Rove A No-Show

I had a tip that Karl Rove was going to show up at a House Judiciary Committee hearing yesterday, but I held off on reporting it because I got a qualified "maybe." Turns out I was right to hesitate:

So today was the day that Karl Rove was supposed to appear before the House Judiciary committee to testify about the US Attorney firings. And of course, Rove didn't show.

That wasn't a surprise. After getting the deadline pushed back, Rove had already publicly indicated he didn't plan on being there, citing President Bush's claim of executive privilege. Rove's lawyer had then asked for a second postponement, a request that Judiciary chair John Conyers had declined to grant.

So Rove is in violation of an issued subpoena. Yet the Obama Administration has until March 4 to deliver an Appeals Court brief over what to do with the sought testimony of Harriet Miers and Josh Bolten. Emptywheel wonders about the connection between the two:

Now, I have no reason (besides noting the coincident dates) to believe that there's a connection between the additional week extension on the Appeals Court brief and any response to Rove's latest contempt for an HJC subpoena.

But I do note that if Rove were immediately held in contempt by HJC and if the House were to act with any dispatch to vote on contempt, Rove might well be in contempt by the time Obama briefs the Appeals Court a week from Wednesday. Mind you, things like that don't usually happen so quickly in the House. But it would make the discussion about the Appeal more interesting.

I think the White House is trying to make a deal acceptable to all sides. It would be good for John Conyers and HJC to force their hands. Eventually, we have to have a framework where executive privilege isn't used as a way to evade accountability.

Make It Stop

I'm getting a little tired of seeing headlines with "sticks with the Bush position" in them.

The Obama administration on Friday told a federal judge it would not deviate from the Bush administration's position that detainees held at a U.S. air base in Afghanistan have no right to sue in U.S. courts.

In one of his first acts in office, President Barack Obama ordered the closure within one year of the Guantanamo Bay detention center, which has been widely criticized by rights groups and foreign governments. About 245 people are currently held at Guantanamo, according to the Pentagon.

However, Obama has not yet decided what to do about the makeshift prison at the U.S. military base in Bagram, where the U.S. government is holding more than 600 prisoners, or whether to continue work on a $60 million prison complex there.
In late January, Obama directed a task force to study the government's overall detainee policy and report back to him in six months.

But the new administration faced a February 20 deadline to tell U.S. District Court Judge John Bates whether it would "refine" the Bush administration's position on four men being held at Bagram who have filed suit against their detention.

In a brief filing with the court on Friday, the Justice Department said it would stick to the previous government's position, which argued the four men -- who have been detained at Bagram for over six years -- had no right to challenge their detention in a U.S. court.

There is little to recommend here. In a substantive sense, Bagram and Guantanamo are hardly different. Many of the detainees have been in both camps. There are just as many stories of human rights abuses at Bagram (including the homicide of Dilawar, the taxi driver whose experience is chronicled in last year's Oscar-winning documentary Taxi To The Dark Side). To separate the two at all is really dastardly. Just because Gitmo is more well-known doesn't make the sins of Bagram acceptable.

And here's another example of the Obama Administration adopting a Bush-era stance on an issue of executive power:

Two advocacy groups suing the Executive Office of the President say that large amounts of White House e-mail documenting Bush's eight years in office may still be missing, and that the government must undertake an extensive recovery effort. They expressed disappointment that Obama's Justice Department is continuing the Bush administration's bid to get the lawsuits dismissed.

Recently, the Bush White House said it had located 14 million e-mails that were misplaced and that the White House had restored hundreds of thousands of other e-mails from computer backup tapes.

"The new administration seems no more eager than the last" to deal with the issue, said Anne Weismann, chief counsel for Citizens for Responsibility and Ethics in Washington, the other group that sued the EOP.

The Executive Office of the President includes the president's immediate staff and many White House offices and agencies.

Tom Blanton, director of the National Security Archive, noted that President Barack Obama on his first full day in office called for greater transparency in government.

The Justice Department "apparently never got the message" from Obama, Blanton said.

I'm sure that some of this is because the Administration doesn't want to get ahead of itself and make the determinations on these cases on their terms, and there are also zombie lawyers arguing these cases, holdovers from the Bush Administration, and we are very early in the new people getting to the job and asserting their will. But we have the previous regime committing very serious crimes and the new team not wanting to deal with them, frankly, so they're trying to dismiss lawsuits or keep practices in place to bury the evidence. It doesn't work that way, however. Eventually, the truth comes out, and by implicating themselves deeper into this mess, they cannot claim to be turning the page on anything or deserving of a new level of respect around the world or at home.

There's another opportunity on this coming Wednesday. A federal judge is setting that deadline for the Administration to weigh in on the subpoenas of Harriet Miers and Josh Bolten in the US Attorneys scandal. Will they back George Bush's claim of executive privilege covering these two aides and preventing them from testimony before Congress, or will they reject it? There are implications for Karl Rove's testimony as well. The new White House counsel is urging Rove's lawyers to work out a deal with Congress, probably so he doesn't have to weigh in himself. This could be good or bad, and since the White House's motion for continuance was denied, we'll know more by Wednesday. I'm tired of being disappointed on these issues.

You Don't Get Your Oversight - DC Circuit Puts Off Miers/Bolten Subpoenas Until Bush Leaves Office

Harriet Miers and Josh Bolten won't be testifying to Congress anytime soon. Not until their Dear Leader is on an island somewhere:

Time will run out on this year's congressional session before the battle between two branches of government can be resolved, according to the ruling by a three-judge panel on the U.S. Court of Appeals for the District of Columbia Circuit.

The ruling essentially pushes any resolution on the politically charged case until next year.

"The present dispute is of potentially great significance for the balance of power between the legislative and executive branches," wrote the panel of judges, two of whom were appointed by Republicans.

