Murray Waas » Bradley Schlozman

The Dog Days of Summer and Executive Privilege

murrayw — Fri, 08 Aug 2008 06:38:29 +0000

Late last week, a Federal District Court Judge had scathing words for the Bush administration for claiming executive privilege for refusing to allow former senior White House aides to testify before Congress about the firings of nine U.S. attorneys.

Judge John Bates rebuked the Bush administration for what he said was their “unprecedented” claim of executive privilege.

The scathing opinion said: “The executive cannot identify a single judicial opinion that recognizes immunity for senior presidential advisors in this or any other context. That simple yet critical fact bears repeating: The asserted absolute immunity claim here is entirely unsupported by existing case law.”

Bates went on to say that he doubted very much that if the White House appealed his decision, they had even a remote possibility of prevailing:

“The aspect of this lawsuit that is unprecedented is the notion that [former White House Counsel Harriett Miers [one of those subpoenaed] is absolutely immune from compelled testimony.”

In the past, the Supreme Court had reserved claims by Presidents of absolute immunity only for “very narrow circumstances” such as for issues of national security or foreign affairs. Testimony about the firings of U.S. attorneys was not in that class. And therefore there was little likelihood that a higher court would reverse his decision, Bates said.

Bates suggested that Congress and the White House settle their dispute and allow testimony about the U.S. Attorney firings, even scheduling a settlement conference for Aug. 27, as if his the parties to the case were not the President of the United States and the U.S. Congress– but parties to a small claims court.

Inasmuch as Bates was appointed to the bench by President Bush in 2001 and once worked for Whitewater Special Prosecutor Kenneth W. Starr, he has impeccable conservative credentials.

So did the White House take the judge’s suggestion and agree to negotiate with the House of Representative, agreeing to use him as a mediator of sorts?

Rep. John Conyers, (D-Mich.), the chairman of the House Judiciary Committee hoped that some agreement could be reached with the White House and his committee could hear testimony when Congress returns from its summer recess in September, saying he hopes the White House will “accept this decision” and finally allow Miers and others to testify.

But as Johanna Neuman of the Los Angeles Times first reported, the White House has decided there is no room for compromise.

The White House had told Judge Bates that they wish to appeal his ruling. Here is what they said in a court filing:

Whatever the proper resolution of the extraordinarily important questions presented, the public interest clearly favors further consideration of issues before defendants are required to take actions that may forever alter the constitutional balance of separation of powers.

The end result, as Neuman reports, is that the White House will appeal means that it is unlikely that that Karl Rove, Harriett Miers, or any other senior Bush administration will testify about the firings of U.S. attorneys– or much anything else– until sometime next year.

By then, of course, either Barack Obama or John McCain will be president of the United States.

The motto of this blog: We blog, you decide. (Uh oh, I hope I am not served with legal papers by Fox News in the morning!)

And so for that high minded editorial reason, I am not going to offer an opinion as to whether the White House has delayed testimony on the U.S. attorney firings until after the election because of high minded principles (what the White House says) or to conceal their own wrongdoing (what Democrats say) and to help the McCain campaign by assuring that there are politically embarrassing hearing only a couple of months or so before the Presidential election. Besides McCain’s candidacy, hearing would surely even do more harm to Republican congressional candidates who do not have network newscasts and advertising budgets to distance themselves from President Bush as many would like to do as their re-election prospects stand in the blance.

But if there was a political calculation in withholding testimony by Rove, Miers, and White House officials, is that going to actually lhelp the Republicans in the fall elections?

The answer is almost certainly not:

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

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

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

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

If the reporting of Evan Perez of the Wall Street Journal is correct (and I have great faith in his reporting) the Justice Department will likely make public report its scathing reports on the U.S. attorney firings and the politicization of the Civil Rights Division sometime in September or even earlier. (I don’t have any personal knowledge of when the reports will be released.)

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

Add to that that a potential prosecution of Bradley Schlozman, or more disclosures about what the federal grand jury probing Schlozman has been uncovering, and the political damage could reach a crescendo.

At that point, even if the motives of the Bush administration in being unyielding in its executive privilege claims are indeed only because of what they view to be a high minded defense of constitutional principles (Judge Bates’ opinion aside), the politics of continuing to do so might prove not only to be harmful to John McCain’s presidency, but devastating to the Republican House and Senate candidates in the fall.

The continuous claims of executive privilege– whatever the motive for them being invoked– are going to appear more and more to the pubic part and parcel of a cover up. That is inevitable as the U.S. attorney report becomes public, and the report on the politicization of the Civil Rights Division is made public, as well as whatever else the public learns about these issues through leaks from the federal grand jury, the House Judiciary Committee’s ongoing probe, and sleuthing by folks like Josh Marshall.

When Dan Bartlett was White House counselor, he was an influential advocate– too often overruled because of advice proferred the President from Dick Cheney and other hardliners– of pre-emption and full pubic disclosure. Playing that role today is Deputy White House press secretary Tony Fratto. But Fratto and similar minded White House advisers lack the clout too often to have their sensible advice listened to.

Even though the President might think otherwise, and he is being advised to stay his course, his best hope in assisting Republican congressional candidates in the fall would be to have Karl Rove and Harriett Miers testify before Congress– and the sooner the better. As for the public welfare, the testimony would help resolve many unknowns about the firings of the U.S. attorneys and other allegations of White House misuse of the Justice Department.

