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.

Read more →

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.

David Iglesias Doesn’t Think Those Were Karl Rove’s “Official Duties,” Either

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iglesiasbook.jpgYesterday, I posted a YouTube from Governor Siegelman responding to my question about whether he thought Rove’s involvement in Siegelman’s prosecution could possibly be part of Rove’s "official duties," as Fred Fielding has claimed.

I asked David Iglesias the same question–whether he thought the activities that the House Judiciary Committee subpoenaed Rove about in May really pertained to Rove’s "official duties." Iglesias doesn’t seem to think those are Rove’s "official duties" either. He points out how dangerous Fred Fielding’s claim is:

Claiming that the performance of "official duties" includes possible unlawful or criminal activity sets a dangerous new precedent, namely that as long as an advisor works in the West Wing of the White House, they have carte blanche to engage in any possible activity without being subject to the rule of law.

Iglesias is right. My gripe with the "official duties" claim is that, in the Siegelman case (which was explicitly named in Rove’s subpoena), Rove’s actions might be legal, so long as they weren’t "official duties" (because then they’d become a massive violation of the Hatch Act). But in Iglesias’ case, the actions are, by themselves, probably obstruction of justice (not to mention another massive violation of the Hatch Act). The actions are, by themselves, probably illegal.

Yet, strictly by deeming those activities part of Rove’s "official duties"–with no sanction or review from DOJ–Fielding claims Bush can grant Rove Absolute Immunity from testifying before Congress.

That is a dangerous precedent indeed.

How Could It POSSIBLY Be Part of Karl Rove’s “Official Duties” to Hijack DOJ?

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The biggest two regrets I have about Netroots Nation is that I arrived too late to meet either Governor Siegelman or Richard Clarke.

But I did manage to get the folks at Brave New Films to pose the question I’ve been asking for over a week to Governor Siegelman: How can Fred Fielding claim that the actions about which the House Judiciary Committee subpoenaed Karl Rove to testify were related to his "official duties"?

Governor Siegelman is just as mystified by the question as I am:

How could it possibly be part of Karl Rove’s offical duties to hijack the Department of Justice and use it as a political tool to prosecute those people whom they don’t like or people whom they think are political opponents?

Karl Rove was involved in the allocation of resoures to the Department of Justice and there is a question, certainly a question is raised as to his conduct and the people that he put into place over at the Department of Justice and whether they were programmed to abuse power for political reasons.

Update: Title fixed per skdadl. 

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 →

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. 

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 →

CREW Goes After Elston and McDonald’s Bar Memberships

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Remember when I complained that DOJ IG had concluded it could do nothing to punish Mike Elston and Esther McDonald? Well, CREW’s not satisied with that, so they’re lodging complaints in all the states in which the two alleged law-breakers have bar memberships.

Today, Citizens for Responsibility and Ethics in Washington (CREW) filed bar complaints against former Department of Justice officials Michael J. Elston and Esther Slater McDonald. CREW based its complaint on the report recently released by the Department of Justice’s (DOJ) Office of Inspector General and Office of Professional Responsibility, An Investigation of Allegations of Politicized Hiring in the Department of Justice Honors Program and Summer Law Intern Program (DOJ Report).

According to the DOJ Report, Mr. Elston, formerly Chief of Staff and Counselor to Deputy Attorney General Paul McNulty, and Ms. McDonald, formerly Counsel to Acting Associate Attorney General William Mercer, violated federal law and DOJ policy by making hiring decisions based on political and ideological affiliations. Both Ms. McDonald and Mr. Elston rejected applicants who they believed to be liberal or who had worked for Democrats.

Mr. Elston is a member of the Virginia, Kansas, Illinois and Missouri state bars and Ms. McDonald is a member of the District of Columbia and Virginia bars. CREW filed its complaints, with the DOJ Report attached, against Ms. McDonald in the District of Columbia and the complaint against Mr. Elston in Virginia, but sent copies to the other jurisdictions.

At the very least, one would hope this would embarrass the big corporate firms these two alleged law-breakers work for. After all, it appears that Alberto Gonzales still has only temporary employment. If all these hacks found themselves unemployable because of what they did, that’d be a start.