Two Years to Indict Tan Nguyen

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Remember Tan Nguyen? He’s the asshole who, in his race against Loretta Sanchez in 2006, sent out fliers in Spanish to recently registered voters warning that immigrants could be imprisoned if they voted.

He was indicted on October 1 on one charge of obstruction. Two years after he tried to scare Latinos out of voting.

Now, I’m thrilled he’s been indicted. I’d love for his indictment to get a whole lot more press to dissuade the Republicans who are trying similar tactics again.

But does it seem odd to any of you that it took two years to put together a two page indictment that basically alleges he lied about his involvement in putting together the flier? For a case that, prosecutors estimate, will take just one day to try? Hell, it took Patrick Fitzgerald, working part time, less time to indict Scooter Libby for obstruction, in a much more complex case, even accounting for Judy Miller’s 11 months of stalling on testifying. And, predictably, Nguyen’s lawyer points to the length of "the investigation" to cast doubt on the charges. 

I can’t help but wonder whether this case wasn’t seriously considered until a number of people–Debra Wong Yang and her replacement at US Attorney, George Cardona and Brad Schlozman–were ousted. Perhaps, too, it took Glenn Fine’s ongoing investigation into problems at the Civil Rights Division to kick this into action. The non-indictment (up till now) of Nguyen always seemed to me to be the flip side of the firing of the US Attorneys. So I’d like to know why this took so long.

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Miers And Bolten Can Kicked Down The Road

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images1.thumbnail.jpegThe opinion by the DC Circuit Court of Appeals in the Harriet Miers and Josh Bolten subpoena matter has just been issued. The court has granted the stay requested by the Bush Administration; which, by all appearances, will effectively end the litigation as the subpoenas presumptively expire on January 3, 2009 when the term of the current 110th Congress expires. The opinion is short, easily understandable and should be read by one and all to get a first hand look at truly mendacious appellate judicial practice.

The present dispute is of potentially great significance for the balance of power between the Legislative and Executive Branches. But the Committee recognizes that, even if expedited, this controversy will not be fully and finally resolved by the Judicial Branch—including resolution by a panel and possible rehearing by this court en banc and by the Supreme Court—before the 110th Congress ends on January 3, 2009. At that time, the 110th House of Representatives will cease to exist as a legal entity, and the subpoenas it has issued will expire.
….
In view of the above considerations, we see no reason to set the appeal on an expedited briefing and oral argument schedule. If the case becomes moot, we would be wasting the time of the court and the parties.

Last I heard consummate can down the road kicking was not an affirmative duty in the judicial canons. This is buggered up. Basically the Court has said "We’re going to presume there would be further appeal, which we are going to presume will take us past the moot date of Congress turn over – and VIOLA – it is already therefore effectively moot. Buh bye, gotta go lunch and martini now!"

Lest you think I am kidding about the pernicious nature of this decision, get a load of the specially concurring, and kind of dissenting, Judge Tatel:

Nevertheless, I am perplexed by the panel majority’s willingness to grant a stay while hypothesizing that the expiration of the 110th Congress might moot the case before it is heard on the merits. Never have we granted a stay that would have the effect of irrevocably depriving a party of its victory in the district court. Nor have we authority to do so, for a stay in such circumstances would necessarily cause "substantial” — indeed, overwhelming — harm.

Man; no kidding. That is kind of an understatement there Judge.

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Glenn Fine Visits HJC

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Live hearing on CSPAN2 and HJC’s stream.

Linda Sanchez is hammering the ways in which appointing Nora Dannehy will actually ensure that this story gets covered up. 

Jeebus, Chris Cannon is still trying to claim there’s no evidence of White House awareness and involvement–even though the IG complained about non-cooperation with the White House. He’s trying to say that the Dannehy investigation will mean that Rove and Miers should not have to testify. I don’t have the patience for this today.

John Conyers sounds … old.

Glenn Fine up. Most serious allegation: that partisan political considerations did play a part in the removal of several USAs. 