Still, the judges wrote, "Even if expedited, this controversy will not be fully and finally resolved by the judicial branch ... 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."

There you have it, folks. The White House has basically altered the relationship between the executive and legislative branch permanently. Future Presidents now know that if they push aggressively enough, if they evade oversight and subpoenas and dare the Congress to stop them, nothing will come of their actions, no matter how illegal they are.

It's worth going back and understanding what the White House actually did in this case, a series of events now illuminated by the recent OIG report on Justice Department politicization, the facts of which did nothing to persuade the circuit court that decisive action needed to be taken. We now know that the executive branch, led by Karl Rove, absolutely played a role in the firing of US Attorneys in 2006. There are emails between Rove and officials in New Mexico proving his role in the firing of David Iglesias, for example, because of Iglesias' refusal to swiftly prosecute Democrats and bogus voter fraud cases. They made room for a political friend of Rove's, Tim Griffin, at the US Attorney's office in Arkansas by firing Bud Cummins. And they conspired with Senator Kit Bond to remove the federal prosecutor in Missouri:

In Missouri, evidently, Republican politics are exceptionally bloody, with clans fighting like rival mobs whose carnage spreads to other locales and sweeps in innocent civilians.

This is what former U.S. attorney Todd P. Graves discovered when he was ousted in January 2006 by the Justice Department. He got his first inkling of trouble in 2004 not from the department, but from an aide to Sen. Christopher S. Bond (R-Mo.), whose office was then embroiled in a bitter dispute with Graves's brother, a U.S. congressman.

In a telephone call, the aide angrily warned Graves that if he did not intervene on Bond's behalf -- against his brother's chief of staff -- the senator "could no longer protect [his] job." Graves refused, and a little over a year later, he was bounced from his Kansas City office after Bond's staff made repeated complaints to the White House counsel's office.

More on the Graves firing here.

This is all out in the open despite pervasive, continuous stonewalling on the part of White House officials, refusing to comply with any and all investigations into their conduct, including the OIG report put together by their own Justice Department. But the evidence is nonetheless clear and thorough.

The White House's active involvement in the firings, as depicted in the report, can be divided into two broad categories: First, its role in initiating and promoting the overall plan to remove an unspecified number of U.S. attorneys -- traditionally treated as apolitical prosecutors who operate independently from the political agenda of the administration -- deemed insufficiently committed to the Bush agenda. And second, its apparent work in pushing specifically for several of the most high-profile dismissals.

You can see the wealth of evidence at the handy link from TPM Muckraker. It need not be repeated here.

What must be repeated is how easily the White House has evaded any accountability for these clear crimes of politicization of the Justice Department. They took advantage of the lack of teeth in such federal statutes like the Hatch Act, which offers remedies only to the firing of those responsible, by having the perpetrators resign. They allowed an investigation to be released but only one coming from an internal monitor, not an independent investigation from Congress or a special counsel. The report was so damning that the Attorney General was forced to name a prosecutor to investigate the crimes further, but he refused to make her independent from the DoJ, and he gave her a 60 day mandate so that the investigation could not spread beyond the current Presidential term in office, after the election and before the new President begins his term. And now, as that investigation will be wrapped up before Miers, Bolten or anyone else would ever have to testify, their testimony will not factor into this accelerated timeline.

Indeed, in order to get Miers and Bolten on the record, the House Judiciary Committee would have to file subpoenas all over again, as they will have expired, and go through the exact same stonewalling. Thus far absolutely nobody has paid even the smallest price for the US Attorney purges, other than moving from their cushy jobs to some other cushy wingnut welfare sinecure.

This is the crisis of accountability we are facing due to the expansiveness of executive power over decades and consistent enabling from the Congress as they fail time and again to enact basic oversight in real time. This scandal represents the failure of our system, a loophole in the Constitution that extremists have successfully exploited.

The Simmering US Attorneys Scandal

This is something else I mentioned in passing last week, but Murray Waas is doing some excellent reporting on the US Attorneys investigation coming out of the Justice Department, and he's alleging that it's starting to reach the inner circle:

The Justice Department investigation into the firings of nine U.S. attorneys has been extended to encompass allegations that senior White House officials played a role in providing false and misleading information to Congress, according to numerous sources involved in the inquiry.

The widened scope raises the possibility that investigators will pursue criminal charges against some administration officials, and recommend appointment of a special prosecutor if there is evidence of criminal misconduct.

The investigators have been specifically probing the role of White House officials in the drafting and approval of a Feb. 23, 2007 letter sent to Congress by the Justice Department denying that Karl Rove (President Bush's chief political adviser at the time) had anything to do with the firing of Bud Cummins, a U.S. Attorney from Arkansas. Cummins was fired in Dec. 2006 to make room for Tim Griffin, a protégé and former top aide of Rove's.

The February 23 letter stated, "The department is not aware of Karl Rove playing any role in the decision to appoint Mr. Griffin," and that the Justice Department was "not aware of anyone lobbying, either inside or outside of the administration, for Mr. Griffin's appointment."

Federal investigators have obtained documents showing that Kyle Sampson, then-chief of staff to Attorney General Alberto Gonzales, and Chris Oprison, then an associate White House counsel, drafted and approved the letter even though they had first-hand knowledge that the assertions were not true. The Justice Department later had to repudiate the Sampson-Oprison letter and sent a new one informing Congress that it could no longer stand by the earlier assertions.

That's a thin strand on which to hang an entire probe of politicization from the White House to the Justice Department. And that IG report as well as the report from the Office of Professional Responsibility cannot remand anyone to a grand jury, nor can they punish anyone outside of DoJ officials. So a special prosecutor is absolutely needed to determine wrongdoing, though they can recommend a criminal investigation.

