 1: Luskin writes Conyers claiming "Mr. Rove will respectfully decline before the Subcommittee on July 10 on the grounds that Executive Privilege confers upon him immunity from process in response to a subpoena directed to this subject."

July 9: Michael Mukasey says that, "there are various avenues open for exploring those allegations [that Rove was involved in the Siegelman proscution], including exploring their source and having testimony on the subject."

July 9: Fred Fielding writes to Luskin who writes to Congress invoking absolute immunity–but not once mentioning Executive Privilege.

July 15: Lamar Smith submits questions to Karl, giving a July 16 deadline.

July 15: Luskin confirms receipt of the questions for Karl, stating they will respond by July 22.

July 22: Luskin submits Karl’s responses.

July 23: Mukasey testifies and is asked–predictably–about why Rove can’t show up if Mukasey himself has said they can have a hearing. As a follow-up to that question, Darrell Issa introduces Rove’s responses into the record, claiming Rove has therefore dispensed with any questions that might be asked of him that don’t relate to Executive Privilege (and he uses that term).

You see, Lamar Smith’s attempt to save Karl Rove’s ass didn’t even start until after Rove had blown off Congress! It was not, then, an attempt to proactively get testimony from Rove. It was an attempt (however pathetic transparent) to be able to claim that Rove had provided information to Congress before Attorney General Mukasey came to testify. (In fact, I’d wager that the colloquy someone tried to invite Conyers into at the beginning of the hearing was an attempt to enter these questions into the record before Mukasey first got asked about Rove’s non-appearance.)

I suspect the Republicans all know that Rove’s no-show was completely illegal, based not least on his claim that these were his "official duties." I suspect they see some risk that Mukasey will balk at this one (I’ll do another post on this, but Mukasey seemed to claim that Rove had properly invoked Executive Privilege, even while DOJ hadn’t done any analysis of the instant request). And given the risk that Rove’s entire basis for blowing off the Subcommittee is so obviously unfounded, they got these questions to try to tamp down the calls for Rove to testify.

HJC Testimony: Michael Mukasey, Three

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Decided to make a new thread to keep this clean.

First order of business: did you notice that Darrell Issa said the Republicans had gotten answers from Rove himself, so he wouldn’t have to show before Congress? Well, Issa entered those answers into the Congressional Record and here they are. I’ll put up a post on them later–but the short version is the Republicans are now actively conspiring with Rove to allow him to evade responsibility for his actions.

Here’s the live stream for the hearing.

And, as a reminder, Governor Siegelman will be joining us at FDL tomorrow at 12ET/9PT. I’m sure we’ll talk about contempt for Rove’s dodgy answers and about the fact that Michael Mukasey seems to think Bush’s invocation of Absolute Immunity was proper.

Gohmert: Raid of Congressman Jefferson’s office–to cleanse of protected or privileged documents. Do you have a firewall capacity?

MM: Yes.

Gohmert: Scalia thinks the Courts know nothing about security concerns. blah blah blah SCOTUS micro-managing the trials.

MM: Decision is the law of the land, and I am moving forward to treat it as the law of the land.

Artur Davis: Sanchez raised and I raised in phone call yesterday. Siegelman prosecution. Possible political influence. Not been raised publicly. As you perhaps know, emails that surfaced that suggested that various jurors engaged in misconduct, they had consulted the internet and other conduct that I think you would agree was improper. Motions filed urging new trial. Protracted dispute. Series of hearings back and forth. Govt took position that evidentiary hearing had to be very limited. In July of this year, Chief of Appellate division notified Defense Counsel that while District Judge Fuller was considering these motions, that District Judge had ex parte communication with US Marshall Service, had been instructed by USA office to conduct its own investigation. US Marshall service reached conclusion that emails were not valid. You were a district judge. Would there have been any circumstance where you would have allowed yourself to have ex parte conversation while you were considering motions.

MM: Facts somewhat differently. Jurist co-workers got copies before judge, turned them to Marshall, Marshall to USA, gave them to US Postal Service. Turned over to someone else. Postal service reached conclusions.