"While USAs can be removed, they cannot be removed for an illegal reason."

Fine: Gaps in the investigation: Miers, Rove, and documents the WH refused to turn over. 

Chris Cannon, hitting on Iglesias for not reporting contact from Congress.

Cannon is on thin ice here–the reason Iglesias was removed was because he was incomptent.

Fine: We didn’t find that that was the reason the Department remove him.

Shorter Fine: No, you’re wrong, Congressman. 

Cannon: Couldn’t it be possible that people within DOJ said he was weak-minded.

Fine: But they didn’t. 

Fine: If it were that you had to remain political support, every prosecutorial decision would be suspect. It was unprecedented in the Department’s history to have this group removed. 

Fine: I don’t think it was the case [that these prosecutors were not being effective]. It’s not the Department’s job simply to accept complaints without investigating them. 

Linda Sanchez: Is it fair to say you couldn’t completely investigate the firing. Those witnesses were Karl Rove, Harriet Miers, and Monica Goodling?

Fine: Among others. 

Sanchez: I’m concerned that Nora Dannehy hasn’t been appointed special prosecutor. How can a prosecutor attack the claims of privilege at the same time that the Department is defending the White House in its privilege claims?

Fine: Not necessarily. You’d have to ask the department.

Sanchez: Under special counsel regulations, should appoint one not in DOJ, when DOJ pursuing the matter would present a conflict of interest.

Fine: A close question. 

Ut oh, Darrel Issa.

Issa notes that Rove would have to answer fully if he were pardoned. Sounds like he’s making a case for giving Rove a pre-emptive pardon.

Issa: If all we’re interested in is seeking the non-partisan truth, then a pardon is not a bad thing.

Issa: You’re saying that Lam was not removed bc of Cunningham and Foggo. And they’ve both been convicted, correct?

Um, kind of. Read more →

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The IG Report–Working Thread

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Look what MadDog found: the DOG Inspector General Report on the US Attorney firings. Use this as a working thread.

Also, h/t to Bay State Librul, Mukasey has appointed career prosecutor Nora Dannehy to conduct the further investigation. 

Here’s a roster of who did–and who didn’t–cooperate. Note how the people closest to Bush–Rove, Miers, and Domenici–didn’t cooperate.

We also attempted to interview Monica Goodling, a former counsel to Attorney General Gonzales and the Department’s White House Liaison. She declined to cooperate with our investigation. However, on May 23, 2007, Goodling testified before the United States House of Representatives Committee on the Judiciary pursuant to a grant of immunity issued by the United States District Court for the District of Columbia, and we reviewed the transcript of that hearing.

We also attempted to interview White House staff who may have played a role in the removals of the U.S. Attorneys. We discussed our request with the Office of Counsel to the President (White House Counsel’s Office), and that office encouraged current and former White House employees to agree to be interviewed by us. Several former White House staff members agreed to be interviewed, including Deputy White House Counsel David Leitch; Director of Political Affairs Sara Taylor; Deputy Director of Political Affairs Scott Jennings; Associate White House Counsel Dabney Friedrich, Christopher Oprison, and Grant Dixton; and Paralegal Colin Newman. However, other former White House staff, including White House Counsel Harriet Miers, Assistant to the President and Deputy Chief of Staff and Senior Advisor Karl Rove, Deputy White House Counsel William Kelley, and Associate White House Counsel Richard Klingler, declined our request to interview them.

[snip]

We also interviewed several members of Congress and congressional staff regarding the removals. We interviewed Congresswoman Heather Wilson in relation to Iglesias’s removal. We interviewed Congressman “Doc” Hastings and his former Chief of Staff, Ed Cassidy, in relation to the removal of McKay. We requested an interview with Senator Christopher S. “Kit” Bond in relation to Graves’s removal, and he provided us with a written statement.

We also attempted to interview Senator Pete V. Domenici and his Chief of Staff, Steven Bell, about the removal of Iglesias and any conversations they had with the White House or the Department related to the removal. However, Senator Domenici and Bell declined our requests for an interview. [my emphasis]

Frankly, I’m surprised Oprison cooperated. 