But if the report is strong enough about the cover-up as it is about the underlying crimes, that could create a lot of pressure within the next Administration.

This takes us to Congress' investigation of the same matters, and the Bush Administration's continued invocation of executive privilege despite being smacked down in the contempt court case by a conservative judge and told that Harriet Miers and Josh Bolten must testify (and Karl Rove, in a separate complaint, as well). Waas, in a separate post at Crooks and Liars, argues that it would be in the Republican Party's best interest for Rove and Miers and Bolten to testify before the fall elections:

At some point long before the election, the Justice Department will release its long-awaited investigative report on the firings of the U.S. attorneys. And as I reported tonight at Huffington Post, a good portion of that report is going to be about the role of senior White House officials in shaping misleading testimony and correspondence about the firings to Congress.

Besides the report on the U.S. attorney firings, the Justice Department’s Inspector General is also readying a release for public release sometime probably long before election day about the politicization of the Justice Department’s Civil Rights Division under the Bush administration.

Not only is that report virtually certain to be scathing, but relations between investigators and former Bush appointees in the Civil Rights Division have become so contentious that prosecutors have had to resort to using a grand jury to compel testimony, because many of the former Justice Department attorneys have refused to voluntarily be interviewed by the Inspector General.

Also what might not be a good omen for what might be in that report is that a federal grand jury is reportedly considering criminal charges against one former senior Bush administration appointee in the Civil Rights Division, Bradley Schlozman [...]

So at a minimum, the Justice Department is likely to release two devastating reports on the Bush administration this fall or even earlier. Worse, we might also learn that Justice’s Inspector General has sought either a criminal probe of some officials or even a special prosecutor. (The Inspector General does not have prosecutorial powers [...]

The continuous claims of executive privilege– whatever the motive for them being invoked– are going to appear more and more to the public 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.

I really don't think this holds. I don't recall the President being particularly concerned with the fate of the Republican Party - if he was then he could have done about a thousand things differently throughout the second term. And while the US Attorneys scandal has captured the imagination of the blogosphere I haven't seen it become very widespread beyond that. Indeed, the Monica Goodling report on illegal hiring practices barely registered a blip. What Waas is reporting is more damaging - senior DoJ officials lying to Congress because they were misled by Rove himself - but it's still complex and labyrinthine and there's a certain Presidential election sucking up a lot of oxygen. I think this investigation is still crucially important - particularly for the future, as a President Obama should be encouraged to appoint a special prosecutor - but I don't really see it being an electoral issue except in a few key districts. Marcy Wheeler seems to agree.

That said, there's some very juicy stuff here.

And the probe by the Justice Department's IG and OPR and firings of nine U.S. attorneys is only one of three internal DOJ investigations that have the potential of morphing into criminal probes of the Bush administration--and even the appointment of a special prosecutor. DOJ's IG is probing whether former Attorney General Gonzales testified truthfully to Congress about the administration's warrantless electronic eavesdropping program. A probe by OPR is investigating whether government attorneys acted within the law in authorizing and overseeing the eavesdropping program [...]

Apparently, advances in the investigations have been spurred by key emails that the Bush administration has withheld from Congress--claiming executive privilege--and that have now been obtained by DOJ investigators.

Among other things those documents show that Oprison, the associate White House counsel, knew that Rove was involved in the US Attorney firing when he reviewed drafts of the letter and approved final language claiming Rove was not involved [...]

Sampson also played a central role in the drafting of a January 31, 2007 letter from acting Assistant Attorney General Richard Hertling to Sen. Mark Pryor (D-AR) implying that the White House had never contemplated using an obscure provision in the USA PATRIOT Act to install Griffin as a U.S. attorney without Senate confirmation.

Gonzales and Sampson later changed course completely--when confronted with evidence to the contrary--and testified to the Senate Judiciary Committee that the Bush administration did indeed consider using the PATRIOT Act to install Griffin as a federal prosecutor.

These are real crimes and the senior staff is right to be nervous. When Bush leaves office, his leverage in keeping a lid on these investigations immediately begins to dissipate. This is why they're all so interested in pre-emptive pardons.

Unexpected

This would be a major victory for the separation of powers:

A federal judge has sided with Congress in its fight with the Bush administration over whether top White House aides can be subpoenaed by Congress.

The House Judiciary Committee wants to question the president's chief of staff, Josh Bolten, and former legal counsel Harriet Miers, about the firing of nine U.S. attorneys.

But President Bush says they are immune from such subpoenas. They say Congress can't force them to testify.

U.S. District Judge John Bates said there's no legal support for that stance. He refused to throw out the case and said the aides can be subpoenaed.

The case always rested on the Bush Administration's conception of the executive branch as a kingship. Even the judge from Ken Starr's grand jury is balking at that one. This is from the opinion:

Indeed, the aspect of this lawsuit that is unprecedented is the notion that Ms. Miers is absolutely immune from compelled congressional process. The Supreme Court has reserved absolute immunity for very narrow circumstances, involving the President’s personal exposure to suits for money damages based on his official conduct or concerning matters of national security or foreign affairs. The Executive’s current claim of absolute immunity from compelled congressional process for senior presidential aides is without any support in the case law.

We have a President, not a king. Who knew?

Of course, paraphrasing Andrew Jackson, the judge has made his decision, now let him enforce it.

(if they can, this has major implications for Karl Rove)

On the Other Hand...

And now, in my typically schizophrenic way, let me talk about some of the good things going on in Congress.

