Low-key office launches high-profile inquiry
The Office of Special Counsel will investigate U.S. attorney firings and other political activities led by Karl Rove.
By Tom Hamburger
Times Staff Writer
April 24, 2007
WASHINGTON — Most of the time, an obscure federal investigative unit known as the Office of Special Counsel confines itself to monitoring the activities of relatively low-level government employees, stepping in with reprimands and other routine administrative actions for such offenses as discriminating against military personnel or engaging in prohibited political activities.
But the Office of Special Counsel is preparing to jump into one of the most sensitive and potentially explosive issues in Washington, launching a broad investigation into key elements of the White House political operations that for more than six years have been headed by chief strategist Karl Rove.
The new investigation, which will examine the firing of at least one U.S. attorney, missing White House e-mails, and White House efforts to keep presidential appointees attuned to Republican political priorities, could create a substantial new problem for the Bush White House.
First, the inquiry comes from inside the administration, not from Democrats in Congress. Second, unlike the splintered inquiries being pressed on Capitol Hill, it is expected to be a unified investigation covering many facets of the political operation in which Rove played a leading part.
"We will take the evidence where it leads us," Scott J. Bloch, head of the Office of Special Counsel and a presidential appointee, said in an interview Monday. "We will not leave any stone unturned."
Bloch declined to comment on who his investigators would interview, but he said the probe would be independent and uncoordinated with any other agency or government entity.
The decision by Bloch's office is the latest evidence that Rove's once-vaunted operations inside the government, which helped the GOP hold the White House and Congress for six years, now threaten to mire the administration in investigations.
The question of improper political influence over government decision-making is at the heart of the controversy over the firing of U.S. attorneys and the ongoing congressional investigation of the special e-mail system installed in the White House and other government offices by the Republican National Committee.
All administrations are political, but this White House has systematically brought electoral concerns to Cabinet agencies in a way unseen previously.
For example, Rove and his top aides met each year with presidential appointees throughout the government, using PowerPoint presentations to review polling data and describe high-priority congressional and other campaigns around the country.
Some officials have said they understood that they were expected to seek opportunities to help Republicans in these races, through federal grants, policy decisions or in other ways.
A former Interior Department official, Wayne R. Smith, who sat through briefings from Rove and his then-deputy Ken Mehlman, said that during President Bush's first term, he and other appointees were frequently briefed on political priorities.
"We were constantly being reminded about how our decisions could affect electoral results," Smith said.
"This is a big deal," Paul C. Light, a New York University expert on the executive branch, said of Bloch's plan. "It is a significant moment for the administration and Karl Rove. It speaks to the growing sense that there is a nexus at the White House that explains what's going on in these disparate investigations."
The 106-person Office of Special Counsel has never conducted such a broad and high-profile inquiry in its history. One of its primary missions has been to enforce the Hatch Act, a law enacted in 1939 to preserve the integrity of the civil service.
Bloch said the new investigation grew from two narrower inquiries his staff had begun in recent weeks.
One involved the fired U.S. attorney from New Mexico, David C. Iglesias.
The other centered on a PowerPoint presentation that a Rove aide, J. Scott Jennings, made at the General Services Administration this year.
That presentation listed recent polls and the outlook for battleground House and Senate races in 2008. After the presentation, GSA Administrator Lorita Doan encouraged agency managers to "support our candidates," according to half a dozen witnesses. Doan said she could not recall making such comments.
The Los Angeles Times has learned that similar presentations were made by other White House staff members, including Rove, to other Cabinet agencies. During such presentations, employees said they got a not-so-subtle message about helping endangered Republicans.
White House spokesman Scott M. Stanzel said the Hatch Act did not prohibit providing informational briefings to government employees.
Responding to a letter of complaint to the White House from 25 Democratic senators, Stanzel said: "It is entirely appropriate for the president's staff to provide informational briefings to appointees throughout the federal government about the political landscape in which they implement the president's policies and priorities."
However, questions have emerged about the PowerPoint presentations, including whether Doan's comments crossed the line and whether the presentations violated rules limiting political activity on federal property.
Whether legal or not, the multiple presentations revealed how widely and systematically the White House sought to deliver its list of electoral priorities.
In the course of investigating the U.S. attorney matter and the PowerPoint presentations, Democratic congressional investigators discovered e-mails written by White House personnel using accounts maintained by the Republican National Committee.
For example, they discovered that Jennings, a special assistant to the president and deputy director of political affairs in the White House, was using an e-mail with the domain name of "gwb43.com" that the RNC maintained.
That domain name showed up in e-mail communications from Jennings about how to replace U.S. Atty. H.E. "Bud" Cummins III of Arkansas to make room for Timothy Griffin, a Rove protege, in such a way as to "alleviate pressure/implication that Tim forced Bud out."
Another Jennings e-mail using the RNC account requested that department officials meet with a former New Mexico campaign advisor who wanted to "discuss the U.S. Atty situation there."
The growing controversy inspired him to act, Bloch said.
"We are acting with dispatch and trying to deal with this because people are concerned about it … and it is not a subject that should be left to endless speculation," he said.
tom.hamburger@latimes.com
Showing posts with label attorneys. Show all posts
Showing posts with label attorneys. Show all posts
Tuesday, April 24, 2007
Friday, April 13, 2007
DOJ Document Sets Released on 4-13-2007
Making Sense of the Georgia Thompson Ruling
EDITORIAL
April 12, 2007
Thursday’s ruling by the 7th U.S. Circuit Court of Appeals in Chicago, which immediately freed former state worker Georgia Thompson, was a stunner. Not only did the three federal judges immediately give Thompson her freedom, but they also delivered a smack-down to the Milwaukee office of U.S. Attorney Steven Biskupic, calling the evidence in the case “beyond thin.”
So how did that happen? Why would a prosecutor, working on the taxpayers’ dime, press charges when the evidence was negligible? Why did a jury convict based on that same evidence? And why was Thompson given the unusual punishment of going to federal prison while her case was being appealed?
Why? Because the political climate—in George W. Bush’s America, in Wisconsin and in Milwaukee, in particular, where the case was decided—is so poisoned by political games that the jury sent a message that wasn’t based on the evidence introduced in the courtroom.
Once the case was heard by three neutral judges, two of which were appointed by Republican presidents, who only looked at the facts in the case and not the screaming headlines about Gov. Jim Doyle’s alleged corruption, the court made the right call. And in doing so the appeals court revealed much about what’s happening behind the scenes at the Department of Justice under Attorney General Alberto Gonzales. Believe it or not, there was once a time when the Justice Department was supposed to be removed from politics; fortunately, the appeals court judges didn’t realize that times have changed.
Last June, just as the race for governor was heating up, Georgia Thompson was convicted of improperly steering a state contract to the Adelman Travel Group, which is run by a politically involved family that has a history of favoring Democrats.
Predictably, almost daily headlines blaring the latest developments in the “travelgate” saga were used in campaign advertisements against Doyle. Mark Green supporters—right-wing WTMJ radio talkers and the Milwaukee Journal Sentinel included—plumped up the allegations against Thompson and buried her defense, if it reported her side of the story at all. (In interviews after the verdict, juror Marvin Bizzelle claimed that Doyle had orchestrated the whole matter, even though Biskupic didn’t make that allegation. Gee, wonder where Bizzelle could have gotten that information? And why did he bring that information into deliberations, when jurors are supposed to render a verdict on the evidence brought forth in the courtroom?)
The case was curious from the beginning. As Thompson’s attorney, Stephen Hurley, noted, the state worker was a civil servant hired during Republican Gov. Scott McCallum’s tenure, making Thompson’s supposed bias toward Doyle seem improbable; she didn’t profit from the contract; no one else was named in connection with her supposed fraud; she didn’t name names or plead to a lesser charge to save herself; and the contract did, indeed, go to the lowest bidder, as is required. So where’s the crime?
But other factors bothered us. Why was Thompson charged with federal crimes? As we noted in a news article last summer, Thompson’s attorney argued that “at best, the evidence demonstrates a violation of the applicable sections of the Wisconsin Administrative Code.”
It also seemed curious that Thompson was tried in the U.S. District Court Eastern District of Wisconsin, in Milwaukee. She lived and worked in Madison and was a state employee, and the fact that Adelman Travel’s headquarters is located in Milwaukee has nothing to do with the case. Even though then-Attorney General Peg Lautenschlager and Dane County District Attorney Brian Blanchard helped to investigate the case, they declined to bring charges. But Biskupic, a Bush appointee, did, even though it really didn’t have anything to do with his jurisdiction. At the time of the trial, we wondered whether Biskupic truly believed he had a strong case, which would cause one to question his competence, or whether he knew that there really wasn’t a case but succumbed to Republican political pressure.
But now, after weeks of news about Alberto Gonzales’ Justice Department, we may have an answer to our questions. Feeling the political pressure, Biskupic first tried to find the massive voter fraud that the Republican Party and the Journal Sentinel, along with their talk-radio friends, screamed was rampant in the city of Milwaukee. They even provided hundreds of names of “illegal voters” that Biskupic attempted to track down. After spending tens of thousands of taxpayer dollars, he found that there was no rampant voter fraud.
So Biskupic, in an attempt to satisfy his bosses, then went after Georgia Thompson. To destroy an innocent woman’s life was no problem for Biskupic if it could be used to help defeat Gov. Doyle. Once Georgia Thompson was charged, the Republican Party, the Journal Sentinel and the right-wing talk-show hosts used this indictment to try to make Doyle look corrupt.
Now Biskupic is at it again. He has indicted Dennis Troha for illegally channeling donations to Doyle. Once again, the political target of Biskupic is being tried in the press, on the front pages of the Journal Sentinel, which has already decided that Doyle is corrupt and just needs the right case—or perhaps the right prosecutor—to prove it.
