Siegelman's Lament

Don Siegelman got a special pass from Alabama lawmakers to attend Netroots Nation, and he sat down with Air America's Sam Seder for an in-depth discussion of his case. Most of it was devoted to explaining the entire history of Siegelman and Karl Rove in Alabama - you can find plenty of that information in Scott Horton's archives. The story is quite sordid; both US Attorneys in Alabama and a cast of characters worked for years to put Siegelman behind bars. But Siegelman tried to keep the focus off of himself and onto the principle of justice. "My fate is in the hands of the 11th Circuit. What's important is the preservation of the rule of law in this country."

And that means getting Karl Rove in the Congress to testify. He has blown off the House Judiciary Committee, leaving for a paid junket on the day he was set to appear. There's not much time left in the Congressional session to get a resolution on this. At Netroots Nation, Siegelman asked Sen. McCain to step in.

On Friday, former Alabama Gov. Don Siegelman called on John McCain to compel his informal adviser Karl Rove to testify before Congress, and to remove Rove from any and all campaign capacities.

"Sen. McCain should distance himself from Karl Rove," said Siegelman. "And I think it is important and a smart political move [for him] to call on Rove to go and obey the law and to show up before the Judiciary Committee, to put his hand on the Bible, and to try to tell the truth - or at least plead the fifth." [...]

...he argued that it was absolutely vital that the presumptive Republican nominee -- who, according to published reports, has received money from and privately consulted with Rove -- insist that the former Bush confidante respect Congress' investigative prerogatives. Barack Obama, he added, should do the same.

"I would like to see Senator Obama speak out on this issue and call on Congress to hold Rove in contempt because no man is above the law," he said. "And I think its set a terrible example going forward if we do not hold Rove accountable."

There's no question. Rove's roots in Alabama go back to the days when he was rigging Supreme Court elections. Siegelman was the one Democrat he could never beat, so he put the full force of federal law to bear to ruin his career and his life. As the former governor said, "if this can happen to me, it can happen to you and your family." We need to send Karl Rove to jail.

UPDATE: At emptywheel's site, both Siegelman and fired US Attorney David Iglesias marvel at the logic that Karl Rove thinks he can avoid testifying by claiming that his role in the US Attorneys probe was part of his "official duties."

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.

Um, yes.

Ask The Speaker

Watching Speaker Pelosi at the morning Q&A. First question is on inherent contempt. She name-checked Karl Rove, but is basically talking about the Catch-22 of the Justice Department not prosecuting these cases. In other words, she didn't answer the question, because inherent contempt does not require the judiciary or the Attorney General. Gina Cooper asked "will you put him in that little jail cell in the House?" Standing ovation.

Next question is about FISA and how it could possibly be seen as a compromise. She's claiming that her options were limited, which is silly (the Republicans and some bad Democrats made me put it on the calendar?). Now on to the exclusivity bull-pucky, and the IG report, which is OK. "Our bill (the initial House bill) was a good bill." She's claiming that we'll learn more from the IG than from the courts, and I'm not sure that's true. Gina asks rightly that there's no natural constituency from this bill in the public. She's doing a great job.

OK, I'm going to lose power here, again.

Rove If You Want To, Rove Around The World

Well, Karl Rove didn't show up for his Congressional hearing yesterday, defying a subpoena; word is that he left the country on a scheduled trip he never bothered to mention to the House Judiciary Committee. The Democrats are most angry and I think they're going to break out the "stern letter" pen for a round of extremely stern letters.

In today's "hearing" (for which no one showed up to be heard), subcommittee chair Linda Sanchez ruled Rove's assertion of the privilege to be without merit, which could be the first step toward holding him in contempt of Congress. Of course, Josh Bolten and Harriet Miers have both been held in contempt, and we already know what happened there: the Bush "administration" has instructed the US Attorney not to prosecute the case. And this is actually Rove's second subpoena. The Senate Judiciary Committee issued the first one a year ago, but Rove never showed for that one, either. The Committee then voted to hold Rove in contempt in December of last year, but there has never been a vote before the full Senate, which would be required to refer the charges to the same US Attorney who wouldn't prosecute Miers and Bolten.

But Rove's claim could perhaps add another layer of ridiculousness to these proceedings. He claims executive privilege, but the White House says nothing. So who's right? Has he been instructed to assert this newly invented kind of immunity/ privilege or not? Well, let's hold hearings to find out whether the White House told him to do it. Only the White House surely won't testify, no doubt claiming... executive privilege. And Double Secret Immunity, too, no doubt.