Nancy Pelosi did file the lawsuit against Josh Bolten and Harriet Miers, in an attempt to force them to testify in the US Attorney firings. This is a case where the lawsuit is arguably more important than the information Congress wants to receive as a result of it. The separation of powers and the need for Congress to conduct meaningful and Constitutionally mandated oversight is crucial to our continuing as a democracy. Furthermore, it's time we nipped the expansion of "executive privilege" in the bud. George Bush has taken it to mean that everyone who ever talked to the President at any point is covered by the privilege, even if, as he admits, he had no discussion with these two over the US Attorney firings. Despite what should be an open and shut case, the dark cloud on the horizon is this:

The case was assigned to U.S. District Judge John Bates, an appointee of President Bush and a former prosecutor in the Whitewater criminal investigation of the Clintons in the 1990s.

This is really not good because if the precedent becomes Bush's theory of executive privilege, we've lost Congress as a viable entity. But if Congress did nothing, the same precedent would hold. So they have to press this.

We've also seen hearings on executive pay last week, and once that gets into the ugly light of day it'll be hard for CEOs to continue enriching themselves to the ridiculous degree they do. I liked my Congressman's statement on the two Americas.

“There seem to be two economic realities operating in our country today,” Representative Henry A. Waxman, Democrat of California, the committee chairman, said as the hearing opened Friday morning. “Most Americans live in a world where economic security is precarious and there are real economic consequences for failure. But our nation’s top executives seem to live by a different set of rules.”

Most important, there's talk of a new FISA deal in the House, which is substantially better than the first leaked deal from last week.

In continued defiance of the White House, House Democratic leaders are readying a proposal that would reject giving legal protection to the phone companies that helped in the National Security Agency’s program of wiretapping without warrants after the Sept. 11 attacks, Congressional officials said Monday.

Instead of blanket immunity, the tentative proposal would give the federal courts special authorization to hear classified evidence and decide whether the phone companies should be held liable. House Democrats have been working out the details of their proposal in the last few days, officials said, and expect to take it to the House floor for a vote on Thursday….

It would impose tougher restrictions on National Security Agency eavesdropping than the Senate version does by requiring court approval before the agency’s wiretapping procedures, instead of approval after the fact. It would also reject retroactive immunity for the phone carriers [...]

Under the proposal, the courts would be given authority to hear classified evidence in the civil suits — perhaps on an “ex parte” basis, with only one side in attendance — to determine whether the companies are immune from liability. Officials said the proposal would most likely give that authority to a federal district court, but it is possible that the Foreign Intelligence Surveillance Court in Washington could be given that authority instead….

If the telecoms could present evidence in their defense, a key argument made by the Bush Administration, that the phone companies can't defend themselves in court and therefore need immunity, would be lost. Moving the decision to the federal courts on whether or not to give immunity also makes more sense than allowing Congress to do it. This is not a bill that would ever be signed, but it strings out the discussion of the bill. Personally I don't think anything should pass. And the continuing negotiations on FISA suggests that nothing will this year. Once again, there's no public constituency for telecom amnesty, and thus no reason to give it to a Bush Administration that just wants to immunize themselves.

Big Day In The Annals Of Contempt Of Congress

Just hours after Nancy Pelosi demanded that the Attorney General direct the US Attorney for DC to act on contempt citations for Josh Bolten and Harriet Miers, the Attorney General replied, "Yeah, I'm going to have to go with no."

Attorney General Michael Mukasey on Friday rejected referring the House's contempt citations against two of President Bush's top aides to a federal grand jury. Mukasey says they committed no crime.

Mukasey said White House Chief of Staff Josh Bolten and former presidential counsel Harriet Miers were right in refusing to provide Congress White House documents or testify about the firings of federal prosecutors.

"The department will not bring the congressional contempt citations before a grand jury or take any other action to prosecute Mr. Bolten or Ms. Miers," Mukasey wrote House Speaker Nancy Pelosi.

It's a good thing we have someone so wise at the Justice Department to put his judgment in front of the letter of the law. Both Dianne Feinstein and Chuck Schumer must be so proud of their little angel.

Pelosi responded swiftly, and in fine fashion:

“Anticipating this response from the Administration, the House has already provided authority for the Judiciary Committee to file a civil enforcement action in federal district court and the House shall do so promptly. The American people demand that we uphold the law. As public officials, we take an oath to uphold the Constitution and protect our system of checks and balances and our civil lawsuit seeks to do just that.”

Of course, there is another way that doesn't tie up the case years into the future as it winds through the court system, and that's inherent contempt.

Under the inherent contempt power, the individual is brought before the House or Senate by the Sergeant-at-Arms, tried at the bar of the body, and can be imprisoned. The purpose of the imprisonment or other sanction may be either punitive or coercive. Thus, the witness can be imprisoned for a specified period of time as punishment, or for an indefinite period (but not, at least in the case of the House, beyond the adjournment of a session of the Congress) until he agrees to comply. The inherent contempt power has been recognized by the Supreme Court as inextricably related to Congress’s constitutionally-based power to investigate.

Extreme, to be sure. Which is exactly what is called for in this case. The Administration is thumbing its nose at the Congress. The Congress appeals to the legal system but the Administration also controls that through the Justice Department. This is a scandal about US Attorneys and a US Attorney who WASN'T on the firing list, i.e. a "loyal Bushie," is hardly to be expected to prosecute. If this eventually goes all the way to the Supreme Court, there are plenty of "loyal Bushies" on there as well. But as it's a "political question" that the courts will likely find the other branches to need to settle amongst themselves, that's not likely. Inherent contempt is the only process where Congress doesn't have to rely on another government branch. Quoting Kagro X:

Let's face it: if the "administration" simply refuses to budge, the Congress either has to fold its tent and go home, or enforce on its own authority the subpoena power the American people voted for. Given that we've reached this impasse -- and we knew it was coming -- over an investigation into the hyper-partisan and hyper-politicized nature of the U.S. Attorneys, inherent contempt proceedings would appear to be the first and most direct resort of Congress in enforcing its mandate.

It would also appear to be the last stop short of impeachment. And with that remedy currently "off the table," Congress needs to speak -- and speak soon -- about how it intends to protect its prerogatives.