The real question is why Biskupic hasn’t investigated Troha family contributions of tens of thousands of dollars to U.S. Rep. Paul Ryan and President Bush. Rep. Ryan received more than $50,000 in campaign contributions from the Troha family. The only difference is that Paul Ryan actually introduced special-interest legislation for Troha, signed by Bush, that substantially increased the value of Troha’s business. Ryan provided a clear quid pro quo and he should be investigated and perhaps indicted. Ryan, of course, denied he knew this was happening; however, when a congressman introduces special-interest legislation for a major contributor, what is he thinking about? If Biskupic is really trying to ferret out corruption, why isn’t he investigating Ryan, where there is actually a smoking gun of corruption? But, wait a second, isn’t Paul Ryan a Republican?
April 12, 2007
Thursday’s ruling by the 7th U.S. Circuit Court of Appeals in Chicago, which immediately freed former state worker Georgia Thompson, was a stunner. Not only did the three federal judges immediately give Thompson her freedom, but they also delivered a smack-down to the Milwaukee office of U.S. Attorney Steven Biskupic, calling the evidence in the case “beyond thin.”
So how did that happen? Why would a prosecutor, working on the taxpayers’ dime, press charges when the evidence was negligible? Why did a jury convict based on that same evidence? And why was Thompson given the unusual punishment of going to federal prison while her case was being appealed?
Why? Because the political climate—in George W. Bush’s America, in Wisconsin and in Milwaukee, in particular, where the case was decided—is so poisoned by political games that the jury sent a message that wasn’t based on the evidence introduced in the courtroom.
Once the case was heard by three neutral judges, two of which were appointed by Republican presidents, who only looked at the facts in the case and not the screaming headlines about Gov. Jim Doyle’s alleged corruption, the court made the right call. And in doing so the appeals court revealed much about what’s happening behind the scenes at the Department of Justice under Attorney General Alberto Gonzales. Believe it or not, there was once a time when the Justice Department was supposed to be removed from politics; fortunately, the appeals court judges didn’t realize that times have changed.
Last June, just as the race for governor was heating up, Georgia Thompson was convicted of improperly steering a state contract to the Adelman Travel Group, which is run by a politically involved family that has a history of favoring Democrats.
Predictably, almost daily headlines blaring the latest developments in the “travelgate” saga were used in campaign advertisements against Doyle. Mark Green supporters—right-wing WTMJ radio talkers and the Milwaukee Journal Sentinel included—plumped up the allegations against Thompson and buried her defense, if it reported her side of the story at all. (In interviews after the verdict, juror Marvin Bizzelle claimed that Doyle had orchestrated the whole matter, even though Biskupic didn’t make that allegation. Gee, wonder where Bizzelle could have gotten that information? And why did he bring that information into deliberations, when jurors are supposed to render a verdict on the evidence brought forth in the courtroom?)
The case was curious from the beginning. As Thompson’s attorney, Stephen Hurley, noted, the state worker was a civil servant hired during Republican Gov. Scott McCallum’s tenure, making Thompson’s supposed bias toward Doyle seem improbable; she didn’t profit from the contract; no one else was named in connection with her supposed fraud; she didn’t name names or plead to a lesser charge to save herself; and the contract did, indeed, go to the lowest bidder, as is required. So where’s the crime?
But other factors bothered us. Why was Thompson charged with federal crimes? As we noted in a news article last summer, Thompson’s attorney argued that “at best, the evidence demonstrates a violation of the applicable sections of the Wisconsin Administrative Code.”
It also seemed curious that Thompson was tried in the U.S. District Court Eastern District of Wisconsin, in Milwaukee. She lived and worked in Madison and was a state employee, and the fact that Adelman Travel’s headquarters is located in Milwaukee has nothing to do with the case. Even though then-Attorney General Peg Lautenschlager and Dane County District Attorney Brian Blanchard helped to investigate the case, they declined to bring charges. But Biskupic, a Bush appointee, did, even though it really didn’t have anything to do with his jurisdiction. At the time of the trial, we wondered whether Biskupic truly believed he had a strong case, which would cause one to question his competence, or whether he knew that there really wasn’t a case but succumbed to Republican political pressure.
But now, after weeks of news about Alberto Gonzales’ Justice Department, we may have an answer to our questions. Feeling the political pressure, Biskupic first tried to find the massive voter fraud that the Republican Party and the Journal Sentinel, along with their talk-radio friends, screamed was rampant in the city of Milwaukee. They even provided hundreds of names of “illegal voters” that Biskupic attempted to track down. After spending tens of thousands of taxpayer dollars, he found that there was no rampant voter fraud.
So Biskupic, in an attempt to satisfy his bosses, then went after Georgia Thompson. To destroy an innocent woman’s life was no problem for Biskupic if it could be used to help defeat Gov. Doyle. Once Georgia Thompson was charged, the Republican Party, the Journal Sentinel and the right-wing talk-show hosts used this indictment to try to make Doyle look corrupt.
Now Biskupic is at it again. He has indicted Dennis Troha for illegally channeling donations to Doyle. Once again, the political target of Biskupic is being tried in the press, on the front pages of the Journal Sentinel, which has already decided that Doyle is corrupt and just needs the right case—or perhaps the right prosecutor—to prove it.
The real question is why Biskupic hasn’t investigated Troha family contributions of tens of thousands of dollars to U.S. Rep. Paul Ryan and President Bush. Rep. Ryan received more than $50,000 in campaign contributions from the Troha family. The only difference is that Paul Ryan actually introduced special-interest legislation for Troha, signed by Bush, that substantially increased the value of Troha’s business. Ryan provided a clear quid pro quo and he should be investigated and perhaps indicted. Ryan, of course, denied he knew this was happening; however, when a congressman introduces special-interest legislation for a major contributor, what is he thinking about? If Biskupic is really trying to ferret out corruption, why isn’t he investigating Ryan, where there is actually a smoking gun of corruption? But, wait a second, isn’t Paul Ryan a Republican?
Missing E-Mail May Be Related to Prosecutors
WASHINGTON, April 12—The White House said Thursday that missing e-mail messages sent on Republican Party accounts may include some relating to the firing of eight United States attorneys.
The disclosure became a fresh political problem for the White House, as Democrats stepped up their inquiry into whether Karl Rove and other top aides to President Bush used the e-mail accounts maintained by the Republican National Committee to circumvent record-keeping requirements.
It also exposed the dual electronic lives led by Mr. Rove and 21 other White House officials who maintain separate e-mail accounts for government business and work on political campaigns — and raised serious questions, in the eyes of Democrats, about whether political accounts were used to conduct official work without leaving a paper trail.
The clash also seemed to push the White House and Democrats closer to a serious confrontation over executive privilege, with the White House counsel, Fred F. Fielding, asserting that the administration has control over countless other e-mail messages that the Republican National Committee has archived. Democrats are insisting that they are entitled to get the e-mail messages directly from the national committee.
Representative Henry A. Waxman, the California Democrat who is chairman of a House committee looking into the use of political e-mail accounts, wrote a letter to the attorney general on Thursday saying he had “particular concerns about Karl Rove” after a briefing his aides received from Rob Kelner, a lawyer for the Republican National Committee.
Mr. Rove uses several e-mail accounts, including one with the Republican National Committee, one with the White House and a private domain account that is registered to the political consulting company he once owned. Mr. Waxman said Mr. Kelner reported that in 2005, the national committee adopted a new policy, specifically aimed at Mr. Rove, which “removed Mr. Rove’s ability to personally delete his e-mails from the R.N.C. server.”
Four Years Worth Of Rove's E-Mail 'Missing'
Rove E-Mail Sought by Congress May Be Missing
RNC Took Away His Access to Delete Files in 2005
RNC Took Away His Access to Delete Files in 2005
By Michael Abramowitz
Washington Post Staff Writer
Friday, April 13, 2007; A01
A lawyer for the Republican National Committee told congressional staff members yesterday that the RNC is missing at least four years' worth of e-mail from White House senior adviser Karl Rove that is being sought as part of investigations into the Bush administration, according to the chairman of the House Oversight and Government Reform Committee.
GOP officials took issue with Rep. Henry Waxman's account of the briefing and said they still hope to find the e-mail as they conduct forensic work on their computer equipment. But they acknowledged that they took action to prevent Rove -- and Rove alone among the two dozen or so White House officials with RNC accounts -- from deleting his e-mails from the RNC server. Waxman (D-Calif.) said he was told the RNC made that move in 2005.
In a letter to Attorney General Alberto R. Gonzales, Waxman said the RNC lawyer, Rob Kelner, also raised the possibility that Rove had personally deleted the missing e-mails, all dating back to before 2005. GOP officials said Kelner was merely speaking hypothetically about why e-mail might be missing for any staffer and not referring to Rove in particular.
The disclosures helped fan the controversy over what the White House has acknowledged to be the improper use of political e-mail accounts to conduct official government business.
Democrats are suspicious that Rove and other senior officials were using the political accounts, set up by the RNC, to avoid scrutiny from Congress. E-mails already in the public record suggest that at least some White House officials were mindful of a need not to discuss certain matters within the official White House e-mail system.
Yesterday, congressional Democrats denounced the White House after administration officials acknowledged this week that e-mails dealing with official government business, including the firing of U.S. attorneys, may have been lost because they were improperly sent through political messaging accounts. Twenty-two White House officials -- and a total of about 50 over the course of the administration -- have been given such accounts to avoid doing political work on government equipment.
Sen. Patrick J. Leahy (D-Vt.), chairman of the Judiciary Committee, accused the White House of lying about the matter. He was joined by the ranking Republican on the committee, Sen. Arlen Specter (Pa.), in calling on the White House to join Congress in setting up a "fair and objective process for investigating this matter."