Davis: While the investigation was ongoing in April 2007, after the first evidentiary hearing, Representatives apprised Chief Judge Fuller and concluded that purported emails not authentic. Read more →

HJC Testimony: Michael Mukasey, Two

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Back to the Mukasey hearing. As a reminder, Governor Siegelman will join us tomorrow at FDL at 12ET/9PT. I’m sure we’ll talk about Mukasey’s statements regarding Rove’s non-appearance.

Darrel Issa: Executive privilege. Karl Rove’s failure to appear. What useful purpose would it serve if he came here if the items were likely to be related to subjects he’s prohibited from speaking about.

MM: Don’t want to get into controversy. Immediate advisors, if they’re told not to get into matters, they can’t. Various ways of gathering information.

Issa: I didn’t plan on asking these questions. I’d like to enter a letter from ranking member Lamar Smith asking Luskin whether he would answer specific questions related to Siegelman and then accompanying answers from Patton Boggs. Dispensed with Q&As that do not assert EP.

Issa: Media leaks and how they affect national security. In your opinion, both before and after you were AG, effect of NYT leaking the most sensitive information. You’re saying, show me a bill we would sign.

MM: Without criticizing individual newspapers.

Issa: I’m not restrained from saying Eric Lichtblau and the others who leak national secrets.

MM: They eventually write your obituary.

Issa: I’m from a family of long livers.

MM: When someone is obliged to tell a reporter that he or she has been picked up on a wiretap…

[Huh??? Did that make sense to anyone??]

MM: Numerous crimes, not subject to exception, such as child abuse. There is no way to compel a reporter even when a balance has been struck, put before someone who has no other standard. No way to compel disclosure. A reporter is free to take contempt.

Bill Delahunt: 45 detainees DOD has cleared for release who are still being detained at Gitmo. Number from Judge Hogan.

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HJC Testimony: Michael Mukasey

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Today’s hearing should be contentious. I expect Dems will want to talk about why Karl Rove feels he can blow of Congress, why Michael Mukasey begged Bush to invoke Executive Privilege to protect Cheney’s FBI interview reports, torture, and voting rights. Mukasey, undoubtedly, is going to want to talk about how HJC should drop all of those issues and instead focus on his call for Congress to redeclare war against Al Qaeda and to legalize keeping detainees indefinitely even if their habeas petitions say there’s no reason to hold them. I’m sure the Republicans on the Committee will alternate between supporting Mukasey’s call to redeclare war and interfering with the hearing generally, as they did with the Dougie Feith hearing last week.

As scheduled, the only place to watch the hearing live is the HJC feed. CSPAN will be showing it on tape delay later in the day.

One more relevant announcement: Governor Don Siegelman will be joining us at FDL tomorrow at 12 ET/9 PT for a live chat–we expect to talk about contempt for Karl Rove, as well as anything that comes up in today’s HJC hearing.

Conyers: Not seen enough cooperation on voting rights. Regular meetings on voting rights have not happened and have not been effective. Probably 100 days before the election, we don’t know specifically how govt will respond to practices that made elections of 2000 and 2004 so controversial. Highest order of responsible, because we’re going to be held responsible. In addition to serious problems in 2000 and 2004, numerous other problems, troubling redistricting plans. Hearing tomorrow and DOJ to this moment doesn’t have anybody committed to coming to that hearing. Head of voting section hasn’t agreed to come before us.