So far, that answer has been "not at all." So it's really a stark choice: either move forward with inherent contempt, impeachment, or go home. I know the Democratic leadership has their fingers in their ears until next January, just trying to run out the clock on the Bush Administration. Thing is, Bush has the same idea; he wants to get away with his crimes, protect his secrets and immunize himself, his staff, and his corporate partners. The only people standing in the way are members of Congress, and they're standing like bowling pins, waiting for the next strike to send them flying.

Pelosi recognizes that the future of Congress as a co-equal branch is at stake, but refuses to play as close to the edge as the White House. You're not going to win that way, and in this case "winning" isn't just a political victory, but a victory for the relevance of American government. Not worth risking that to get an extra few more electoral votes.

Murmurs of a Cave on FISA

I was just about to write a post about how the Democrats were getting some backbone. This week we've had Nancy Pelosi pursuing contempt of Congress citations for Josh Bolten and Harriet Miers strenuously, Democrats in the Senate holding firm on a proposal to reverse bankruptcy laws to protect homeowners subject to foreclosure, and House oversight investigators even forcing John Ashcroft to testify over no-bid contracts awarded to the US Attorney for New Jersey Chris Christie. And in the face of a ridiculous series of attacks by the White House and right-wing groups over FISA, the Democrats appeared to be unafraid.

Except:

To break an impasse over legislation overhauling the Foreign Intelligence Surveillance Act, House Democratic leaders are considering the option of taking up a Senate-passed FISA bill in stages, congressional sources said today. Under the plan, the House would vote separately on the first title of the bill, which authorizes surveillance activities, and then on the bill's second title, which grants retroactive legal immunity to telecommunications companies that aided the Bush administration's warrantless electronic surveillance activities. The two would be recombined, assuming passage of both titles. In this way, Democratic leaders believe they can give an out to lawmakers opposed to the retroactive immunity provision. Republican leadership sources said their caucus would back such a plan because not only would it give Democratic leaders the out they need, it would provide a political win for the GOP. It remains to be seen if such a move will placate liberal Democrats who adamantly oppose giving in to the Bush administration on the immunity issue.

House Speaker Pelosi said that Democrats hope to have a solution worked out by March 8. But she also indicated that Democrats want language included in the bill that would clarify that FISA is the exclusive means under which the government can conduct electronic surveillance. The White House and some congressional Republicans have argued that the 2001 authorization of military force to launch the war on terrorism gave Bush the authority to conduct warrantless electronic surveillance. They also say the president has inherent constitutional authority to do what is necessary to protect the country. Senators have battled over whether to include so-called exclusivity language in their FISA bill. In the end, an amendment from Sen. Dianne Feinstein, D-Calif., that states FISA is the exclusive means for conducting electronic surveillance failed to win a needed 60 votes in a roll call that split mainly along party lines.

This has all the makings of a trial balloon, being floated to see what the membership and the outside issue groups think. The ACLU is, um, not pleased.

We vehemently oppose the Senate’s Title 1 that allows mass, untargeted surveillance of every communication coming into and going out of the United States . If the House is to take up the measure, we greatly hope that important safeguards are built back in far above and beyond “exclusivity.” There really is no benefit to declaring FISA the exclusive foreign intelligence surveillance law if it allows the AG and DNI to singlehandedly decide when tap innocent Americans on American soil.

This should be really simple. The telecoms knowingly broke the law. They shouldn't be taken off the hook for doing so. And FISA is perfectly fine to protect the country from terrorists while respecting civil liberties. The President is a reviled figure and his bleatings have produced little or no momentum in the public. There's simply no reason to do this.

Peter Sussman, a plaintiff in two of the lawsuits against phone companies, writes in the Sacramento Bee about how this deal would be un-American.

After Saddam Hussein was executed, President Bush reassured the world that the Iraqi dictator received "a fair trial – the kind of justice he denied victims of his brutal regime."

The Bush administration has similarly promoted "the rule of law" and "an independent judiciary" for countries such as Cuba, Burma and Iran.

Yet that same president is pressuring Congress to deny Americans our day in court before an independent judiciary by repealing the rules of law that guarantee the right to sue a private company for illegal infringements on our privacy rights.

Before Congress is sucked into this rhetorical swamp, consider that AT&T and other phone companies that buckled to secret administration demands for our records had a legal alternative: They could have insisted that the administration first obtain the court order that they – or their corporate attorneys – knew was necessary. That's what another large phone company apparently did, demonstrating more respect for the rule of law than AT&T apparently has. AT&T would have been legally obligated to respond to a valid warrant, saving "millions of lives" at that "very moment."

Instead, AT&T chose to violate federal and state law.

I and my fellow plaintiffs don't stand to win any money through our lawsuit, much less billions of dollars, but we do hope to assure governmental accountability, to open to public scrutiny the actions of corporations and government that have teamed up to deny citizens the rights guaranteed by law.

Your House member needs a phone call. There is no public constituency demanding that the phone companies get amnesty. The "rule of law," pro-Constitution constituency must rule the day.

Who's The Cult Leader, Now?

This "Obama is a cult" thing is starting to fly around in the media, and yet things like this go virtually unnoticed:

Few visitors will venture far from the usual sites to see a spectacular exhibit -- just a short walk from the Mall -- that so very much captures the spirit, the essence, the greatness of this shining city on a hill.

Yes, it's the beautifully designed photo homage to one of our nation's leaders, Secretary of Housing and Urban Development Alphonso Jackson. The photo exhibit is boldly and proudly displayed in the lobby of HUD's headquarters building, itself a dreadful gray relic of Great Society architecture.