"You can't erase e-mails, not today," Leahy said in an angry speech on the Senate floor. "They've gone through too many servers. Those e-mails are there -- they just don't want to produce them. It's like the infamous 18-minute gap in the Nixon White House tapes."
White House officials rejected that explanation. "What we have done has been forthcoming, honest," spokeswoman Dana Perino said. "We are trying to understand to the best of our ability the universe of the e-mails that were potentially lost, and we are taking steps to make sure that we use the forensics that are available to retrieve any of those that are lost."
The disclosures came as White House counsel Fred F. Fielding rejected demands for a compromise on providing testimony and records to Congress related to the prosecutor firings. In a letter to the heads of the House and Senate Judiciary committees, Fielding said the White House is standing firm with its "unified offer," which would include providing a limited set of documents. The White House has proposed allowing Rove and other aides to be interviewed privately, without a transcript and not under oath.
Fielding also wrote that it "remains our intention to collect e-mails and documents" from the RNC and other outside accounts used by White House officials. The Senate Judiciary Committee approved, but did not issue, new subpoenas for the Justice Department yesterday.
Gonzales, meanwhile, has been preparing for a pivotal appearance on Tuesday before the committee, including mock testimony sessions lasting up to five hours a day, officials said.
E-mails from Rove and other White House officials potentially figure in a number of congressional investigations. Democrats are seeking the RNC e-mails as part of an effort to determine the extent of Rove's role in firing the U.S. attorneys and the alleged politicization at the General Services Administration.
The RNC yesterday turned over to the White House a copy of e-mail records for administration officials still on the RNC server to determine whether any of them are privileged or whether they can be provided to congressional investigators. Officials indicated that they would include post-2005 e-mails from Rove.
GOP officials said they are also trying to determine whether they can recover other e-mail that may have been deleted through regular purges of e-mails or by deliberate deletion by White House staff. Waxman said the RNC indicated that it had destroyed all e-mail records from White House officials in 2001, 2002 and 2003.
In 2004, the RNC exempted White House officials from its policy of purging all e-mail after 30 days, so any lost e-mail after that date would have been presumably deleted by a White House official.
"We do not know what exists pre-2005 -- we are in the process of trying to determine what, if anything, does," RNC spokeswoman Tracey Schmitt said. Another GOP official familiar with the inner workings of the RNC said officials have no evidence that Rove had deliberately deleted any e-mail. Kelner referred calls to the RNC, and the White House said Rove was not available to comment.
Republican officials also said there was nothing nefarious in their decision to take precautions to preserve Rove's e-mail. According to Waxman, Kelner told his staff that the RNC commenced a program in 2005 that took away Rove's ability to personally delete his e-mails. GOP officials said that was done only to preserve records for possible use in legal settings, not out of any concern that Rove would seek to scrub his e-mail account.
Erasing an e-mail message beyond hope of retrieval is not easy, experts said.
In general, deleting any file on a computer does not make it go away, because the computer normally will erase not the file but rather its own records of it. "The data is not gone until it is overwritten," said John Christopher, senior data-recovery engineer at Novato, Calif.-based DriveSavers. The "deleted" file will remain on the hard drive, where it can still be found and read until other data are saved to the same spot.
The same thing happens with e-mail: Trashing a message only means that the mail program clears its records of where it had filed that e-mail in its own database.
Paul Robichaux, a principal with the Redmond, Wash., technology services firm 3Sharp and the author of three books about Microsoft's e-mail software, compared it to a library that removes the entry for a book from its card catalogue: "The book is still on the shelf."
Staff writers Dan Eggen and Rob Pegoraro and washingtonpost.com staff writer Paul Kane contributed to this report.
For God’s Sake: PAUL KRUGMAN
THE COMPLETE ARTICLE
THE NEW YORK TIMES
THE NEW YORK TIMES
OP-ED COLUMNIST
For God’s Sake
By PAUL KRUGMANPublished: April 13, 2007
The infiltration of the federal government by large numbers of people seeking to impose a religious agenda is one of the most important stories of the last six years.
In 1981, Gary North, a leader of the Christian Reconstructionist movement — the openly theocratic wing of the Christian right — suggested that the movement could achieve power by stealth. “Christians must begin to organize politically within the present party structure,” he wrote, “and they must begin to infiltrate the existing institutional order.”
Today, Regent University, founded by the televangelist Pat Robertson to provide “Christian leadership to change the world,” boasts that it has 150 graduates working in the Bush administration.
Unfortunately for the image of the school, where Mr. Robertson is chancellor and president, the most famous of those graduates is Monica Goodling, a product of the university’s law school. She’s the former top aide to Alberto Gonzales who appears central to the scandal of the fired U.S. attorneys and has declared that she will take the Fifth rather than testify to Congress on the matter.
The infiltration of the federal government by large numbers of people seeking to impose a religious agenda — which is very different from simply being people of faith — is one of the most important stories of the last six years. It’s also a story that tends to go underreported, perhaps because journalists are afraid of sounding like conspiracy theorists.
But this conspiracy is no theory. The official platform of the Texas Republican Party pledges to “dispel the myth of the separation of church and state.” And the Texas Republicans now running the country are doing their best to fulfill that pledge. . .
And there’s another thing most reporting fails to convey: the sheer extremism of these people.
You see, Regent isn’t a religious university the way Loyola or Yeshiva are religious universities. It’s run by someone whose first reaction to 9/11 was to brand it God’s punishment for America’s sins. . .
Next week Rudy Giuliani will be speaking at Regent’s Executive Leadership Series.
Wednesday, April 11, 2007
Critics say error in trial casts doubt on acting attorney
Tuesday, April 10, 2007 - 12:00 AM
Jeffrey Sullivan is a candidate for U.S. attorney.
By Natalie Singer
Seattle Times staff reporter
With more than 30 years of experience as a prosecutor, Jeffrey Sullivan, the acting U.S. attorney for Western Washington, should have the legal and political chops to permanently assume the position left vacant by the firing of his former boss, John McKay.
Sullivan, one of three lawyers being considered by the White House for the job, headed the high-profile criminal division under McKay. Before that, he spent 27 years as the elected Yakima County prosecutor. Described by allies as thorough, thoughtful and committed to justice, he has tried more than 100 jury cases and has argued before the U.S. Supreme Court.
But as the candidates for the post are now scrutinized, others say another side of Sullivan shouldn't be overlooked: that he once withheld evidence that could have cleared an innocent man. Among those critics are two Seattle legal experts who say it casts doubt over whether Sullivan is an appropriate choice for U.S. attorney.
In 2004, a state Court of Appeals ruled that Sullivan, as Yakima County prosecutor, had been responsible for "egregious misconduct" in a 2002 robbery trial when he connected a stolen gun to a defendant named Alexander Martinez, even though Sullivan knew of evidence disproving the connection.
"The State prosecutor's withholding of exculpatory evidence until the middle of a criminal jury trial is likewise so repugnant to principles of fundamental fairness that it constitutes a violation of due process," the court ruled.
Sullivan claims the matter was a clerical error.
Now some critics say the case was shocking enough to question making Sullivan one of the top law-enforcement officials in the state. His supporters, though, say enough doubt remains about Sullivan's role that it shouldn't disqualify him.
"You have to place it in context — things can happen," said King County Prosecutor Norm Maleng, one of several prominent backers. "He's a gifted trial lawyer in the courtroom, a wonderful advocate, a superb manager."
Sullivan, 63, is being considered for the job along with former Republican congressman Rick White and Michael Vaska, a Seattle corporate lawyer.
Sullivan has been serving as U.S. attorney since McKay was fired by the Bush administration in December. The firing, one of among eight involving U.S. attorneys forced out by the administration, has triggered accusations of politicizing the Justice Department and has put Attorney General Alberto Gonzales in a fight for his job.
A gun, a witness, a jury
In January 2002, Sullivan was the Yakima County prosecuting attorney trying fruit-company manager Alexander Martinez for conspiracy to commit murder and other crimes in Yakima County Superior Court.
Martinez was accused of helping to rob a co-worker on March 20, 2001. Two brothers testified Martinez had given them two handguns, a black one and a silver one, to use in the robbery.
Sheriff's deputies learned the silver gun had been stolen in a burglary in October 2000. And a fruit-company worker told police Martinez had once offered to sell her two guns — black and silver. But at first she was not sure of the exact date.
Later, two months before the trial, the woman testified that Martinez had actually offered to sell her a silver gun in December 1999 so it could not have been the same gun stolen in 2000 and used in the robbery.
Nevertheless, Sullivan told the jury the stolen gun was connected to Martinez and the robbery.
Two weeks into the trial, Martinez's attorney, Adam Moore, realized he had never been made aware of the contradictions about the gun because he hadn't been given the original burglary report that showed the gun had been stolen after Martinez allegedly offered a silver gun to his co-worker.
Moore declined comment for this story.
The trial ended in a hung jury, and the state refiled charges. Martinez's defense attorney alleged government misconduct, and the judge dismissed the case. Sullivan's appeal was rejected as the court issued its ruling that he had withheld evidence.
But Sullivan was not sanctioned. The Washington State Bar Association reviewed the case after the original Superior Court judge complained, said Lenell Rae Nussbaum of Seattle, Martinez's appeals lawyer. It found insufficient evidence of unethical behavior and dismissed the grievance in January 2005.
Previous controversy
It wasn't the first time Sullivan had run into trouble as a prosecutor.
In 2000, during his unsuccessful run for a seat on the state Supreme Court, it came to light that in the late 1980s Sullivan had used a racial slur in describing Hispanic inmates at the Yakima County jail. Sullivan apologized after an uproar from the state's Hispanic, Native American, Asian and African-American bar associations.