So, he did not claim executive privilege, but he said he didn't have to show up because his duties as a Presidential aide were privileged. Which means that his official duties included politicizing the Justice Department and railroading Democrats in invented prosecutions, because that was the subject of the hearing.

It's pretty clear that the Democrats aren't going to do a hell of a lot about this. Even if they knuckled down and offered inherent contempt, they only have until the end of September before adjourning. The only possibility is this legislation that would prevent "future Karl Roves."

Rep. Henry Waxman (D-Calif.), who has primary jurisdiction over the executive branch, is considering legislation to eliminate Karl Rove-type advisers in future administrations.

The chairman of the House Oversight and Government Reform Committee hints broadly that such a bill could ban the use of federal funds to finance such a politically partisan office.

"Why should we be using taxpayer dollars to have a person solely in charge of politics in the White House?" Waxman said in an interview. "Can you imagine the reaction if each member of Congress had a campaign person paid for with taxpayer dollars?"

Sadly, this is as close we can get to accountability. Stopping a future event. That'll show Karl!

A Host Of Landmines

I've been saying for some time that the Bush legacy will long outlast January 20, 2009, because there will be midlevel officials, executive orders and the like littered all throughout the government, ready to undermine the efforts of a potential incoming Democratic President. We're starting to learn about that with respect to the Justice Department.

High-ranking political appointees at the Justice Department labored to stock a prestigious hiring program with young conservatives in a five-year-long attempt to reshape the department's ranks, according to an inspector general's report to be released today.

The report will trace the effort to 2002, early in the Bush administration, when key advisers to then-Attorney General John D. Ashcroft moved to exert more control over the program to hire rookie lawyers and summer interns, according to two people familiar with the probe.

The honors program, which each year places about 150 law school graduates with top credentials in a rotation of Justice jobs, historically had operated under the control of senior career officials. Shifting control of the program to Ashcroft's advisers prompted charges of partisanship from law professors and former government lawyers who had worked under Democratic administrations.

Here's the full report. This was a Monica Goodling special. She directed the candidate selection process and handed it over to Mike Elston, Chief of Staff to Deputy AG Mike McNulty. All of these folks have resigned now, but their legacy remains. And their subordinates, the hands-on people involved in the hiring of these career attorneys, filtered out candidates with any trace of Democratic or liberal politics in their background, and subsequently DESTROYED their applications. Some examples (McDonald refers to Esther McDonald, one of the hiring managers):

[A]n OARM employee ... recalled that one of the [deselected] candidates she raised to DeFalaise's attention was first in his law school class at Georgetown University, had clerked for a federal district court judge, and was currently clerking for a Second Circuit judge. [footnote 41: This candidate also had worked as a law clerk for Senator Russell Feingold, a Democrat, and for Human Rights Watch, but the OARM employee does not recall pointing out the candidate's political or ideological affiliations to DeFalaise at this time.] (59-60)

Elston also told Mercer that he had already scheduled the December 5 meeting to gauge what people's concerns were [with the selection process]. Elston said he intended to explain the process the Committee had followed so the components would have "a clear understanding of what we did, and what we learned, and what the basis for the strikes were." Mercer told us that he later learned from Associate Deputy Attorney General David Margolis, a senior career Department official, that the December 5 meeting had not gone well and that a lot of people had left the meeting "disturbed" and "not satisfied." (64)

The Committee used paper copies of the applications on which Fridman and McDonald made handwritten notations about the applicants, but those documents were destroyed prior to the initiation of our investigation. (68,69)

McDonald declined to be interviewed during our investigation. When we first contacted her in September 2007 for an interview, she was a Counsel to the Associate Attorney General. She initially agreed to a tentative date for her interview, but she later asked us to postpone the interview while she retained counsel. We agreed. After McDonald retained an attorney, and after allowing time for the attorney to familiarize himself with the matter, a new date for the interview was set, October 25, 2007. However, at 5:15 p.m. on October 24, McDonald's attorney e-mailed our investigators to advise them that his client was canceling the interview. The attorney added that McDonald was no longer employed by the Department. We learned that McDonald had resigned from the Department, effective October 24. On the evening of October 23, she had told her supervisor, Acting Associate Attorney General Katsas, that the next day would be her last day at the Department. Katsas said that her resignation came as a surprise to him. (75)