Tour groups need not even go through the inviting metal detectors to admire 20 large, color photographs of the secretary, each about 2 feet by 3 feet. No fewer than five of them feature Jackson with President Bush-- in the Rose Garden, in the Oval Office, chatting together, coming down the steps at the Capitol.

The photographs cover an entire wall of the lobby as you enter, passing two other photos, the smaller official ones, of Bush and his old buddy from Texas days, side by side to greet you.

I mean, we have a White House Chief of Staff who has a wall collection of pictures of Bush's HANDS at key moments in his life.

And we're talking about some OTHER politician leading a cult?

This, of course, is an example of the attacks we're going to start seeing with regularity if Obama, as presumed, becomes the nominee. We'll see more baseless insanity masquerading as analysis like this:

Obama and I are roughly the same age. I grew up in liberal circles in New York City — a place to which people who wished to rebel against their upbringings had gravitated for generations. And yet, all of my mixed race, black/white classmates throughout my youth, some of whom I am still in contact with, were the product of very culturally specific unions. They were always the offspring of a white mother, (in my circles, she was usually Jewish, but elsewhere not necessarily) and usually a highly educated black father. And how had these two come together at a time when it was neither natural nor easy for such relationships to flourish? Always through politics. No, not the young Republicans. Usually the Communist Youth League. Or maybe a different arm of the CPUSA. But, for a white woman to marry a black man in 1958, or 60, there was almost inevitably a connection to explicit Communist politics.

Shorter National Review writer - I knew someone who knew someone who was part black and part Jewish, therefore Obama is a Communist!!!1! Almost as good as there was a poet from Hawaii named Frank who joined the Communist Party at some point, therefore...

These stories aren't meant to convince anybody, they serve as a backdrop. It manifests itself when the right finds a bill or some policy paper that they can elevate into a full-fledged hissy fit, as they are now doing in a very off-the-radar-screen kind of way:

It isn't a high-profile bill, but the Global Poverty Act has lit up the conservative blogosphere, and even Rush Limbaugh has gotten into the act.

Quietly approved by the House of Representatives last fall with bipartisan support, the bill, sponsored by Rep. Adam Smith, D-Wash., would require the president to develop and implement a comprehensive strategy to help reduce extreme global poverty.

Conservative critics, including Limbaugh, Tony Perkins — who heads the Family Research Council — and others, claim that the measure would cost U.S. taxpayers $845 billion over the next dozen or so years. They also charge that it would tie the United States to the United Nations Millennium Declaration, which, among others things, calls for banning "small arms and light weapons" and ratifying the Kyoto global-warming treaty, the International Criminal Court Treaty and the Convention on Biological Diversity [...]

Smith says there's no link and points out that there's no additional spending mandated in his bill.

He said the attacks weren't aimed at him but at Democratic presidential candidate Barack Obama, whom he recruited last year to be the bill's chief Senate sponsor. Smith is the chairman of the Obama campaign in Washington state.

Limbaugh, according to a transcript of his radio show, last week called the bill an effort to "soak U.S. taxpayers again to fund global, liberal feel-good garbage."

So it's not enough that (insert liberal here) will steal our hard-earned money and give it to the undeserving poor in this country, it's now that (insert liberal here) will steal our hard-earned money and give it to the undeserving poor all over the world. And with the background of "Obama is a Communist" from the far right, and probably worse from various email forwards and other sludge, the pieces fit together. Obama wants to realize Che's vision and install one world government to destroy the American way of life and make us all wear burqas, even the men, while the lucky duckies in Benin live it up with our cash.

(By the way, isn't Bush spending a week in Africa, the last place where he can show his face, to tout these kind of "handouts" like investment in decent medical care to stop the spread of AIDS and malaria?)

The progenitor of this "Obama is the Communist Robin Hood" attack that ties it up all in a bow is the same guy who's been pushing many of the far-right attacks on Obama, including the one that he knew some Communist named Frank in Hawaii.

The dustup began last week when Cliff Kincaid, a columnist for Accuracy in Media (www.aim.org), a conservative news-media watchdog organization, dismissed the bill and linked it to an effort by Democrats to burnish Obama's legislative credentials. His original column was widely distributed on Web sites ranging from www.fishingbuddy.com to www.capitolhillcoffeehouse.com.

On Wednesday, Kincaid ratcheted up his criticism.

"This is how the Washington game of spending more of your money works," he wrote. "This is a budget buster that siphons your hard-earned tax dollars to the U.N. and the rest of the world."

This guy is paid, and probably very well, by the wingnut noise machine to put these things out there into the ether and then find something to make the ridiculous sound plausible.

In fact, if there's any group that characterizes the behavior of a cult - moving in lockstep, making up wild fantasy stories that they will themselves and others into believing, ignoring mountains of evidence to arrive at their conclusions - it's the wingnut welfare crowd. Of course, that's the cult of the "I-Know-Where-My-Bread-Is-Buttered."

Constitution Can Wait

The Congress is too busy giving away money to people they hope to have vote for them (not that it's wrong, but some long-term regulatory and policy shifts instead of handouts would be nice) to bother themselves with the rule of law.

House Democrats will postpone votes on criminal contempt citations against White House chief of staff Joshua Bolten and former White House counsel Harriet Miers, while congressional leaders work with President Bush on a bipartisan stimulus package to fend off an economic downturn, according to party leaders and leadership aides.

Senior Democrats have decided that holding a controversial vote on the contempt citations, which have already been approved by the House Judiciary Committee as part of its investigation into the firing of nine U.S. attorneys, would “step on their message” of bipartisan unity in the midst of the stimulus package talks.

It's enough of a struggle to get Congress to walk, you don't expect them to chew gum at the same time, do you?

“Right now, we’re focused on working in a bipartisan fashion on [the] stimulus,” said House Majority Leader Steny H. Hoyer (D-Md.), indicating that the contempt vote is not expected for weeks, depending on how quickly the stimulus package moves.