Sullivan's first public controversy had come years earlier, in 1979, when the American Civil Liberties Union and victim advocates loudly protested a policy he enacted requiring rape victims to take lie-detector tests. Sullivan has since said the policy was a mistake.
In 1991, Sullivan was also criticized for secretly arraigning a Yakima police lieutenant on a theft charge. Sullivan responded that he thought the officer had a right to privacy.
But critics have not raised any of those issues publicly in Sullivan's present bid for U.S. attorney. None of the minority bar associations have taken an official position on his candidacy.
Actions defended
Sullivan has declined to comment on the Martinez case and his candidacy for the permanent U.S. attorney post. But in a document he sent to the bar association during the Martinez case, he defended his actions, saying "there was absolutely no proof that I intentionally withheld the burglary report from defense counsel," he wrote.
On the contrary, he said, he believed his paralegal had sent the reports to the defense. And he has argued that when he first received the report of the gun theft, he wasn't immediately aware it was important to Martinez's defense.
The appeals court, though, rejected that argument.
"Mr. Sullivan's insistence that he did not know the significance of the Ramirez burglary report until the middle of the trial is ludicrous," it wrote.
Critics raise doubts
It's not unusual for longtime attorneys, especially those who handle high-profile cases, to be admonished by judges or to be investigated by the state bar association. However, University of Washington law professor Robert Aronson called it "very disturbing for someone who would serve as the United States attorney."
The Constitution demands that prosecutors provide defendants with evidence that might exonerate them, Aronson said. And Sullivan's conduct in the Martinez case was particularly egregious because the evidence about the gun was not a mere technicality, he said. It raised substantial doubt of Martinez's guilt.
Another expert said the case seemed out of character for Sullivan — but disturbing nonetheless. "He's not somebody viewed as a mad dog who would do anything to get a conviction; he was viewed as tough but reasonably fair," said John Strait, a Seattle University associate law professor.
"If it's true that he actually stacked the deck on evidence in homicide case in order to gain a conviction, that would be very, very serious misconduct, and would factor into a decision, in my view, on whether he should be U.S. attorney."
Then again, Strait said, if Sullivan's mistake was the bureaucratic error as Sullivan claims, it shouldn't disqualify him. "It's not a badge of honor, but mistakes are made," he said.
Supporters impressed
Supporters have been quick to rally behind Sullivan on that very point. "The defense lawyer couldn't say for certain whether or not he ever received those materials," said John Wolfe, a longtime King County defense attorney who has worked with Sullivan. " If Jeff tells me something is true, I believe him; I've butted heads with Jeff, but I've never questioned his work."
Maleng said Sullivan's record should be evaluated in its entirety.
"I would expect in 30-plus years as a prosecutor, he would have received one complaint like that," said Maleng, who has been King County prosecuting attorney since 1979.
"These issues are ones we all face." [But] his record is a remarkable achievement."
Natalie Singer: 206-464-2704 or nsinger@seattletimes.com
A light bulb goes off on the Washington Post editorial page
Tuesday April 10, 2007 07:59 EST
Even more than most national journalists, The Washington Post's Fred Hiatt has been a stalwart defender of the Bush administration with regard to the U.S. attorneys scandal. On March 26, 2007 -- just two weeks ago -- Hiatt wrote:
Mr. Gonzales finds himself in this mess because he and others in his shop appear to have tried to cover up something that, as far as we yet know, didn't need covering. U.S. attorneys serve at the pleasure of the president -- with the advice and consent of the Senate. The president was entitled to replace any he chose, as long as he wasn't intending to short-circuit ongoing investigations.While the Editorial acknowledged that there appears to have been what Hiatt politely called "shifting explanations for the eventual dismissals of eight federal prosecutors," he argued that there was no evidence of any underlying impropriety with regard to the firings themselves.
But today, Hiatt has another Editorial on this scandal, and he says exactly the opposite of what he said two weeks ago. Today's Editorial focuses on the dismissal of New Mexico U.S. Attorney David Iglesias, and argues:
THE DISPUTE between Democratic lawmakers and the Bush administration over access to documents and interviews with officials about the firing of eight U.S. attorneys seems to be escalating, not resolving. That's unfortunate, because it's become clear that the administration must make more information available than has been forthcoming. Perhaps the clearest case for that -- and the most troubling evidence of improper political motivations -- involves New Mexico prosecutor David C. Iglesias.In just two weeks, we went from firings that "didn't need covering" to "troubling evidence of improper political motivations." That's progress. The Editorial notes that Igelsias was never on any of the lists of prosecutors targeted for dismissal until November, 2006 -- shortly before the firings were complete. Hiatt asks:
How and why? The answers, though still incomplete, do not paint the Bush administration in an attractive light.After recounting the fact that New Mexico Republicans Sen. Pete Dominici and Rep. Heather Wilson were both pressuring Iglesias to prosecute Democratic officials in New Mexico based on "voter fraud" accusations (accusations which Igelsias, after reviewing the evidence, concluded lacked any merit), and that Dominici repeatedly called DOJ to complain about Iglesias' failure to prosecute those Democrats (complaints which Igelsias labelled "reprehensible," because those demanding prosecution had no idea whether there was actual evidence warranting prosecution), Hiatt notes:
In addition, New Mexico Republican Party Chairman Allen Weh complained to White House adviser Karl Rove about Mr. Iglesias. And, last but not least, President Bush himself passed on to the attorney general complaints about U.S. attorneys, including Mr. Iglesias, who were allegedly failing to aggressively pursue voter fraud cases.Hiatt then outlines the multiple questions that Karl Rove must answer -- questions which demonstrate just how central Rove's involvement is in this entire scandal:Mr. Sampson's testimony showed that Mr. Iglesias was added to the list after Mr. Rove also complained to the attorney general about Mr. Iglesias's supposedly poor performance on voter fraud. This revelation not only adds to the evidence undercutting the attorney general's professions of ignorance about the whole episode; it deepens the sense that the judgment about whom to fire was influenced, if not dictated, by political considerations.
What prompted Mr. Rove's complaint? Did he speak with Mr. Domenici or Ms. Wilson? Was there in fact a problem with Mr. Iglesias's record on voter fraud? Was he dismissed for failing to bring voter fraud cases that he did not believe were justified by the evidence? Was voter fraud the real reason for his dismissal, or his alleged absenteeism because of military service? Or was it because he failed to produce in time an indictment that could have been helpful to Ms. Wilson's endangered reelection bid?Everything Hiatt argued here has been known for many, many weeks -- really for months. Yet until today, Hiatt and his comrades in the national press were insisting that there was absolutely no underlying impropriety here -- and that there was no reason other than petty political games which could possibly motivate anyone to want to question poor, beleaguered Karl Rove under oath.There are reasons to be skeptical about what happened here.
But the whole time, all of the evidence Hiatt just cited was publicly known. And it has been exactly that evidence which bloggers and then Democratic Senators were pointing to in order to insist that there was substantial evidence to suggest very serious wrongdoing with regard to the reason these prosecutors were fired.
From the beginning, one of the key aspects that has made this scandal so significant, and so disturbing, is the clear evidence suggesting that at least some of these prosecutors were fired for failing to pursue criminal prosecutions against Democratic officials -- prosecutions designed to advance Karl Rove's long-standing and well-known voter suppression efforts. These suspicions are backed (as Hiatt finally recognizes) by substantial evidence.
Much of the evidence is, admittedly, circumstantial, but that is so precisely because we have not yet had full hearings with the key witnesses/culprits and full disclosure of key documents. And the reason the pool of information is still so incomplete is because the White House, cheered on by the national media, has steadfastly refused to reveal what it knows (and what it did), choosing instead to hide behind precarious assertions of "executive privilege."
All of this is precisely why it has been so frustrating to watch our national media scoff dismissively at this scandal. If journalists are not interested in allegations that federal prosecutions are being politically manipulated by the White House and DOJ -- with a desire to suppress votes for partisan reasons as one of the motives -- then what executive wrongdoing would they ever find worthy of attention?
Like most of our elite opinion-makers, the most important priority for Fred Hiatt is to demonstrate his superior insight and sober, excruciatingly restrained judgment. So he writes this Editorial as though these are all new revelations and without acknowledging that he made the exact opposite claims just two weeks ago. But better late than never.
Now it's the very, very esteemed Fred Hiatt and the Post Editorial Page -- rather than merely the loudmouth partisan dirty blogging masses -- recognizing that the U.S. attorneys scandal involves accusations of very serious wrongdoing, along with substantial evidence to support those accusations. And even Hiatt now recognizes that Rove and even the President are quite near the center of it all.
Perhaps this Editorial is a signal that national conventional media wisdom will shift. Maybe Time Magazine can find some space to inform their readers about ongoing developments, and the rest of our national press will stop viewing the effort to question Karl Rove and obtain key White House documents as nothing more than a petty, fun game which is just an annoying distraction from the Very Important Business which the Beltway needs to conduct. Whatever it is that caused Fred Hiatt to make arguments today that are the exact opposite of what he said only two weeks ago, let's hope there is more of it.
* * * * *
It was announced yesterday that this will be the last week for Sam Seder's Air America program. Sam is one of the most insightful and well-informed interviewers anywhere, and the cancellation of his show is a genuine loss. I will be on his program this morning, at 10:30 a.m. EST, as part of his final week. The live audio feed can be heard here.
Thursday, March 29, 2007
Sampson: U.S. attorneys fired over Bush priorities
Sampson: U.S. attorneys fired over priorities
Democratic panel chair Leahy says Justice Dept. motivation was improper
The Associated Press
Updated: 9:29 a.m. MT March 29, 2007
WASHINGTON - Eight federal prosecutors were fired last year because they did not sufficiently support President Bush's priorities, Attorney General Alberto Gonzales' former chief of staff said Thursday, defending a standard that Democrats called "highly improper."