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The USA Purge: DOJ’s IG Punts

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Well over a year after the Department of Justice’s Inspector General started an investigation into the US Attorney firings, they’re set to punt tomorrow. They won’t refer Gonzales–or anyone else–for prosecution, but they will recommend that someone–someone with subpoena power–continue the investigation.

Justice Inspector General Glenn A. Fine and Office of Professional Responsibility director H. Marshall Jarrett, who wrote the report, will not absolve Justice Department officials of blame but will recommend that efforts continue to resolve unanswered questions, said the sources, who spoke on condition of anonymity because the findings have not yet been made public. 

The problem, it seems, is the same problem that prevented Congress from determining the truth behind the US Attorney firings: key participants refused to cooperate.

An intense effort to determine how the firing plan originated and whether perjury or obstruction of justice laws were violated in refusing to reveal the basis for the dismissals has been thwarted, partly because investigators lack the power to compel testimony from people outside of the Justice Department.

[snip]

Investigators did not win access to lawmakers and their assistants or former White House aides despite attempts to interview them.

Yeah, those key participants: Harriet Miers, Turdblossom, Bush, Domenici and his staffers, Heather Wilson and her staffers, etcetera. What a surprise. Mukasey’s refusal to appoint a prosecutor last year–and his ongoing support for the claims of executive privilege and absolute immunity–bought the White House a year in their attempts to stall or quash this investigation.

And, as if you didn’t already guess, Mukasey seems unprepared to appoint a special counsel to investigate this–he seems poised to appoint someone internal, just as he did with the torture tape destruction investigation.

Despite calls from some of the fired U.S. attorneys, Mukasey will not name a special prosecutor from outside the department. Instead, he intends to hand over the project to a career lawyer with experience in public corruption work, the sources said. 

Tune in tomorrow where we see yet more evidence of DOJ’s changing stories about why they fired the US Attorneys.

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Gonzo Sings! Justice In The Department At Last?

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It has been clear for a long time that Gonzales had serious criminal exposure for his acts during his service in the Bush Administration, which is why immediately after departure from the DOJ AGAG lawyered up by hiring criminal-defense lawyer George Terwilliger. Probably one of the reasons Gonzales announced his resignation within a week of the initiation of an Inspector General’s investigation into his conduct.

That IG report described how Gonzales’ improperly, and illegally, possessed, handled and transported Top Secret information; i.e. the two most important, secret, and arguably illegal, programs in the history of the Bush Administration, the illegal wiretap program and–almost certainly–the torture program.

In most circumstances when the DOJ gets a fish like this on the hook, the first thing you would expect would be for them to work him for incriminating information on other malfeasance he is aware of and to entice him into a cooperations agreement to help bring others to justice. And this is just what it looks like is happening. Murray Waas is just out with a major article in The Atlantic:

According to people familiar with statements recently made by Gonzales to federal investigators, Gonzales is now saying that George Bush personally directed him to make that hospital visit.
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Gonzales has also told Justice Department investigators that President Bush played a more central and active role than was previously known in devising a strategy to have Congress enable the continuation of the surveillance program when questions about its legality were raised by the Justice Department, as well as devising other ways to circumvent the Justice Department’s legal concerns about the program, according to people who have read Gonzales’s interviews with investigators.
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In describing Bush as having pressed him to engage in some of the more controversial actions regarding the warrantless surveillance program, Gonzales and his legal team are apparently attempting to lessen his own legal jeopardy. The Justice Department’s inspector general (IG) is investigating whether Gonzales lied to Congress when he was questioned under oath about the surveillance program. And the Justice Department’s Office of Professional Responsibility (OPR) is separately investigating whether Gonzales and other Justice Department attorneys acted within the law in authorizing and overseeing the surveillance program. Neither the IG nor OPR can bring criminal charges, but if, during the course of their own investigations, they believe they have uncovered evidence of a possible crime, they can seek to make Read more →

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Palin’s Advisor Makes the Comparison to the US Attorney Purge Explicit

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If you’ve been watching Sarah Palin’s attempt to cover-up her abuse of power in TrooperGate, it may have reminded you of Bush’s attempt to cover up his US Attorney purge: An executive wants to retaliate against those who have put the rule of law above partisan or personal grudges, so she fires people. And then, when people notice, she starts stone-walling and back-tracking on promises to cooperate.