Elston confirmed that Fridman raised with him early in the review process Fridman's concerns that McDonald was deselecting candidates based on "membership in liberal organizations, or those kind of things," revealed in the candidate's application or from Internet searches she conducted. Elston said he reviewed the applications Fridman noted and saw that McDonald had either circled or written comments about liberal affiliations on the applications and then voted to deselect those candidates. (81)

Elston said he thought he recalled McDonald indicating it was a negative factor if a candidate had worked for a Democrat. (82)

Elston said he did not want to accuse McDonald of doing something inappropriate because he speculated that Goodling may have told McDonald to do what she was doing. (83)

These are, as is known, violations of federal law. Nothing will be done about it because most of those responsible are already out of government and accountability isn't part of the culture of Washington these days. The real impact will be felt when laws from a Democratic President are not implemented, or a staffer leaks information incriminating the executive or his staff, or any of a thousand options that hardcore right-wing DoJ staffers have to damage the opposition party.

When you fail to engage in the most basic oversight and offer even the threat of punishment, a rogue President and his allies can really do just about anything. You can pass laws and they simply don't get followed. You can consider subpoenas for officials who fail to comply with oversight investigations, and the officials just decline. You can take them to court, but the judge doesn't want to get involved and informs the Congress that they could have solved this on their own anyway:

Congress was trying to be diplomatic when it brought an unprecedented lawsuit to settle its subpoena fight against the White House, a lawyer told a federal judge Monday. After all, lawmakers could've just arrested the president's former lawyer for refusing to testify.

The judge's response?

Maybe they should have.

Congress has the authority to hold someone in contempt, U.S. District Judge John Bates said. Did it really need to go to court?

Congress insists on taking most of their bullets out of the chamber and then begging the executive branch to be reasonable, after they have shown no interest in ever doing so. This is how you get the DoJ hiring far-right conservatives and breaking the law with impunity. And getting caught doesn't seem to be an obstacle.

The next four to eight years, should Sen. Obama win, will be littered with "exclusive" stories from inside the DoJ of corruption and politicization and all sorts of malfeasance. These "honor" students are who those charges will be coming from. It'll be a total reversal and somebody had better recognize it.

UPDATE: The more you read this DoJ report, the crazier it gets. They actually denied someone a job because he liked wolves.

Mercer responded by e-mail that he was inquiring with a reference the candidate listed whom Mercer knew to find out "the scoop on intellect, personality, etc." Mercer added:

My initial reaction is that the guy is probably quite liberal. He is clerking for a very activist, ATLA-oriented justice. His law review article appears to favor reintroduction of wolves on federal lands, a very controversial issue here which pits environmentalists against lots of other interests, including virtually all conservative and moderate thinkers. I know of better candidates through our internship and clerkship programs who have applied to the honors program.

There are copious charts and graphs showing the "deselection" process and how liberals (or maybe conservatives who liked wolves, who knows?) were filtered out. The Attorney General says he's accepted all the recommendations in the IG report. Of course he will NOW, the landmines have already been set.

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.

CA Congressmen Need To Go To Congress School

We all know about Ellen Tauscher not knowing that Alberto Gonzales can be impeached; she cleared that one up. Now we have a report from the LA National Impeachment Center, including a lot of my fellow 41st AD delegates, on a meeting they held this week with Henry Waxman:

Towards the end of the meeting, Dorothy Reik, President of Progressive Democrats of the Santa Monica Mountains, urged Waxman to use the inherent contempt power of Congress to bring criminal charges against Bush and Cheney and their aides, hold a hearing in Congress on those charges, and then hand down the punishment, prison time. Reik expressed frustration with the refusal of Bush administration officials to testify before congressional committees, despite the fact that subpoenas had been issued.

Your witnesses aren't showing up -- They're ignoring your subpoenas, said Reik, so it is time for you, Congressman Waxman, to recognize that there is a precedent for members of congress to initiate and follow through on criminal proceedings.

Waxman said he was unaware of the inherent contempt power. In a follow-up letter after the meeting, Winograd emailed him information on the inherent contempt precedent.

Inherent contempt hasn't been used in decades, so it's a little excusable. But Congressmen like Waxman ought to know about all of the tools at their disposal in fighting the intransigence of the Bush Administration and getting to the truth.

Since Rep. Waxman is the most dogged investigator in the entire Congress, I think this answer to the question of impeachment is appropriate.