For now, the executive privilege debate has been relegated to the back pages of newspapers and it might appear to be smart politics to stand tough in the face of congressional subpoenas. The dog days of summer, a Summer Olympics, a presidential election– and even other administration scandals have largely drowned out the issue of the firing of the nine U.S. attorneys.

But either this fall, or even before, all of that is almost certain to dramatically change.

And claims of executive privilege by the President of the United States to disallow his top aides to testify on Capitol Hill could prove devastating to his own political party. Republican House and Senate candidates are no doubt going to be damaged by the executive privilege claims becoming a front and center issue just prior to the election.

In the end, the President’s continuing claim of executive privilege– whether made for high minded reasons of constitutional law, obstinacy, or for political calculation– could prove to be a last unwanted legacy that George Bush leaves behind for his own political party.

Update: My friend Marcy Wheeler disagrees. (She is probably right!!)

Special prosecutor a possibility as U.S. attorney and DOJ politicization probes reach into the White House?

murrayw — Thu, 07 Aug 2008 22:20:30 +0000

I have two new stories on the Huffington Post– one this evening and one from yesterday– about the various investigations being conducted within the Department of Justice of the firings of nine U.S. attorneys and the politicization of the Department.

What is clear from both, as well as whatever scant other information we have been able to glean about what investigators are focusing on, is that they apparently are not shying away from examining the role and conduct of the White House– in either the initial White House role in firing the U.S. attorneys– or as my story tonight shows– also the role of White House officials in working with senior political Bush administration appointees to provide misleading information and testimony about the firings to Congress.

I have no inside information about whether a criminal investigation or a special prosecutor’s probe will derive out of the current probes by Justice’s Inspector General and its Office of Professional Responsibility. (I either don’t have sources that good, or that ones that might talk to me aren’t telling.)

But based on what investigators have been looking into, the possibility that a special prosecutor might be named to investigate the U.S. attorney mess might not be as remote as one might have thought.

It still appears much more unlikely than not that one would be named, but with the conduct of so many White House officials being scrutinized, the possibility for one being named for the first time appears to be a threat to the Bush administration.

As to the people and sheer numbers of White House people whose conduct is being scrutinized, here is some excerpts form my HuffPo piece tonight.

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

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

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

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

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

The Justice Department’s Inspector General (IG) and the Office of Professional Responsibility (OPR) are jointly conducting the current investigation. Both can initiate disciplinary action only against Justice Department employees and neither has prosecutorial powers.

People close to the investigation say that the investigators’ final report will not only examine the reasons and circumstances behind the firings of the nine U.S. attorneys, but efforts by senior Justice Department and White House officials to mislead the public and Congress about the firings:

“It will be as much about the cover up as about the firings,” said one former senior Justice Department interviewed at length because of his personal role in the firings. This source believes the investigators “are going to tell a narrative, and they have taken their investigation right into the White House.”

If the IG and OPR believe that there is evidence of potential criminal wrongdoing, or evidence of wrongdoing by officials outside its jurisdiction altogether, they can recommend that the Justice Department initiate a criminal investigation.

If senior administration officials or White House officials come under suspicion, a special prosecutor would likely be named.

While a central focus for investigators apparently has been the role played by aides to Rove in the Griffin matter, some witnesses to the investigation told me that they have been asked specifically about Rove’s own personal efforts.

Two former senior Justice Department officials, former Deputy Attorney General Paul McNulty and principal Associate General William Moscella, have separately provided damaging information to the two internal investigative agencies.

Both, according to sources familiar with their still-confidential testimony, said they inadvertently gave misleading testimony to Congress about the firings of the U.S. attorneys because they were misled by Rove himself in addition to other White House figures.

In his March 6, 2007, testimony to Congress, Moscella contended that all but one U.S. attorney was fired because of issues related to their performance. When specifically asked if Rove played any role in the firings, he testified: “I don’t know that he played any role.”

But one day before the congressional testimony, on March 5, 2007, McNulty and Moscella attended a strategy session at the White House in which they discussed Moscella’s testimony and how he should answer allegations that most of the U.S. attorneys were fired because of politics.

McNulty and Moscella told investigators that among the attendees were Rove and Sampson, then Gonzales’ chief of staff. Neither Rove nor Sampson, both men told investigators, told them anything about their own role in the firings even as they encouraged Moscella to say politics had nothing to do with it.

One senior Bush administration official told me that White House staffers talk about their “nightmare scenario” in which any one of the three currently internal DOJ probes “spins out of control” and leads to the appointment of a special prosecutor with broad authority.

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

Former and current Justice Department investigators caution against assuming that just because White House officials are being scrutinized, a criminal investigation or one conducted by a special prosecutor will be the likely result. They noted that the threshold for initiating a criminal probe is relatively high, and the standard for appointing a special prosecutor even higher.

They also said that cases involving false statements to Congress are considered by prosecutors one of the most difficult to prove, which in turn could lead officials to be reluctant to act in either requesting a criminal probe or pressing for a special prosecutor in the first place.

So there you have it. A special prosecutor might be a long shot. Perjury and false statements cases are difficult to make. But on the other hand, there are a lot of White House people whose conduct is being looked at, and if the Inspector General’s report is strong enough, Democrats are unlikely to pull their punches about pushing for a special prosecutor.

(To read the rest of that first story, click here.)

I’m going to update this post later tonight with some more thoughts.