Kagro X has already made this comparison explicit.

Warning to Democrats Americans: Republicans are fighting this investigation like it was Florida 2000. If you’re harboring any thoughts of taking a hands-off approach, rising above the fray, and then doubling back to investigate it later if she gets elected, think again. At that point we’ll be hearing nothing but how it was "thoroughly investigated" by the Alaska state legislature. The quashing of the subpoenas won’t be mentioned, and all will be forgotten. You know it’s coming.

This is a direct parallel to federal issues playing out as we speak in Washington, with Harriet Miers a no-show once again today on a subpoena that’s now well over a year old.

Turns out, Kagro X isn’t the first one to make such a comparison. One of Sarah Palin’s own personal advisors is.

WSJ broke and CNN did a follow-up story on the warnings Palin’s ethics advisor, Wevley Shea, gave her just as the story that she fired Walt Monegan started to break back in July.

An informal adviser who has counseled Gov. Sarah Palin on ethics issues urged her in July to apologize for her handling of the dismissal of the state’s public safety commissioner and warned that the matter could snowball into a bigger scandal.

He also said, in a letter reviewed by The Wall Street Journal, that she should fire any aides who had raised concerns with the chief over a state trooper who was involved in a bitter divorce with the governor’s sister.

In an interview with CNN, Shea compares the TrooperGate cover-up (and remember–this is a description coming from one of Palin’s friends!) and the US Attorney purge:

"The problem, in my opinion, is that there has been out-and-out cover-up and misleading statements by staffers in the governor’s office," he said. "And the parallel that I tried to draw is, you know, the problem with the firing or terminating of the U.S. attorneys."

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Denied! Bates Refuses to Stay Order in Miers/Bolten Suit

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Judge Bates isn’t helping BushCo sustain their USA purge cover-up and stall. Today, he denied the White House’s motion for a stay of his earlier order pending appeal. He got a bit snarky in his opinion denying the stay–I imagine David Addington is having fits right now.

The Executive has failed to demonstrate that it has a substantial likelihood of success on the merits of the absolute immunity issue or that it has even raised a question “so serious, substantial, difficult and doubtful,” id., as to warrant suspending the effect of the July 31st Order pending appeal. To begin with, the Executive devotes almost the entirety of its briefing on this prong to arguing that the Court’s Order is “susceptible to serious debate” concerning the threshold decisions relating to the Committee’s standing and cause of action. See Defs.’ Mot. at 5-6. But even assuming that the Executive’s proposition were correct — which it is not — its reliance upon that point is misplaced. The D.C. Circuit has explained that the stay pending appeal inquiry looks to the likelihood of success on the merits of the appeal itself, see Philip Morris, 314 F.3d at 617. Here, however, the denial of the Executive’s motion to dismiss is not presently subject to appeal because it is not a final order.

[snip]

The Executive’s argument boils down to a claim that a stay is appropriate because the underlying issue is important. But that is beside the point and does not demonstrate a likelihood of success on the merits. Simply calling an issue important — primarily because it involves the relationship of the political branches — does not transform the Executive’s weak arguments into a likelihood of success or a substantial appellate issue. Hence, the Court concludes that this prong of the stay pending appeal analysis cuts strongly in favor of the Committee. [my emphasis]

Bates goes on at some length, calling out the transparent BS in BushCo’s arguments.

Kagro X and I chatted briefly about what this means–I expect him to do a post on how, absent some enforcement mechanism, this doesn’t exactly guarantee that Miers will show before HJC anytime soon. (Gosh, I’ve never heard him make that argument before.)