Conyers: Trying to get key members of Bush Administration before us: Miers and Bolten refused to cooperate in contempt proceedings bc DOJ has said they’re not going to enforce this subpoena. This Department continues to validate unprecedented concept of total immunity for high ranking officials. Last week, they oddly argued that non-grand jury statements somehow privileged. Waiting months and months for critical documents relating to obstruction of justice, secret OLC opinions, strike at core of Constitutional freedom. With less than 100 days remaining before election, this delay is unacceptable. AG has continued unfortunate tradition of refusing to appoint special prosecutor for evidence of misconduct that would require DOJ to bring in outside counsel. Read more →

Mukasey Asks Congress to Resolve Boumediene Issues Instead of Courts

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Boy, for a guy who was, not long ago, an Article III Court judge, Attorney General Mukasey sure has scant respect for Federal judges. In a speech to AEI today, Mukasey calls on Congress to get the Administration out of its most difficult quandries as a result of the Boumediene decision. Here’s an excerpt from his speech, with my editorializing:

First, and most important, Congress should make clear that a federal court may not order the Government to bring enemy combatants into the United States. There are more than 200 detainees remaining at Guantanamo Bay, and many of them pose an extraordinary threat to Americans; many already have demonstrated their ability and their desire to kill Americans. As a federal judge, I presided over a prominent terrorism-related trial, and the expense and effort required to provide security before, during, and after the trial were staggering. Simply bringing a detainee into the United States for the limited purpose of participating in his habeas proceeding would require extraordinary efforts to maintain the security of the site. To the extent detainees need to participate personally, technology should enable them to do so by video link from Guantanamo Bay, which is both remote and safe.

Far more critically, although the Constitution may require generally that a habeas court have the authority to order release, no court should be able to order that an alien captured and detained abroad during wartime be admitted and released into the United States.

I love (as in, despise) the way Attorney General Orwell uses court security costs to rationalize indefinite detention even after Boumediene. His logic: if we bring an "enemy combatant" into the States, it’ll cost a lot. So "enemy combatants" can’t face their accusers in DC District Court. And that means that an "alien captured and detained abroad during wartime" cannot be released into the US. Of course, if it came to the point of releasing someone, that would be because the US could not prove that, in spite of the fact the person had been held as an "enemy combatant" for up to 7 years, once that person finally had a habeas review, a Court decided he was not, in fact, an "enemy combatant" but instead someone the government probably shouldn’t have been holding. Some might call that a "mistake"–a very ugly, costly mistake. Read more →

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.

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Waxman’s Investigation

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Unlike HJC, Oversight does not publicly release subpoenas when they serve them. So Mukasey’s cowardly letter begging Bush to invoke executive privilege so he doesn’t have to go to jail for shielding Dick Cheney’s role in outing Valerie Plame is one of the first hints of the scope of what Waxman was after. Here are some details I find particularly interesting.

The subpoenaed documents concern the Department’s investigation by Special Counsel Patrick Fitzgerald into the disclosure of Valerie Plame Wilson’s identity as an employee of the Central Intelligence Agency. The documents include Federal Bureau of Investigation ("FBI") reports of the Special Counsel’s interviews with the Vice President and senior White House staff, as well as handwritten notes taken by FBI agents during some of these interviews. The subpoena also seeks notes taken by the Deputy National Security Advisor during conversations with the Vice President and senior White House officials and other documents provided by the White House to the Special Counsel during the count of the investigation. Many of the subpoenaed materials reflect frank and candid deliberations among senior presidential advisers, including the Vice President, the White House Chief of Staff, the National Security Advisor, and the White House Press Secretary. The deliberations concern a number of sensitive issues, including the preparation of your January 2003 State of the Union Address, possible responses to public assertions challenging the accuracy of a statement in the address, and the decision to send Ms. Plame’s husband, Ambassador Joseph Wilson, to Niger in 2002 to investigate Iraqi efforts to acquire yellowcake uranium. Some of the subpoenaed documents also contain information about communications between you and senior White House officials.

[snip]

Much of the content of the subpoenaed documents falls squarely within the presidential communications and deliberative process components of executive privilege. Several of the subpoenaed interview reports summarize conversations between you and your advisors, which are direct presidential communications. Other portions of the documents fall within the scope of the presidential communications component of the privilege because they summarize
deliberations among your most senior advisers in the course of preparing information or advice for presentation to you, including information related to the preparation of your 2003 State of the Union Address and possible responses to public assertions that the address contained an inaccurate statement. Read more →