"The distinction between 'political' and 'performance-related' reasons for removing a United States attorney is, in my view, largely artificial," Kyle Sampson told the Senate Judiciary Committee. "A U.S. attorney who is unsuccessful from a political perspective ... is unsuccessful."
The committee's ranking Republican, Sen. Arlen Specter, scolded Sampson for causing an uproar that has distracted the Justice Department and jeopardized Gonzales' job.
"It is generally acknowledged that the Department of Justice is in a state of disrepair, perhaps even dysfunction, because of what has happened," Specter, of Pennsylvania, said. The remaining U.S. attorneys are skittish, he said, "not knowing when the other shoe may drop."
Democrats on the panel immediately rejected the concept of mixing politics with federal law enforcement. They accused the Bush administration of cronyism and trying to circumvent the Senate confirmation process by installing favored GOP allies in plum jobs as U.S. attorneys.
"It corrodes the public's trust in our system of Justice. It's wrong," said Judiciary Committee Chairman Patrick Leahy. "When anybody tries a backdoor way to get around the Senate's constitutional duty and obligation of advise and consent, it does not sit well."
Misleading accounts?
After being sworn, Sampson, who quit earlier this month amid the furor, disputed Democratic charges that the firings were a purge by intimidation and a warning to the remaining prosecutors to fall in line. Nor, he said, were the prosecutors dismissed to interfere with corruption investigations.
"To my knowledge, nothing of the sort occurred here," Sampson told the committee.
Sampson testified that federal prosecutors serve at the president's pleasure and are judged in large part on whether they pursue or resist administration policy.
"I came here today because this episode has been personally devastating to me and my family," Sampson told the panel. "It's my hope that I can come up here today and share the information that this committee and the Congress wants, and frankly put this behind me and my family."
Inaccurate information on Rove
Democrats said Sampson's testimony is key to finding the answers to the political question and a second, investigative query: Did Gonzales and the Justice Department provide misleading accounts of the run-up to the firings?
The answer to both questions is yes, according to a Justice Department letter accompanying new documents released hours before Sampson's appearance.
"The distinction between 'political' and 'performance-related' reasons for removing a United States attorney is, in my view, largely artificial," he said. "A U.S. attorney who is unsuccessful from a political perspective ... is unsuccessful."
The Justice Department admitted Wednesday that it gave senators inaccurate information about the firings and presidential political adviser Karl Rove's role in trying to secure a U.S. attorney's post in Arkansas for one of his former aides, Tim Griffin.
Justice officials acknowledged that a Feb. 23 letter to four Democratic senators erred in asserting that the department was not aware of any role Rove played in the decision to appoint Griffin to replace U.S. Attorney Bud Cummins in Little Rock, Ark.
Acting Assistant Attorney General Richard Hertling said that certain statements in last month's letter to Democratic lawmakers appeared to be "contradicted by department documents included in our production."
'Artificial' distinctions
That admission, only hours before Sampson's testimony, took some of the sting out of Democrats' key pieces of evidence that the administration had misled Congress.
Still, Sampson provided plenty of fodder. He acknowledged planning the firings as much as two years ago with the considered, collective judgment of a number of senior Justice Department officials.
However, he denied that the firings were improper, and he spoke dismissively of Democrats' condemnation of what they call political pressure in the firings.
Sampson maintained that adherence to the priorities of the president and attorney general was a legitimate standard.
"Presidential appointees are judged not only on their professional skills but also their management abilities, their relationships with law enforcement and other governmental leaders and their support for the priorities of the president and the attorney general," he said.
The Rove factor
Sampson strongly denied Democrats' allegations that some of the prosecutors were dismissed for pursuing Republicans too much and Democrats not enough in corruption cases.
"To my knowledge, nothing of the sort occurred here," he said.
The White House said it will withhold comment on Sampson's testimony until he actually testifies.
The Feb. 23 letter, which was written by Sampson but signed by Hertling, emphatically stated that "the department is not aware of Karl Rove playing any role in the decision to appoint Mr. Griffin." It also said that "the Department of Justice is not aware of anyone lobbying, either inside or outside of the administration, for Mr. Griffin's appointment."
Those assertions are contradicted by e-mails from Sampson to White House aide Christopher G. Oprison on Dec. 19, 2006, about a strategy to deal with senators' opposition to Griffin's appointment. In the e-mail, Sampson says there is a risk that senators might balk and repeal the attorney general's newly won broader authority to appoint U.S. attorneys.
"I'm not 100 percent sure that Tim was the guy on which to test drive this authority, but know that getting him appointed was important to Harriet, Karl, etc," Sampson wrote. Former White House Counsel Harriet Miers was among the first people to suggest Griffin as a replacement for Cummins.
Said White House spokesman Tony Fratto:"We have been open about the fact that Karl Rove and others were enthusiastic supporters of Tim Griffin."
© 2007 The Associated Press. All rights reserved.
Tuesday, March 27, 2007
Poll Backs Supoenas of Bush Aides
Poll Backs Supoenas of Bush Aides
"Americans overwhelmingly support a congressional investigation into White House involvement in the firing of eight U.S. attorneys, and they say President Bush and his aides should answer questions about it without invoking executive privilege. In a USA TODAY/Gallup Poll taken Friday-Sunday, respondents said by nearly 3-to-1 that Congress should issue subpoenas to force White House officials to testify." (USA Today)
"Americans overwhelmingly support a congressional investigation into White House involvement in the firing of eight U.S. attorneys, and they say President Bush and his aides should answer questions about it without invoking executive privilege. In a USA TODAY/Gallup Poll taken Friday-Sunday, respondents said by nearly 3-to-1 that Congress should issue subpoenas to force White House officials to testify." (USA Today)
Poll Backs Supoenas of Bush Aides
Poll Backs Supoenas of Bush Aides
"Americans overwhelmingly support a congressional investigation into White House involvement in the firing of eight U.S. attorneys, and they say President Bush and his aides should answer questions about it without invoking executive privilege. In a USA TODAY/Gallup Poll taken Friday-Sunday, respondents said by nearly 3-to-1 that Congress should issue subpoenas to force White House officials to testify." (USA Today)
"Americans overwhelmingly support a congressional investigation into White House involvement in the firing of eight U.S. attorneys, and they say President Bush and his aides should answer questions about it without invoking executive privilege. In a USA TODAY/Gallup Poll taken Friday-Sunday, respondents said by nearly 3-to-1 that Congress should issue subpoenas to force White House officials to testify." (USA Today)
The Strange Hire of Monica Goodling
While everyone's attention is focused on Monica Goodling's invocation of the Fifth, emails and Executive subornation of an objective process in how the DOJ selects its targets for prosecution, the larger point - Executive appointments, job qualifications and how failing to meet those qualifications lead to mistakes.
For starters, we all know that she went to the hithertofore unheard of Messiah College, which, judging from its website, is on the social conservative frige.
At Messiah College our mission is to educate men and women toward maturity of intellect, character and Christian faith in preparation for lives of service, leadership and reconciliation in church and society.
I guess Monica kinda missed the lofty goals of that statement, but that is pretty much what conservatives do - talk big in order to achieve personal gain.
So anyway, we learn from the Regent U. website that Monica is a 1999 graduate of that law school.
We also know that Regent is operated by nutty social conservative Pat Robertson, and is definitely not imbued with a mainstream curriculum.
Now for the fun part - she goes on to be the DOJ spokeswoman - as a 1999 law graduate. Here's an example of her work, her public face on the Hamdi case:
Finally, at the time all hell broke loose, this seven year lawyer (?) was Attorney General Alberto Gonzales' senior counsel and White House liaison.
I'm trying to square these appointments with the notion of competent governance. The fevered pronunciations of doom by this administration would dictate that an important slot like this be filled by someone with experience and gravitas, someone of proven competence whose advice could be relied on by the AG - not some inexperienced, weirdly trained neophyte whose law credentials are weak and who was selected in order to toss a banquet of bones to the noisy fringe of the party.
By high bitrate
Friday, March 23, 2007
Don't expect the truth from Karl Rove
Bush's top political aide has built his career on diverting and deceiving; he'd do the same under oath.
CONGRESS WANTS TO hear from Karl Rove, and members want him sworn in. Rather than accept a politically expedient deal from the White House — a no-oath interview — Senate and House committees have approved subpoenas for Rove and others. Lawmakers hope to figure out whether Rove hatched the plan to fire U.S. attorneys who were not hewing to the Republican Party's political playbook.
Whether Rove chats or testifies, Congress will surely be frustrated. Asking Rove questions is simply not an effective method of ascertaining facts. Reporters who, like me, have dogged the presidential advisor from Texas to Washington quickly learn how skilled he is at dancing around the periphery of issues. Any answers he does deliver can survive a thousand interpretations. Few intellects are as adept at framing, positioning and spinning ideas. That's a great talent for politics. But it's dangerous when dealing with the law.
Rove has testified under oath before investigative bodies twice, and in neither case was the truth well served. In 1991, he was sworn in before the Texas state Senate as a nominee to East Texas State University's board of regents. The state Senate's nominations committee, chaired by Democrat Bob Glasgow, was eager to have Rove explain his relationship with FBI agent Greg Rampton.
Rampton was a controversial figure in Texas, and Democrats suspected that he'd been consorting with Rove for years. During the 1986 gubernatorial race, when a listening device was discovered in Rove's office, it was Rampton who investigated. No one was ever charged — and Democrats suspected that Rove planted the bug himself to distract reporters from the faltering campaign of his client, Bill Clements (who won the election).