Congressman Waxman, Chair of the House Oversight Committee, told an impeachment
delegation meeting with him in his Los Angeles office, Tues., Aug. 7, 2007, that he would mull over
his constituents' articulate arguments, watch the Bill Moyers' interview on impeachment, and weigh whether there was sufficient evidence to, not just impeach, but convict Bush and Cheney. Waxman told the delegation it was not enough to believe Bush and Cheney were responsible for high crimes; his decision to support or co-sponsor an impeachment resolution must be predicated on the knowledge that there is overwhelming evidence for a conviction.

You shouldn't put the cart before the horse when it comes to something like this. Indeed, considering that Congress keeps SANCTIONING the illegal acts undertaken by this White House, I'm not sure there's anything illegal left that would constitute a high crime or misdemeanor. But this was an interesting exchange:

At the outset of the meeting, Waxman expressed a hesitancy to come out publicly for impeachment, explaining that his role as a vigorous investigator would be compromised by taking a stand that could be perceived as partisan or partial. Winograd responded with, At some point you, the investigator, have enough evidence to hold these criminals accountable. What is the point of continuous investigations unless an indictment or impeachment process is begun? Showing some hesitancy, Waxman insisted that a successful impeachment trial would necessitate strong and convincing evidence to persuade both Democrats and Republicans that high crimes had been committed. In the next breath, Waxman recited a litany of Bush and Cheney's crimes, everything from the Iraq war to the outing of a CIA agent to illegal wiretapping. "You sound like you are delivering the opening argument for an impeachment trial," said Winograd. With good humor, Waxman nodded and smiled.

Again, Congress enacted the illegal wiretapping into law last week, so I think there's a disconnect going on here.

I'm proud of my AD delegates for holding their representative accountable and for presenting him with new information, on the subject of inherent contempt, that even he didn't know about. Maybe in September we will see a bolder move by the Congress to end this absurdity of White House officials defying subpoenas and skipping out on hearings. And some point you can only write so many strongly worded letters.

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)?

King George

The Bush Admnistration looked into it, and they can't seem to find any limits to their own power.

Bush administration officials unveiled a bold new assertion of executive authority yesterday in the dispute over the firing of nine U.S. attorneys, saying that the Justice Department will never be allowed to pursue contempt charges initiated by Congress against White House officials once the president has invoked executive privilege.

The position presents serious legal and political obstacles for congressional Democrats, who have begun laying the groundwork for contempt proceedings against current and former White House officials in order to pry loose information about the dismissals.

We are talking about the Bush White House obstructing an investigation by ordering the US Attorney for DC not to file charges in a contempt of Congress case. This will probably be kicked upstairs to the courts. But think about the case that the President is making here. He's saying that the mere assertion of executive privilege is enough to nullify the Congress' Constitutional role. They're saying that Congress has no power to pursue "force a U.S. attorney to pursue contempt charges" in this case, while simultaneously forcing the US Attorney to NOT pursue those charges.

"A U.S. attorney would not be permitted to bring contempt charges or convene a grand jury in an executive privilege case," said a senior official, who said his remarks reflect a consensus within the administration. "And a U.S. attorney wouldn't be permitted to argue against the reasoned legal opinion that the Justice Department provided. No one should expect that to happen."

The official, who spoke on the condition of anonymity because he was not authorized to discuss the issue publicly, added: "It has long been understood that, in circumstances like these, the constitutional prerogatives of the president would make it a futile and purely political act for Congress to refer contempt citations to U.S. attorneys."

The other option for the Congress is inherent contempt, which they should do with all deliberate speed. This is what John Conyers wrote to White House Counsel Fred Fielding just yesterday:

This letter is to formally notify you that I must insist on compliance with the subpoena, and that Mr. Bolten's failure to promptly mitigate his noncompliance could result in contempt proceedings, including, but not limited to proceedings under 2 U.S.C §§ 192, 194 or under the inherent contempt authority of the House of Representatives. In light of Chairwoman Sanchez's ruling, we strongly urge immediate production of the responsive documents pursuant to the subpoena. Please let me know in writing by 10 a.m. on Monday July 23, 2007. whether Mr. Bolten will comply. If I do not hear from you in the affirmative by then, the Committee will have no choice but to consider appropriate recourse.

Inherent contempt is a rarely-used tactic where the Congress can direct the Sergeant-at-arms to arrest someone for failure to comply. The House merely must apply a majority vote for this to commence. I don't see that they have a choice. Harriet Miers is flat-out not complying with a subpoena and thumbing her nose at Congress. What else can you do?