The Seventh Sense

Greenwald Is Good Today

He's on a rant about the Justice Department under the Bush Adminsitration -- people who seem to think they work for the President and not for the people of the United States:

The core attribute of the Justice Department is independence, not allegiance to the President as "client." The President has his own lawyers in the White House Counsel's Office. The Attorney General is not and never was one of those lawyers. To the contrary, the Attorney General represents the people of the United States -- if he has any "client," that's who it is -- and is often required to take positions and actions adverse to the President. Few things could subvert -- and have subverted -- the American justice system more than thinking of the President as being the "client" of the Attorney General.

This all used to be so basic. But the belief that the DOJ exists to advance the interests and wishes of the President has become a central premise of how our Government now works. The Justice Department has been transformed into but another cog in the instruments of Government that protect and serve the President. And that transformation isn't unique to Alberto Gonzales (who, during a CNN interview while Attorney General, actually referred to Bush as "my client"), as The Washington Post's Dan Froomkin pointed out yesterday:

Michael Mukasey has President Bush's back.

Mukasey succeeded toady Alberto Gonzales as attorney general last fall. But the notion that he would restore independence to that post took a big hit yesterday when he refused to turn over to a House committee key documents related to the CIA leak investigation.

This isn't just ranting for the sake of ranting.  The people who think they work for Bush literally have no idea who they seem to actually work for or what their allegience is to, even though it's spelled out in their oath. 

Exhibit A from last year -- former White House official Sara Taylor actually went before the Senate and testified that she understood that she took an oath when she went to the White House that was "an oath to the President":

That's quite disconcerting...

Inspector General's Report: DOJ Politicized Hiring

This just in: A report from the inspector general — the result of an investigation into DOJ hiring practices over the last six years — alleges that “many qualified candidates” were rejected from an elite recruitment program because of perceived liberal bias. Here’s a story from the NYT’s Eric Lichtblau, and here’s an AP report. Click here for the 115-page report.

The hiring practices, which reportedly took place under both AG Ashcroft and AG Gonzales, “constituted misconduct and also violated the department’s policies and civil service law that prohibit discrimination in hiring based on political or ideological affiliations,” the report says.

Some snippets from the summary:

...[W]e concluded that McDonald committed misconduct and violated Department policies and civil service law by considering political or ideological affiliations in assessing Honors Program and SLIP candidates. (93)

[W]e concluded that Elston violated federal law and Department policy by deselecting candidates based on their liberal affiliations. (94)

We also concluded that Elston committed misconduct, and violated federal law and Department policy, when he deselected candidates and denied appeals based on his perception of the political or ideological affiliations of the candidates. (96)

We also concluded that OARM Director DeFalaise did not adequately or timely address the concerns that were brought to his attention concerning the Screening Committee's deselections. (96)

Finally, we concluded that Acting Associate Attorney General Mercer did not adequately address the concerns that were brought to his attention by several senior Department officials that the Screening Committee's deselections appeared to have been politicized. (97)...

When Fridman asked McDonald how she obtained the additional information, she told him she conducted searches on Google and MySpace, and read law review articles written by the applicants. For example, Fridman recalled that one candidate had written a law review article about the detention of individuals at Guantánamo, and McDonald noted on the application that she perceived the applicant's viewpoint to be contrary to the position of the administration. On another application, McDonald noted that she found information on the Internet indicating that a candidate was an "anarchist." (78)

The OIG report also notes the destruction of documents pertaining to its investigation by the DOJ.

UPDATE:  Kevin Drum notes a graph showing the number of students from the American Constitutional Society (a liberal legal organization) who were approved/deselected from the "non-political program, as compared to those who were members of the Federalist Society.

Overall, of the applicants nominated, 70% of those who identified as Democrats were de-selected, 32% who identified as Neutral were deselected, and just 11% who identified as Republicans were deselected.

Yup.  A bit of a political bias there.