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Bush’s Cover-Up

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Murray Waas argues that George Bush–and the Republican party–will regret Bush’s efforts to claim absolute immunity to prevent Congress from getting testimony and documents pertaining to the US Attorney purge.

The continuous claims of executive privilege– whatever the motive for them being invoked– are going to appear more and more to the pub[l]ic part and parcel of a cover up. That is inevitable as the U.S. attorney report becomes public, and the report on the politicization of the Civil Rights Division is made public, as well as whatever else the public learns about these issues through leaks from the federal grand jury, the House Judiciary Committee’s ongoing probe, and sleuthing by folks like Josh Marshall.

[snip]

Even though the President might think otherwise, and he is being advised to stay his course, his best hope in assisting Republican congressional candidates in the fall would be to have Karl Rove and Harriett Miers testify before Congress– and the sooner the better. As for the public welfare, the testimony would help resolve many unknowns about the firings of the U.S. attorneys and other allegations of White House misuse of the Justice Department.

He bases that argument on the following logic:

  • Per Evan Perez of the WSJ, the two remaining DOJ IG reports on politicization will be released before the election.
  • The Civil Rights division IG report–that investigating Shorter Schloz and Hans von Spakovsky–may include criminal referrals.
  • The larger US Attorney purge IG report will show that the Kyle Sampson and Rove lackey Chris Oprision deliberately hid Rove’s role in the firings on at least two occasions.
  • As the Administration continues to stall on Miers and Rove testimony at the same time as these reports come out, it will be increasingly clear to the public that Bush is stalling precisely because he is trying to cover up the real White House involvement in the US Attorney purge.

I’d be happy if all this came to pass–but I’m a little skeptical, based on three things.

First, when asked by the Senate Judiciary Committee when his reports on the Civil Rights and US Attorney purge would be done, Glenn Fine said he didn’t know–he had to follow whereever the evidence led, and therefore couldn’t know how long it would take to finish up the reports. He specifically said he couldn’t guarantee they’d be done before the election. Read more →

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Nixon Sez: Karl Rove Must Testify

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As I explained in this post, Judge Bates has issued a ruling in the House’s suit to force Harriet Miers and Josh Bolten to respond to the House Judiciary Committee subpoenas with regards to the US Attorney firings.

With regards to the Miers and Bolten subpoena, Bates emphasizes, his ruling is fairly narrow, in that he doesn’t resolve the question of whether or not the White House was right to invoke executive privilege.

It is important to note that the decision today is very limited. To be sure, most of this lengthy opinion addresses, and ultimately rejects, the Executive’s several reasons why the Court should not entertain the Committee’s lawsuit, but on the merits of the Committee’s present claims the Court only resolves, and again rejects, the claim by the Executive to absolute immunity from compelled congressional process for senior presidential aides. The specific claims of executive privilege that Ms. Miers and Mr. Bolten may assert are not addressed — and the Court expresses no view on such claims.

Basically, then, his ruling requires Harriet Miers to show up before the House Judiciary Committee and invoke executive privilege on a question by question basis. And it requires Josh Bolten (who was subpoenaed to turn over a bunch of documents pertaining to the US Attorney firing), to turn over any non-privileged documents, and provide a description for anything not turned over and the basis for the claim of privilege. In other words, even assuming the White House accepts this ruling (I expect them to at least try to appeal it), the White House and HJC are still bound to get in an argument over whether or not the White House’s claim of privilege outweighs HJC’s claim to need the information to conduct its oversight duties.

So with respect to Miers and Bolten, this decision is narrow and somewhat inconclusive.

But with respect to Rove, this decision makes it very clear that Rove must show up to testify–and (unless the White House invokes executive privilege with respect to the HJC subpoena of Rove, which they haven’t done) he must answer all questions. That’s because the sole basis the White House gave to justify Rove blowing off HJC’s subpoena was "absolute immunity"–the White House did not invoke executive privilege with regards to this subpoena.

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