Then, in 1989, Rampton launched a series of devastating investigations into every statewide Democratic officeholder in Texas, including Agricultural Commissioner Jim Hightower. Rove (at the time running Republican Rick Perry's campaign for that job) often leaked things to reporters, such as whose names were on subpoenas before they were issued.
So when the Texas state Senate committee found nominee Rove before it in 1991, members thought they had the power to get at the truth.
"How long have you known an FBI agent by the name of Greg Rampton?" Glasgow asked.
Rove paused for a breath. "Ah, senator, it depends — would you define 'know' for me?"
Rove, who later vilified President Clinton's request for a definition of "is," clearly had his own linguistic issues.
But Glasgow pressed on: "What is your relationship with him?"
Rove said: "Ah, I know, I would not recognize Greg Rampton if he walked in the door. We have talked on the phone a var- — a number of times. Ah, and he has visited in my office once or twice, but we do not have a social or personal relationship whatsoever…."
Rove's famous memory, which recalls precinct results from 100-year-old presidential elections, often seems trained only to serve his political ends. In an interview with me after the 2000 presidential election, Rove said he did not remember meeting with Rampton at all. But in fact, Rove had met with Rampton — and he even disclosed it on a questionnaire after George H.W. Bush nominated him to the Board for International Broadcasting. In sworn documents, Rove stated that he met with Rampton in 1990 during the investigation of Hightower — an encounter that surely fits the definition of "know."
Rove's memory also made some creative leaps during a pretrial hearing in 1993. Travis County Dist. Atty. Ronnie Earle was preparing to prosecute Rove client Kay Bailey Hutchison, who was the Texas state treasurer. A grand jury had indicted her for allegedly using government phones and computers to raise campaign money. When law enforcement officers raided the treasurer's building to confiscate evidence, reporters documented the whole thing.
Hutchison's attorneys filed for a change of venue because of a perceived political and media imbalance, which they insisted made a fair trial impossible in Austin. Rove, called to the stand to offer evidence of bias against Republicans, told the court that two reporters had informed him that they were tipped off to the raid by D.A. investigators.
Under oath, Rove named David Elliot of the Austin American-Statesman and Wayne Slater from the Dallas Morning News as the reporters. Both men later told me they hadn't spoken with Rove, nor had they told anyone they had received a tip from the D.A.'s office. They had gotten a call from staffers at the treasurer's office, which is precisely how all of the other journalists, including myself, learned about the raid.
If Rove winds up under oath before Congress, members will get a command performance by a man with masterful communications skills. They can expect to hear artful impressions, bits of information and a few stipulated facts.
But they should not expect the truth.
Whether Rove chats or testifies, Congress will surely be frustrated. Asking Rove questions is simply not an effective method of ascertaining facts. Reporters who, like me, have dogged the presidential advisor from Texas to Washington quickly learn how skilled he is at dancing around the periphery of issues. Any answers he does deliver can survive a thousand interpretations. Few intellects are as adept at framing, positioning and spinning ideas. That's a great talent for politics. But it's dangerous when dealing with the law.
Rove has testified under oath before investigative bodies twice, and in neither case was the truth well served. In 1991, he was sworn in before the Texas state Senate as a nominee to East Texas State University's board of regents. The state Senate's nominations committee, chaired by Democrat Bob Glasgow, was eager to have Rove explain his relationship with FBI agent Greg Rampton.
Rampton was a controversial figure in Texas, and Democrats suspected that he'd been consorting with Rove for years. During the 1986 gubernatorial race, when a listening device was discovered in Rove's office, it was Rampton who investigated. No one was ever charged — and Democrats suspected that Rove planted the bug himself to distract reporters from the faltering campaign of his client, Bill Clements (who won the election).
Then, in 1989, Rampton launched a series of devastating investigations into every statewide Democratic officeholder in Texas, including Agricultural Commissioner Jim Hightower. Rove (at the time running Republican Rick Perry's campaign for that job) often leaked things to reporters, such as whose names were on subpoenas before they were issued.
So when the Texas state Senate committee found nominee Rove before it in 1991, members thought they had the power to get at the truth.
"How long have you known an FBI agent by the name of Greg Rampton?" Glasgow asked.
Rove paused for a breath. "Ah, senator, it depends — would you define 'know' for me?"
Rove, who later vilified President Clinton's request for a definition of "is," clearly had his own linguistic issues.
But Glasgow pressed on: "What is your relationship with him?"
Rove said: "Ah, I know, I would not recognize Greg Rampton if he walked in the door. We have talked on the phone a var- — a number of times. Ah, and he has visited in my office once or twice, but we do not have a social or personal relationship whatsoever…."
Rove's famous memory, which recalls precinct results from 100-year-old presidential elections, often seems trained only to serve his political ends. In an interview with me after the 2000 presidential election, Rove said he did not remember meeting with Rampton at all. But in fact, Rove had met with Rampton — and he even disclosed it on a questionnaire after George H.W. Bush nominated him to the Board for International Broadcasting. In sworn documents, Rove stated that he met with Rampton in 1990 during the investigation of Hightower — an encounter that surely fits the definition of "know."
Rove's memory also made some creative leaps during a pretrial hearing in 1993. Travis County Dist. Atty. Ronnie Earle was preparing to prosecute Rove client Kay Bailey Hutchison, who was the Texas state treasurer. A grand jury had indicted her for allegedly using government phones and computers to raise campaign money. When law enforcement officers raided the treasurer's building to confiscate evidence, reporters documented the whole thing.
Hutchison's attorneys filed for a change of venue because of a perceived political and media imbalance, which they insisted made a fair trial impossible in Austin. Rove, called to the stand to offer evidence of bias against Republicans, told the court that two reporters had informed him that they were tipped off to the raid by D.A. investigators.
Under oath, Rove named David Elliot of the Austin American-Statesman and Wayne Slater from the Dallas Morning News as the reporters. Both men later told me they hadn't spoken with Rove, nor had they told anyone they had received a tip from the D.A.'s office. They had gotten a call from staffers at the treasurer's office, which is precisely how all of the other journalists, including myself, learned about the raid.
If Rove winds up under oath before Congress, members will get a command performance by a man with masterful communications skills. They can expect to hear artful impressions, bits of information and a few stipulated facts.
But they should not expect the truth.
How 41 Pages Helped Unseat Lam
An anonymously written Border Patrol report, laced with editorial comments, pushed criticisms about the former U.S. attorney into the media spotlight.
Thursday, March 22, 2007 | On April 6, 2006, a Florida Republican lambasted former U.S. Attorney Carol Lam during a House Judiciary Committee meeting. The rebuke earned nary a peep in the San Diego media.
Attorney General Alberto Gonzales was on Capitol Hill testifying before the group of lawmakers. While the media focused on Gonzales' lengthy testimony about a secret wiretap program, U.S. Rep. Ric Keller, R-Fla., took Lam to task.
"Here's some straight talk," he told Gonzales. "The pathetic failure of your U.S. Attorney in San Diego to prosecute alien smugglers who've been arrested 20 times is a demoralizing slap in the face to Border Patrol agents who risk their lives every day."
It was a major rebuke of San Diego's top federal prosecutor. And though it was uttered during public testimony, it didn't draw any media attention to Lam or her office. While plans to oust Lam were already being developed, the media hadn't focused her choice not to focus on smaller smuggling cases.
But when an anonymously authored 41-page Border Patrol report was released by U.S. Rep. Darrell Issa, R-Vista, the media's spotlight followed. The document made public what Justice Department officials were privately saying had concerned them: that Lam was giving less attention to human smugglers than she should.
A May 18 Associated Press story, based on that 41-page report, said a lack of border smuggler prosecutions was "demoralizing" the Border Patrol. The report, from the El Cajon substation, said agents were catching smugglers only to release them, because they weren't a priority prosecution. The report was leaked by Issa, who had been one of Lam's leading antagonists -- and would become an even more prominent critic in the coming days and months.
Issa had criticized Lam before, inquiring about border smuggling cases as early as 2004. While those inquiries received brief responses from the Justice Department, this assault was different. The media seized on the report, and the story exploded. Issa appeared on CNN to talk about Lam's performance. It caught the eye of then-Senate Majority Leader Bill Frist, R-Tenn, according to an e-mail from Frist's chief counsel to a senior Justice Department official.
That 41-page report became a vital cog in Republican effort to focus attention on Lam's prosecutorial record -- an assault that ultimately brought down the prosecutor. It focused the media spotlight on Lam's performance, put her on the defensive and brought unwanted attention to the Justice Department, according to internal e-mails.
While politicians had been questioning Lam's border record for two years and Justice Department officials had been considering whether to push out Lam, the release of the Border Patrol report appears to have catalyzed the Lam opposition. Internal Justice Department documents show that the report's release not only set off the media frenzy, but also internal discussions between Lam and her superiors in Washington as they set about damage control.
But it is oddly written and anonymously sourced. While full of statistics, charts and graphs, editorialized comments are interspersed throughout. It ruminates about the unfairness experienced by two immigrants who died when a smuggler -- caught three times previously -- crashed his vehicle, awkwardly attempting to humanize the Border Patrol's targets. "The deceased were illegal aliens; however, they did not deserve this fate," the report says.
At another point, the author becomes philosophical when asking why agents risk their lives to stop smugglers if the lawbreakers can "just walk away from the whole ordeal scot-free."
Lam defended her record in print and in statements to CNN, saying the most dangerous offenders were her highest priority. About half of her 110 attorneys were working on border cases, she said. And she attacked the report as being an altered, unofficial version of an earlier document from the Border Patrol's El Cajon substation.
In her statement to CNN, she said: "Many of the comments ... are editorial comments inserted by an unidentified individual, and they were not approved by or ever seen by Border Patrol management."