Attorney Firing Probe Deepens

With Iraq, the economy and the elections, we seem to forget the Bush scandals.  And the attorney firing scandal, which has been festering in the background, is about ready to blow (some say), with allegations of perjury, witness tampering and the like:

The federal investigation into the firing of nine U.S. attorneys could jolt the political landscape ahead of the November elections, according to several people close to the inquiry.

Washington’s attention has been diverted from the scandal since the August resignation of Alberto Gonzales as attorney general, and has focused instead on Democrats’ efforts to hold White House officials in contempt for ignoring congressional subpoenas to testify on Capitol Hill about the firings.

But recent behind-the-scenes activity in several investigations suggests that the issue that roiled Congress in 2007 could re-emerge in the heat of the election year. Two inquiries by the House and Senate ethics committees are examining whether several congressional Republicans, including one running for the Senate this year, improperly interfered with investigations.

As potent as the congressional probes might be, they appear to be far narrower than a sprawling inquiry launched by the Justice Department’s Office of Inspector General (OIG) and the Office of Professional Responsibility (OPR).

Investigators from these offices have been questioning whether senior officials lied to Congress, violated the criminal provisions in the Hatch Act, tampered with witnesses preparing to testify to Congress, obstructed justice, took improper political considerations into account during the hiring and firing of U.S. attorneys and created widespread problems in the department’s Civil Rights Division, according to several people familiar with the investigation.

I'm not quite sure how this will effect the November elections, since it doesn't impute any of the standing Presidential candidates.  But still, it sounds like it is going to bhe nasty.

Recommended Reading

Slate's Top Ten Bush Administration's Dumbest Legal Arguments of the Year.  It's a doozy.

Number one:

1. The United States does not torture.

First there was the 2002 torture memo. That was withdrawn. Then there was the December 2004 statement that declared torture "abhorrent." But then there was the new secret 2005 torture memo. But members of Congress were fully briefed about that. Except that they were not. There was Abu Ghraib. There were the destroyed CIA tapes. So you see, the United States does not torture. Except for when it does.

DOJ Investigating Gonzalez For Lying To Congress

Good:

The Justice Department's inspector general indicated yesterday that he is investigating whether departing Attorney General Alberto R. Gonzales gave false or misleading testimony to Congress, including whether he lied under oath about warrantless surveillance and the firings of nine U.S. attorneys.

I guess it'll be easier for the DOJ to investigate the DOJ, now that Gonzalez no longer runs the DOJ.

The DOJ is also widening its internal probe into the U.S. Attorney firing scandal.

More Cracks In The Wall: Rove Subpoenaed

Breaking news from CNN: they have issued a subpoena to Karl Rove to testify about his role in the Department of Justice attorney firings.

If he goes the route of Harriet Miers and Joshua Bolton -- i.e., refusing to comply -- he (like them) faces contempt of Congress charges.

Contempt!

MSNBC:

WASHINGTON - 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 the pair for failure to comply with subpoenas on the firings of several federal prosecutors, advanced the citations to the full House.

The full House will take it up after the August recess.

Fun fact:

The last time a full chamber of Congress voted on a contempt citation was 1983. The House voted 413-0 to cite former Environmental Protection Agency official Rita Lavelle for contempt of Congress for refusing to appear before a House committee. Lavelle was later acquitted in court of the contempt charge, but she was convicted of perjury in a separate trial.

413-0.  That was back in the day when the GOP had enough principles to put down its partisanship and simply enforce the law.  I don't that could happen with today's Republican Party.

Constitutional Showdown

It's brewing:

The House Judiciary Committee announced yesterday that it will press toward a constitutional showdown with the Bush administration over the U.S. attorney firings scandal, even as embattled Attorney General Alberto R. Gonzales vowed to stay on and "fix the problems" that have damaged the reputation and morale of the Justice Department.

John Conyers Jr. (D-Mich.), chairman of the committee, said it will vote on Wednesday on contempt citations for the White House chief of staff, Joshua B. Bolten, and former White House counsel Harriet E. Miers. Both refused congressional demands for information on the dismissals after President Bush invoked executive privilege.

