Tying Up Loose Ends

This is interesting. In the waning days of the Bush Administration, outside actors - not connected to Obama or his transition team - are threatening accountability and rollback on two key subversions of the rule of law: the US Attorney purges and the retroactive immunity for telecoms involved in the warrantless surveillance program.

First, on the US Attorney probe. Nora Dannehy has been charged with investigating the matter, and she's getting to work.

Attorney General Michael B. Mukasey appointed prosecutor Nora R. Dannehy two months ago, after the department's Office of Inspector General and Office of Professional Responsibility reported that they had hit a roadblock in their lengthy probe into whether political interference prompted the dismissals. Internal investigators said they had been stymied by the refusal of key witnesses, including former presidential adviser Karl Rove and former White House counsel Harriet E. Miers, to cooperate.

By naming a federal prosecutor to determine whether crimes have been committed, the attorney general ensured that authorities would have the power to compel testimony and documents. Dannehy, a longtime assistant U.S. attorney in Connecticut, in recent weeks has met with lawyers and government officials involved in the case. A grand jury in the District has issued subpoenas, the sources said [...]

D. Kyle Sampson, who served as the chief of staff to Gonzales until his March 2007 resignation, recently took a leave from his job as a partner at the law firm Hunton & Williams while the investigation proceeds. A spokeswoman for the law firm said he is on leave "pending admission to the D.C. bar."

The report by Inspector General Glenn A. Fine singled out Sampson for offering testimony that was "not credible" and "unpersuasive." The authorities also concluded that Sampson had committed "misconduct."

Well that's... interesting. Dannehy appears to be making real progress, not just with Sampson, but according to Zachary Roth, with Fredo Gonzales.

In an interview with TPMmuckraker, Bob Bork Jr., who serves as a spokesman for the ex-AG, initially said that although Gonzales' lawyer, George Terwilliger III, had reached out to Dannehy at the start of her investigation, he didn't believe that Dannehy had formally contacted Gonzales or Terwilliger in connection with the probe.

But Bork Jr. called back an hour later to say that he had been mistaken about that. "We won't be able to talk about any interactions with DOJ," he now said.

In other words, it would appear, Dannehy has contacted Gonzo and/or his lawyer.

In the WaPo article Terwilliger is whining that the whole matter should be closed, probably because he wants it shut down before an Obama Administration less sympathetic to his wishes comes into power. I believe the Dannehy investigation has a short shelf life, but if she were to hand out a few indictments there would at least be some measure of accountability.

Speaking of which, the Electronic Frontier Foundation was in court yesterday, seeking to invalidate the Congressional action that immunized the phone companies from prosecution for their role in illegal wiretapping. Marcy Wheeler notes that the judges questions are far more probing than expected, and certainly not befitting someone inclined to rubber stamp the President and the Congress.

But given the questions Judge Walker has posed to the Administration, it looks like it won't be that easy. For example, there's this question, which highlights just how nutty this retroactive immunity is:

"What exactly has Congress created with § 802 (in Pub L No 110-261, 122 Stat 2467, tit II, § 201 (2008))? It does not appear to be an affirmative defense but rather appears to be a retroactive immunity for completed acts that allegedly violated constitutional rights, but one that can only be activated by the executive branch. Is there any precedent for this type of enactment that is analogous in all of these respects: retroactivity; immunity for constitutional violations; and delegation of broad discretion to the executive branch to determine whether to invoke the provision? "

He goes from there to ask several more questions getting at that pesky separation of powers thing. You know--separation of powers, which says that the courts have the ajudicatory function?

"In making the certification called for by section 802(a)(5), is the Attorney General performing an adjudicatory function? That is, is he not making a determination that only a court can make?"

They are all good questions. And they suggest that Walker is not going to simply roll over and abdicate his Article III function. Which probably means this will be appealed beyond the time when the Bush Administration leaves office.

Judges aren't inclined to having their power usurped.

There are still vestiges of the American system left that allow for a modicum of accountability. If it were up to the aristocrats running things, all of this would be shut down. They haven't obliterated the rule of law... yet.