Lam sent two urgent cables to her superiors as the media attention unfolded. A Justice Department attorney sent them to the White House. In Washington, Lam's superiors were discussing how to handle Issa's criticism.
"She has been sitting quiet rather than attempting to respond publicly by explaining the resource limitations that she maintains affect the office's ability to do more than smuggling cases," Ronald Tenpas, a Justice Department attorney, wrote to several high-ranking Justice Department officials in a May 23 e-mail released this week as part of the congressional investigation into Lam's firing. "She is willing to change course if folks think that would be beneficial."
Six days after the Associated Press story broke, Issa's office sent a letter to Lam, in which the congressman called the memo "an embarrassment to your office."
Monica Goodling, a Justice Department spokeswoman, sent the letter to Kyle Sampson, Gonzales' chief of staff who resigned in the attorney firing scandal's wake, and two other high-ranking officials.
"FYI," she wrote, "the assault continues."
Sampson and William Mercer, the No. 3 Justice official, discussed by e-mail whether to send more attorneys to San Diego. Sampson wanted to know if anyone had ever "woodshedded [Lam] re immigration enforcement."
"There are good reasons not to provide extensive resources to [San Diego,]" Mercer responded. "It will send the message that if your people are killing themselves, the additional resources will go to folks who haven't prioritized the same enforcement priorities."
Issa had the report several months before taking it public. He received it and several other related documents in the fall of 2005 from "a senior source in the Department of Homeland Security," Issa spokesman Frederick Hill said. He declined to identify the source, but said Issa didn't release the report until May because he hadn't had time to sort through it and verify the information.
"It was focusing attention on a problem that no one at the Department of Justice wanted to get into," Hill said.
The report brought the public attention. But behind the scenes, the plan to force Lam out was already in the works. As early as April 14 -- eight days after the Florida Republican rebuked Lam -- Sampson had alerted White House officials that she would be replaced. Publicly, though, the Justice Department continued to support Lam, including an August 2006 letter to Sen. Dianne Feinstein, D-Calif., that defended Lam's border record.
Democratic lawmakers have speculated that Lam was replaced because of her high-profile prosecution of Randy "Duke" Cunningham, the former congressmen in prison on conspiracy and tax-evasion charges. No mention of that is made, however, in nearly 3,000 e-mails and memos the Justice Department released to Congress earlier this week.
The concerns about Lam's prosecution of smugglers are not unique to U.S. attorneys in border states. William Braniff, a former U.S. attorney in San Diego, said Border Patrol agents may become frustrated after repeatedly arresting and releasing the same smugglers. But that's hardly unusual, he said. Such decisions about where to focus prosecutorial priorities have to be made at all levels of law enforcement, he said.
"They may have some resentment there," Braniff said. "And if it's day in and day out and they see people that are clearly lawbreakers and they're not being prosecuted, they may see this as an injustice. (But) when you start dealing with limited resources, you've got to make judgments."
Rich Pierce, executive vice president of the National Border Patrol Council, the union representing agents, said all patrol sectors across the U.S.-Mexico border question the choices prosecutors make. The difference in San Diego, he said, was the publicity that Lam's guidelines received.
"There's always issues with attorney guidelines," Pierce said. "It doesn't matter where you are."
Asked if he was glad to see Lam fired, Chris Bauder, president of the National Border Patrol Council's local chapter, said: "That doesn't even make a difference. For us the problem was even before. In a way I'd say yes. But it doesn't give me hope that anyone else is going to come in and make any changes. I don't know that there's any benefit for us in that respect."
Some who are familiar with the U.S.-Mexico border say Lam's strategy was appropriate, given the nature and scale of illegal immigration. Prosecuting a coyote -- someone who smuggles immigrants for a typical $1,500 fee -- is often difficult, Braniff said. To prove someone is a smuggler requires the illegal immigrants to testify as material witnesses against the coyote, Braniff said.
"The sheer amounts of immigration cases would make it very difficult to do them all," he said. "You have to start coming up with criteria to limit the numbers."
And prosecuting those cases doesn't serve as a deterrent, he added.
"They're kind of fungible," he said of the coyotes. "There's always somebody who can replace them."
Wayne Cornelius, director of the Center for Comparative Immigration Studies at University of California, San Diego, said federal prosecutors' decisions likely wouldn't affect the smuggling business.
"It's unlikely that stiffer penalties or higher prosecution rates will drive 'coyotes' out of the business," Cornelius wrote in an e-mail. "It's too lucrative, and there are too many clients requiring their services."
By ROB DAVIS Voice Staff Writer
Please contact Rob Davis directly with your thoughts, ideas, personal stories or tips. Or send a letter to the editor.
Why Bush Refuses to Allow Karl Rove and Harriet Miers to Testify Before Congress
----New Developments in the U.S. Attorney Controversy:
Why Bush Refuses to Allow Karl Rove and Harriet Miers to Testify Before Congress, and What Role New White House Counsel Fred Fielding May Play
By JOHN W. DEAN
----
Friday, Mar. 23, 2007
At the outset of this column -- which discusses Bush's new White House Counsel, Fred Fielding -- I must acknowledge that I am the person who first hired, and brought Fielding into the government. He served as my deputy in the Nixon White House, and was untouched by Watergate, because I shielded all my staff from that unpleasant business. Fred is an able lawyer, and now finds himself in the hot seat, with President Bush seemingly looking for a fight with Congress. (But that's what makes the job interesting.)
One further disclosure: I have never been an advocate of executive privilege, except as it might relate to the most sensitive national security information. To the contrary, you show me a White House aide who does not want his conversations and advice to the president revealed, and I will show you someone who should not be talking with or advising a president.
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Of course, I do not know what is transpiring behind closed doors at the White House right now. But I do believe there is more occurring than meets the eye with respect to the potential confrontation developing between the Democratic Congress and the Bush White House. On the surface, the clash appears rather simple: Congress wants information, and Bush does want to provide it if it means breaching the sanctity of the realm in which he receives advice from his aides privately. But this surface conflict, as I will explain, does not get to the bottom of this developing dust-up.
In truth, much more is at stake here for both the Congress and the White House than this bare description of the conflict would indicate. These issues strike at the heart of what post-Watergate conservative Republicans seek to create: an all-powerful presidency. Thus, for the same reason that Vice President Cheney went to extreme lengths to block Congress from getting information about the work of his National Energy Task Force, as I discussed in prior columns such as this one, I expect President Bush to take what will appear to be a similar irrational posture. For both Bush and Cheney, virtually any limit on presidential power is too great.
And this conflict, in the end, is all about presidential power. Moreover, underlying the Administration's defense of unchecked power, is a term that has not been heard since Justice Alito's confirmation hearings: "the unitary executive theory." Once, conservatives rejected a strong presidency. Today, however, the opposite is the case, and the unitary executive theory is central to their argument.
Clashing institutions make good news copy. But understanding why two co-equal branches of our government each have such strong feelings about their need to prevail in this conflict, may help to get to the heart of the matter.
The Contemporary Conservative Vision of Executive Power: A Strong Presidency
In a piece last year for The New Republic's July issue, legal journalist Jeffery Rosen summed up George W. Bush's outlook on the presidency: "One of the defining principles of the Bush administration has been a belief in unfettered executive power. Indeed, President Bush has taken the principle to such unprecedented extremes that an ironic reversal has taken place: A conservative ideology that had always been devoted to limiting government power has been transformed into the largest expansion of executive power since FDR."
Rosen reported that Bush's perspective is not "mere political opportunism--a cynical rationale devised after September 11 to allow the president to do whatever he likes in the war on terrorism." Rather, Rosen explained, Bush's actions stem from his embrace of the "unitary executive theory." (Of course, Bush may not himself have mastered the fine points of this theory, but it is clear he understands the core idea, and acts accordingly.)
Column continues below ↓Bush's governing style is not surprising to those who took a close look at how he governed before he arrived in Washington. Indeed, the perceptive conservative commentator George Will saw it coming.
Will visited Governor Bush in Texas in 1999, and talked as well with the team Bush had assembled to work on his presidential campaign. "They are recasting conservatism by expunging the traditional conservative ambivalence about presidential power," Will reported at the time. "Hence the presence on the cluttered desk of chief speechwriter Mike Gerson of Terry Eastland's book, Energy in the Executive: The Case for the Strong Presidency. Eastland's title comes from Alexander Hamilton's Federalist Paper Number 70: 'Energy in the executive is a leading character in the definition of good government.'" Will then explained the theory that would turn out, later, to be Bush's bottom line: "Eastland's thesis is that 'the strong presidency is necessary to effect ends sought by most conservatives.'"
Strikingly, Will concluded his report with a savvy prediction: "A second Bush presidency would be more muscular than the first in exercising executive power." Will, obviously, made this prediction long before 9/11. His article and his take on the situation are thus excellent evidence that even in a hypothetical world without 9/11, we still would have seen additional executive power grabs from a second-term President Bush.
I raise Terry Eastland's book, in particular, because I have always believed it has been something of a bible for Bush II and his staff. The book is also directly related to the "unitary executive theory." Eastland draws his view of the presidency from the same source attorneys in the Reagan Administration Justice Department's Office of Legal Counsel did, when they came up with the phrase "unitary executive theory" to describe their effort to provide legal justification for the President's taking increasingly aggressive control of the executive branch. At that time, the clash was between the Executive and the independent regulatory agencies, but the principle was the same.
The source upon which both Eastland and those who coined the "unitary executive" theory relied, of course, was Hamilton's Federalists No. 70 -- as I will discuss further below.
What Exactly Is the Unitary Executive Theory? A Short Answer
Before the Alito confirmation hearings, Washington Post reporter Dana Milbank correctly described the "unitary executive theory" as an "obscure philosophy … that favors an extraordinarily powerful president." Milbank found an invocation of this philosophy in the notorious "torture memos."