The move puts House Democrats on a legal collision course with the White House, which said last week that it will not allow the Justice Department to prosecute executive branch officials for being in contempt of Congress.

For those of you not paying attention to this story (of only half-paying attention), these are the bulletpoint facts:

• Failure to appear pursuant to a subpoena is a federal crime
• This includes subpoenae issued by Congress for their congressional investigations
• You can appear and refuse to testify to certain questions (i.e., plead the 5th Amendment privilege, or the executive privilege, or some other privilege), but you have to appear
• If you invoke the privilege, it has to be, you know, a bona fide reason, and it must be in response to questions that are asked; there is no such thing as a "blanket" privilege
• Congress was investigating the Department of Justice for their (alleged) use of hiring and firing attorneys based on their political party affiliation (and/or their willingness to prosecute Democrats)
• Congress issued to subpoenae to (among others) Joshua Bolton and Harriet Miers
• Both refused to appear (invoking a blanket "executive privilege")
• Failing to appear in response to a subpoena is, on its face, "contempt of Congress" -- a crime
• But the Department of Justice (the object of the investigation) is the body that prosecutes such crimes
• The Bush Administration has said that the DOJ will not prosecute itself, nor will Bush appoint a special independent prosecutor

In other words, if there is corruption in the Department of Justice, nobody can be brought to trial or charged, because the Department of Justice is the fox guarding the henhouse.

A serious constitutional problem.  In the past, other Presidents have put partisanship aside and appointed special prosecutors.  Bush is not doing that.

So who watches the watchers?

UPDATE:  Law Professor Frank Astin says Congress doesn't need the Executive Branch or the DOJ to enforce their own subpoenae:

Yet under historic and undisturbed law, Congress can enforce its own orders against recalcitrant witnesses without involving the executive branch and without leaving open the possibility of presidential pardon.

And a Supreme Court majority would find it hard to object in the face of two entrenched legal principles.

First is the inherent power of Congress to require testimony on matters within its legislative oversight jurisdiction.

So long as Congress is investigating issues over which it has the power to legislate, it can compel witnesses to appear and respond to questions. That power has been affirmed over and over in prosecutions for contempt.

In modern times, this congressional power has been enforced by referring contempt cases to the U.S. attorney for the District of Columbia for indictment and prosecution. That, of course, is the rub. It allows the president to exercise his plenary power under the Constitution to issue pardons "for offenses against the United States."

But no law says that indictment and prosecution by the Justice Department is the exclusive means to enforce congressional prerogative.

***

Instead of referring a contempt citation to the U.S. attorney, a house of Congress can order the sergeant-at-arms to take recalcitrant witnesses into custody and have them held until they agree to cooperate -- i.e., an order of civil contempt. Technically, the witness could be imprisoned somewhere in the bowels of the Capitol, but historically the sergeant-at-arms has turned defendants over to the custody of the warden of the D.C. jail.

That was what was done in the landmark 1876 case Kilbourn v. Thompson, when the Supreme Court ruled that Congress had overstepped its bounds by investigating the private activities of the defendant in a matter in which it had no jurisdiction.

That decision, however, left no doubt of Congress's power to punish for contempt those who defy lawful investigations.

So, far from being defenseless against the president's refusal to prosecute or the threat of presidential pardon, Congress could take into its own custody defiant administration officials who refuse to cooperate with legitimate inquiries into executive malfeasance. Those targets would have the right to seek writs of habeas corpus from the federal courts, but as long as Congress could show a legitimate need for the information it was seeking pursuant to its legislative oversight functions, it would be standing on solid legal ground.

Is Bush Committing A Felony?

Bush has order his former counsel Harriet Miers to not respond to the Congressional subpoena.

You can't do that.

You can show up in response to the subpoena and claim some sort of executive privilege (see Taylor, Sara), or you can show up and lie (see, Gonzales, Alberto).  But you just can't order someone to not show up, because that's a felony:

18 U.S.C. Sec. 1505 : ... Whoever corruptly ... influences, obstructs, or impedes ... the due and proper exercise of the power of inquiry under which any inquiry or investigation is being had by either House, or any committee of either House or any joint committee of the Congress ... [s]hall be fined under this title, [or] imprisoned not more than 5 years ... or both.