Brendan Daly, a spokesman for House Speaker Nancy Pelosi (D-Calif.), said “no decision has been made” as to when a criminal contempt vote would be held by the House.

These citations were originally approved in the Judiciary Committee LAST JULY, by the way.

They will NEVER be voted upon, I think that much is clear. There will always be an excuse. And there will always be Blue Dogs unwilling to "look weak" by doing something strong. Democratic aides admit they don't even have the votes in the House to protect their own oversight responsibilities. And so a President will have set the precedent of extending executive privilege even further, and Congress will become even more irrelevant.

I liked it better when they were out of session, it was much easier on my stomach.

Contempt

In rare news of the Congress doing their job, the Senate Judiciary Committee has approved contempt citations for Karl Rove and Josh Bolten. Although, this is so far removed from the actual scandal to which it pertains (it was the US Attorney firings) that I don't think anyone remembers why they're being called, and thus politically it takes the shape of piling on needlessly, and becomes completely ineffective. Not to mention:

The criminal contempt resolutions now move to the Senate floor, although no action on them is expected until next year [...]

The House Judiciary Committee has also approved contempt resolutions against Bolten and former White House Counsel Harriet Miers, but Speaker Nancy Pelosi (D-Calif.) has not set a date for a floor vote yet.

There's a principle at stake here, of course, and that's the role of Congressional oversight, but this can easily be characterized as old news, because it actually is old news. Meanwhile the US Attorney for DC, who would normally represent Congress in any legal battle with the White House, won't enforce these contempt citations. And the Bush Justice Department is gearing up to suppress the vote in 2008, again, which was after all one of the prime motivations of the US Attorney firings.

Strike Up The Band, We Got Ourselves a Contempt Proceeding

We'll see how far they get with it, but Patrick Leahy is planning a vote in the Senate Judiciary committee on Thursday for contempt citations, which has been a slightly more anticipated event on Capitol Hill than the Sopranos finale.

Senate Judiciary Chairman Patrick Leahy (D-Vt.) has scheduled a committee vote Thursday on contempt resolutions against White House Chief of Staff Josh Bolten and former presidential political guru Karl Rove for failing to respond to subpoenas.

Under Judiciary Committee rules, the vote could be postponed for a week, but Leahy said he intends to move the criminal contempt resolutions as soon as possible. Last week, he rejected the White House's executive privilege claim in preventing Rove and Bolten from appearing before his panel, calling it "overbroad, unsubstantiated, and not legally valid," setting the stage for Thursday's showdown.

At least one of the top Democrats on the Committee is ready for this fight. The perpetual weak knees of the Democrats whenever anything close to challenging the President comes up is likely still operative, but not for Sheldon Whitehouse:

"There has not been a lot of case law on this subject. We've been going on for a long time off of Department of Justice [attorney general] opinions, and a certain amount of tradition, and how settlements and agreements in the past have shaken out. But the Bush administration has shown why it's actually important that there be a legal line drawn to hold them to, because they've redrawn all the executive lines. I think it'd be good for the process to get a court decision for once and for all on the subject so everybody knows where we stand. It'll eliminate a lot of the back and forth in the future."

It's important for these Senators to understand that this is a historic moment, with the relevance of their offices at stake. If they can't bother to fight for the separation of powers and the ability of the legislative branch to check the executive, what will they ever fight for? Whitehouse, at least, seems to get this, and is willing to push even beyond the current Administration's tenure to get a ruling for posterity.

Whitehouse doubted that the process -- the committee holding the White House in contempt, the full Senate following suit, the subsequent court fight and its resolution -- could be completed before the Bush administration ends. But he said he would see it through to its conclusion regardless of who's president. "It might be, frankly, that with the Bush administration out we'd get a better decision," he said. "We might have an administration that isn't trying to protect anything, and is just interested in the legal question."

It's not that Whitehouse expects that a court ruling on executive privilege will end executive-legislative struggles over its scope. But it would at least set a stable set of boundaries for its legitimate exercise, rather than leaving subsequent administrations free to expand it even further, he said. "The boundary of that debate has been expanded dramatically by the Bush administration, and it's important to get it back to where we're discussing things around some common principles that the court can establish," he said. "It should narrow the disagreement considerably if you've got an established legal framework in which you're having the discussion."

Right now we have a President who thinks that the only legitimate exercise the Congress should be allowed to serve is as an ATM. Today's press conference was not about Iran, it was about bellyaching over Iraq funding. What this contempt proceeding is about, in addition to getting to the truth of the US Attorney scandal, is reasserting the role of the Congress in our form of government. Nothing can be more important.

P.S.: It's amusing to me that Karl Rove is waddling around on his "please buy my book" tour, telling anyone who will listen about internal White House discussions on the 2002 Iraq resolution, and who was driving the debate in Washington, yet when the Congress wants him to answer questions on another Administration matter, suddenly he claims executive privilege. It's essentially privilege as a convenient blanket.

Democratic Opposition Creaking To Life

Adding to a newly emboldened Congress, at least at the edges (baby steps, people), Patrick Leahy has rejected the claim of executive privilege that's keeping White House officials from testifying in the US Attorneys case.

A Senate chairman said Thursday that President Bush was not involved in the firings of U.S. attorneys last winter, and he therefore ruled illegal the president's executive privilege claims protecting his chief of staff, Josh Bolten, and former adviser Karl Rove.

Senate Judiciary Committee Chairman Patrick Leahy directed Bolten, Rove, former White House political director Sara Taylor and her deputy, J. Scott Jennings, to comply ''immediately'' with their subpoenas for documents and information about the White House's role in the firings of U.S. attorneys.

''I hereby rule that those claims are not legally valid to excuse current and former White House employees from appearing, testifying and producing documents related to this investigation,'' wrote Leahy, D-Vt.