For example, Milbank quoted a passage from one of the memos that was laced with conservative pipe-dream rhetoric: "The Framers understood the [Commander in Chief] clause as investing the president with the fullest range of power," the memo claimed, including power over "the conduct of warfare and the defense of the nation unless expressly assigned in the Constitution to Congress." Such power was given, the memo theorized, because "national security decisions require the unity in purpose and energy in action that characterize the presidency rather than Congress." (Conservative scholars, I have discovered, have a unique skill of channeling the thinking of the Founders in their writing.)
When the obscure philosophy surfaced during the Alito hearings, Writ guest columnist Jennifer Van Bergen assembled a brisk overview of its salient points. But for a quick and a bit more in-depth course in Unitary Executive Theory 101, I would suggest an analysis by Loyola Law School Professors Karl Manheim and Allan Ides.
Professors Manheim and Ides trace the origins, evolution, and current uses of the unitary executive theory. While it is beyond the scope of their analysis, they also, along the way, provide information useful to deconstruct and critically analyze this concocted effort at legal (and historical) legerdemain. This is not the place for me to unload on this hogwash theory, but I must pause to comment, at least, on its purported links to Alexander Hamilton's purported vision of "a unitary executive."
This was not remotely Hamilton's vision. Listen, for example, to what Morton Rosenberg says; he is a specialist in American Public Law at the non-partisan Congressional Reference Service of the Library of Congress, and he is described by many of those who know him as the smartest guy in the place. Rosenberg was one of the first to correct this loopy scholarship when it began appearing in the early 1980s.
Rosenberg places Hamilton in a realistic context, as he knocks down several shaky pillars upon which unitary executive theorists have tried to build: "The framers had no reason to envisage the management of an industrial nation as the essential function of the office [of the president.]," Rosenberg explains. "Whatever managerial insights Hamilton had were confined to commerce, banking, and monetary policy…. Nor did [the framers] conceive of the presidency as an institutionalized representation of popular will distinct from, let alone capable of opposition to, the will expressed by the legislature. Even Hamilton's most strenuous defenses of executive authority emphasized the president's role as the managerial agent for the legislature, not his popular independence in reflection of some other popular will."
Manheim and Ides explain that the essence of the unitary executive "theory" is "more about power than it is about law." And power, here, means presidential power: The "unitary executive" theory is a theoretical, legal, historical, and Constitutional hook conservatives have invented to expand presidential power.
These "unitarians" postulate, as Manheim and Ides note, "that the authority to enforce federal law and to implement federal policy rest exclusively in the Executive Branch and, most importantly, the ultimate prerogative over this executive function is vested solely and completely in the President, who sits atop the hierarchy of executive power and responsibility." This exclusivity, in the unitarians' view, precludes any but the most minimal role for Congress: Its role, they believe, is simply to decide whether to appropriate money; otherwise, it must butt out completely.
The Relationship of Unitary Executive Theory and Executive Privilege
Eastland's tutorial, set forth in his book, instructed President Bush and his staff to make a big deal out of protecting presidential prerogatives. So, too, does the unitary executive theory, which was developed at the same time that Reagan's Justice Department was doing what Presidents Ford and Carter had been too wary to do: revive Executive Privilege. Neither Ford nor Carter issued guidelines for the executive branch regarding the use of this privilege, for Nixon had given it such a bad name they dared not use it. But the Reagan Administration dared, and did.
Indeed, Reagan's Attorney General, William French Smith had the nerve to issue a memorandum opinion expressly relying on U.S. v Nixon -- the famous Nixon tapes case. In the language quoted by French, the Supreme Court concluded: "The expectation of a President to the confidentiality of his conversations and correspondence … has all the values to which we accord deference for the privacy of all citizens and, added to those values, is the necessity for protection of the public interest in candid, objective, and even blunt or harsh opinions in Presidential decision-making. A President and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately. These are the considerations justifying a presumptive privilege for Presidential communications. The privilege is fundamental to the operation of Government and inextricably rooted in the separation of powers under the Constitution."
The point that French, elided, however, was that the Court had rejected Nixon's claim of an unqualified privilege, and directed that the tapes be produced for in camera inspection (that is, inspection that is secret even from the parties and their attorneys) by the relevant court.
Moreover, in explaining its holding, the Court reasoned as follows: "[W]hen the privilege depends solely on the broad, undifferentiated claim of public interest in the confidentiality of such conversations, a confrontation with other values arises. Absent a claim of need to protect military, diplomatic, or sensitive national security secrets, we find it difficult to accept the argument that even the very important interest in confidentiality of Presidential communications is significantly diminished by production of such material for in camera inspection…."
Not only did this holding result in the rejection of an executive privilege claim, it is also quite vague, and it applies to a judicial, not a legislative subpoena. Nevertheless, Attorney General Smith drew upon it to opine, consistent with the philosophy of protecting presidential prerogatives, that "[t]he interest of Congress in obtaining information for oversight purposes is, I believe, considerably weaker than its interest when specific legislative proposals are in question."
Thus, Smith encouraged President Reagan (and presidents generally) to deny information to Congress when conducting oversight, except "in the most unusual circumstances."
Past Is Probably Not Prologue for Bush: The Gorsuch Fiasco
Interestingly, however, to the displeasure of many, Reagan's White House Counsel Fred Fielding -- now at the center of the current clash, as Bush's counsel -- did not protect the president's prerogatives as vigorously as Reagan's Attorney General would have preferred.
A leading scholar on Executive Privilege, Mark Rozell, reports that although "President Reagan invoked executive privilege on several occasions, he never fully exercised that power. When confronted by congressional demands for information, Reagan generally followed a pattern of initial resistance followed by accommodation of Congress's request. Reagan never made a concerted effort to defend his prerogative in this area. As a result, he further weakened a constitutional presidential power …."
How much of Reagan's reluctance to press the "executive privilege" issue derived from Fielding, Reagan himself, or other Reagan aides, is not known. Also, some of the criticism of Reagan's decision not to aggressively assert the privilege occurred largely after Fielding had left. For instance, Vice President Cheney later insisted that Reagan provided too much information to Congress during their Iran-Contra investigation.
Fielding was White House Counsel, however, during one of the more thrilling episodes involving executive privilege -- one that could parallel the current situation, with Congress calling for testimony by White House aide Karl Rove and former aide Harriet Miers. In explaining what happened back in 1982, I've drawn heavily on -- paraphrasing, greatly abbreviating, and then quoting -- Mark Rozell's report:
Two House committees issued subpoenas to EPA Administrator Anne Gorsuch, directing her to appear before Congress with certain documents. Gorsuch was prepared to turn over the documents, but the Justice Department urged President Reagan to assert executive privilege. When he did so, White House Counsel Fielding assured Gorsuch that "the administration would stand solidly behind this claim of executive privilege."
When Gorsuch invoked the privilege, both committees voted to hold her in contempt, and on December 16, 1982, the House of Representatives voted 259-105 to find her in contempt of Congress. Immediately following the House vote, however, the Justice Department filed civil suit against the House of Representatives. Then, rather than follow the language of the contempt statute, the U.S. Attorney for the District of Columbia -- obviously after being instructed by the Justice Department regarding this matter- refused to "bring the matter before the grand jury for their action" while the suit against the House was pending. (It was a delaying ploy.)
The House requested that the federal district court dismiss the civil lawsuit, which the court did. The court also encouraged the two branches "to settle their differences without further judicial involvement" and warned that "[i]f these two co-equal branches maintain their present adversarial positions, the Judicial Branch will be required to resolve the dispute by determining the validity of the Administrator's claim of executive privilege."
Two weeks later, the Administration made a deal with one of the congressional committees, agreeing to a limited disclosure of the requested information. Again, EPA administrator Gorsuch pushed for full disclosure, but the White House disagreed. Meanwhile, the other congressional committee would not agree to a limited release and continued to press for full disclosure, advising the White House that the investigations would continue until the documents were provided.
Having had enough, Gorsuch resigned her position as head of EPA when the White House finally agreed to release its documents Congress wanted. Following the contempt statute, the U.S. attorney presented a contempt citation to a grand jury, which unanimously declined to indict Gorsuch.
Rozell concludes, "Although the administration initially had taken a strong stand on executive privilege, it backed down in the face of mounting political pressure. The decision to compromise did not settle the executive privilege controversy. The House Committee on the Judiciary further investigated the Justice Department role in the controversy and concluded that the department had misused executive privilege by advocating the withholding of documents that had not been thoroughly reviewed. T bghe committee also alleged that the department withheld documents to cover up wrongdoing at EPA. The administration's compromise served as a temporary political expedient which eventually allowed Congress to examine previously withheld documents and draw broader conclusions about the exercise of executive privilege. Reagan may have won a temporary reprieve from political pressures, but he had lost ground in his effort to re-establish the viability of the doctrine of executive privilege."
It Seems Likely Bush, with Fielding, Will Go to the Wall on Executive Privilege
This time, it is my belief that Bush -- unlike Reagan before him -- will not blink. He will not let Fielding strike a deal, as Fielding did for Reagan. Rather, Bush feels that he has his manhood on the line. He knows what his conservative constituency wants: a strong president who protects his prerogatives. He believes in the unitary executive theory of protecting those prerogatives, and of strengthening the presidency by defying Congress.
In short, all those who have wanted to see Karl Rove in jail may get their wish, for he will not cave in, either -- and may well be prosecuted for contempt, as Gorsuch was not. Bush's greatest problem here, however, is Harriett Miers. It is dubious he can exert any privilege over a former White House Counsel; I doubt she is ready to go to prison for him; and all who know her say if she is under oath, she will not lie. That could be a problem.
John W. Dean, a FindLaw columnist, is a former counsel to the president.
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