18 U.S.C. Sec. 1515(b): As used in section 1505, the term "corruptly" means acting with an improper purpose, personally or by influencing another, including ... withholding, [or] concealing ... information.

Just saying....

House Interim Staff Report on RNC Emails

House investigators have learned that the Bush administration’s use of Republican National Committee email accounts is far greater than previously disclosed — 140,216 emails sent or received by Karl Rove alone — and that the RNC has overseen “extensive destruction” of many of the emails, including all email records for 51 White House officials.

The Presidential Records Act requires the President to “take all such steps as may be necessary to assure that the activities, deliberations, decisions, and policies that reflect the performance of his constitutional, statutory, or other official or ceremonial duties are adequately documented … and maintained as Presidential records.” To implement this legal requirement, the White House Counsel issued clear written policies in February 2001 instructing White House staff to use only the official White House e-mail system for official communications and to retain any official e-mails they received on a nongovernmental account.

The evidence obtained by the Committee indicates that White House officials used their RNC e-mail accounts in a manner that circumvented these requirements. At this point in the investigation, it is not possible to determine precisely how many presidential records may have been destroyed by the RNC.

They are sooooo busted:

The number of White House officials given RNC e-mail accounts is higher than previously disclosed. In March 2007, White House spokesperson Dana Perino said that only a “handful of officials” had RNC e-mail accounts. In later statements, her estimate rose to “50 over the course of the administration.” In fact, the Committee has learned from the RNC that at least 88 White House officials had RNC e-mail accounts. The officials with RNC e-mail accounts include Karl Rove, the President’s senior advisor; Andrew Card, the former White House Chief of Staff; Ken Mehlman, the former White House Director of Political Affairs; and many other officials in the Office of Political Affairs, the Office of Communications, and the Office of the Vice President.

White House officials made extensive use of their RNC e-mail accounts. The RNC has preserved 140,216 e-mails sent or received by Karl Rove. Over half of these e-mails (75,374) were sent to or received from individuals using official “.gov” e-mail accounts. Other heavy users of RNC e-mail accounts include former White House Director of Political Affairs Sara Taylor (66,018 e-mails) and Deputy Director of Political Affairs Scott Jennings (35,198 e-mails). These e-mail accounts were used by White House officials for official purposes, such as communicating with federal agencies about federal appointments and policies.

There has been extensive destruction of the e-mails of White House officials by the RNC. Of the 88 White House officials who received RNC e-mail accounts, the RNC has preserved no e-mails for 51 officials. In a deposition, Susan Ralston, Mr. Rove’s former executive assistant, testified that many of the White House officials for whom the RNC has no e-mail records were regular users of their RNC e-mail accounts. Although the RNC has preserved no e-mail records for Ken Mehlman, the former Director of Political Affairs, Ms. Ralston testified that Mr. Mehlman used his account “frequently, daily.” In addition, there are major gaps in the e-mail records of the 37 White House officials for whom the RNC did preserve e-mails. The RNC has preserved only 130 e-mails sent to Mr. Rove during President Bush’s first term and no e-mails sent by Mr. Rove prior to November 2003. For many other White House officials, the RNC has no e-mails from before the fall of 2006.

There is evidence that the Office of White House Counsel under Alberto Gonzales may have known that White House officials were using RNC e-mail accounts for official business, but took no action to preserve these presidential records. In her deposition, Ms. Ralston testified that she searched Mr. Rove’s RNC e-mail account in response to an Enron-related investigation in 2001 and the investigation of Special Prosecutor Patrick Fitzgerald later in the Administration. According to Ms. Ralston, the White House Counsel’s office knew about these e-mails because “all of the documents we collected were then turned over to the White House Counsel’s office.” There is no evidence, however, that White House Counsel Gonzales initiated any action to ensure the preservation of the e-mail records that were destroyed by the RNC.