The ruling is a formality that clears the way for Leahy's panel to vote on whether to advance contempt citations against the four to the full Senate.

While we've seen this before, and we've seen both the House and Senate come tantalizingly close to approving contempt citations, this is closer than ever, and does reflect some new strategic tactics from the Senate Judiciary Committee Chairman. Rerutled has more.

We Really Really Mean It This Time

John Conyers has sent out 8 separate letters to the White House asking for documents and the testimony of key officials in the US Attorney probe, without any success. The latest one is more strongly worded than ever!

Conyers sent a letter to Fielding today, laying out a final proposed compromise solution - the ninth such letter sent. The Committee will also file its contempt report with the House clerk when the House begins its legislative business at 2:00 p.m., which would allow a contempt of Congress vote in the full House to move forward if Fielding rejects this final offer.

Specifically, Conyers requested that the following terms be met:

1. The White House would provide the Committee with copies of documents reflecting communications between White House staff and persons outside the White House relating to the U.S. Attorney terminations and related matters.

2. The White House would make available for confidential staff review the remaining, internal White House documents relating to the same subjects, after which the Committee would identify what would most probably be a smaller number of such documents for production.

3. The Committee and White House would specify present and former White House staffers for interviews but would not require those persons to be under oath.

Conyers notes that the White House has agreed to similar terms for the House Oversight and Government Reform Committee’s investigation into Pat Tillman’s death. Further, several of the same agreements were successfully carried out with Justice Department interviews and document production.

This deadline is Friday. This is quite a windup for the pitch, isn't it?

Look, the White House has shown absolutely no interest in cooperation whatsoever. There's little choice but to commence the contempt proceedings and set in motion this Constitutional showdown. The main reason is precedent. If nothing is done when the executive branch ignores Congressional subpoenas, the integrity of the legislative branch is forever compromised. I see little desire on the part of Congress to even prosecute this US Attorney matter any further, even though recent revelations, about the trial of former Alabama governor Don Siegelman, and the testimony of Dick Thornburgh about politically motivated prosecutions in Pennsylvania, make it even more important to get to the bottom of the matter. But the point is that at some point, the Congress has to stop playing doormat and use the powers granted to them in Article I. As Markos writes, channeling the frustration felt by all of us:

D.C. is a funny place. No one seems to have gotten that resounding message, certainly not Bush and the new Republican minority. More surprisingly, Democrats also failed to get the message. On issue after issue, the Democratic norm has been to capitulate to the slightest pressure from the GOP. And while the public has meted record-low approval ratings for this Congress in response, the lesson apparently remains unlearned.

Whether it’s Iraq funding or the Michael Mukasey confirmation, Democrats continue to give away the store without receiving any concessions in return. It’s a one-way street in a town that has ceded Article I of the Constitution for a unitary, non-compromising executive. The public is sick of this administration’s betrayals. Why aren’t Democrats?

Good question.

I Picked The Wrong Day To Run Errands

It's like the 24-hour news cycle hit the "hyperdrive" switch.

• Patrick Leahy has issued subpoenas for Karl Rove and Scott Jennings.

WASHINGTON (CNN) -- Senate Judiciary Committee Chairman Patrick Leahy said Thursday he will subpoena White House political adviser Karl Rove to testify about the firings of federal prosecutors.

"We've now reached a point where the accumulated evidence shows that political considerations factored into the unprecedented firing of at least nine U.S. attorneys last year. Testimony and documents showed that the list was compiled based on input from the highest political ranks in the White House, including Mr. Rove and Mr. (Scott) Jennings, and today I will subpoena Mr. Rove and Mr. Jennings."

Jennings is deputy director of political affairs at the White House.

• Chuck Schumer and other members of the Senate Judiciary Committee called for a special counsel to investigate Abu Gonzales on perjury charges. This comes after Schumer said on CNN that an investigation should start without delay.

• The Justice Department sent a letter informing the House Judiciary Committee that they will not enforce the contempt of Congress charges to Harriet Miers and Josh Bolten, citing that contempt charges don't apply when executive privilege is invoked. This of course means that we're headed for the courts on that issue (which will take quite a while, and enhance the opportunity by the Bush Administration to run out the clock) for a final Constitutional showdown. The US Attorney will have the final decision to prosecute, of course, which is about as likely as me sprouting a third arm in my back.

• Bob Gates is backtracking furiously to end the spat between a neocon undersecretary and Hillary Clinton, who merely asked the Pentagon to do its job and draw up contingency plans for withdrawal from Iraq (not unreasonable considering there are contingency plans for just about every foreign policy situation, including attacking Canada). Gates admitted that it's good for democracy to have this debate and was totally on the defensive about it.

• Stocks are tumbling and are now down 600 points in a week.

Most of these stories point to the Democrats understanding the failings of trying to reason with the Bush Administration, and how they know that there is no political downside to making these kinds of challenges.

Contemptuous

John Conyers starts the process in motion:

The House Judiciary Committee voted contempt of Congress citations Wednesday against White House Chief of Staff Josh Bolten and President Bush's former legal counselor, Harriet Miers.

The 22-17 vote — which would sanction for pair for failure to comply with subpoenas on the firings of several federal prosecutors — advanced the citation to the full House.

A senior Democratic official who spoke on condition of anonymity said the House itself likely would take up the citations after Congress' August recess. The official declined to speak on the record because no date had been set for the House vote.

This is the House Judiciary Committee doing what they've been forced to do. The White House is openly thumbing its nose at any kind of normal processes between the branches of government. There's nothing else to do.

Now we see what happens when the US Attorney for DC demurs (at the Justice Department's insistence) to prosecute. Will they cite inherent contempt charges and throw these lawbreakers in the Congressional pokey (there is a jail on the premises)?