New piece out on Talking Points Memo:
At least nine Bush administration officials refused to cooperate with various Justice Department investigations during the final days of the Bush presidency, according to public records and interviews with federal law enforcement officials and many of the officials and their attorneys. In addition, two U.S. senators, a congresswoman, and the chief of staff to one of them, also refused to cooperate with the same investigations.
In large part because of that noncooperation, Justice Department officials sought criminal prosecutors in at least two cases so far to take over their investigations so that they can compel the testimony of many of those officials to testify through the use of a federal grand jury.
With the stakes now escalating for both sides — the possibility of grand jury subpoenas for recalcitrant witnesses and the specter of senior government officials invoking their Fifth Amendment right to self-incrimination — it remains unclear whether and how many of them will continue to defy investigators.
In one instance, an attorney for former Bush White House chief political strategist Karl Rove recently told TPMmuckraker that even though Rove had refused to cooperate with an earlier Justice Department inquiry into the firings by the Bush administration of nine U.S. attorneys, he would now fully cooperate with a federal grand jury that has been empanelled to hear evidence in the case. But most of the other former senior White House officials, as well as members of Congress and their staffs, declined to say for this article whether they have or will cooperate with the various federal criminal investigations.
Previously, two Justice Department watchdog offices, the Inspector General and Office of Professional Responsibility conducted investigations of the firings of the U.S. attorneys and the politicization by the Bush administration of the Justice Department’s Civil Rights Division. But those two offices do not have the power to compel the testimony of witnesses outside the department itself or to initiate criminal prosecutions. The Inspector General and OPR successfully sought the naming of a criminal prosecutor to take over their probes.
In a report that the Inspector General and OPR made public last September detailing the findings of their investigation of the prosecutor firings, they asserted that their investigation was severely “hampered… because key witnesses declined to cooperate with our investigation.”
In regard to the investigation of the politicization of the Civil Rights Division, investigators sought a criminal investigation in part because four Bush administration appointees refused to cooperate with their initial probe. Two other investigations by the Inspector General and OPR of the Bush administration’s warrantless eavesdropping program are also currently underway. It is unclear in those instances whether a criminal prosecutor might eventually take over those investigations as well.
In the case of the firings of the U.S. attorneys, Nora Dannehy, the acting U.S. Attorney for Connecticut, who took over the investigation from the Inspector General and OPR, recently empanelled a federal grand jury in Washington to hear evidence in the matter.
As TPMmuckraker recently disclosed, the federal grand jury probing the firings of nine U.S. attorneys is currently zeroing in on the role played by recently retired Sen. Pete Domenici (R-NM) and former senior Bush White House officials in the firing of David Iglesias, a former U.S. attorney from New Mexico, according to legal sources familiar with the inquiry.
Last week, the Associated Press confirmed that story, reporting that the federal grand jury had subpoenaed records from Domenici and that Dannehy is also about to interview former Rove aide Scott Jennings, whose lawyer said he is cooperating to the “best of his ability.” Domenici’s attorney, K. Lee Blalock, after originally refusing to comment, and then suggesting to the New Mexico media that the TPMmuckraker report was incorrect, confirmed that the records of his client had in fact been subpoenaed. He also told the Santa Fe New Mexican earlier this month: “The investigation exists, but it is not focused on Senator Domenici to the exclusion of all others.”
But despite the fact that Domenici has already been severely criticized by two internal Justice Department watchdog agencies for refusing to answer questions from the Inspector General and OPR, Blalack is refusing to say whether he will cooperate with prosecutors conducting the current federal grand jury probe. The subpoena of Domenici’s records suggests that Domenici may not have voluntarily wanted to turn them over to authorities. Blalack declined to comment regarding this.
Besides the members of Congress, Justice’s Inspector General and OPR said that their investigation was severely hampered because of the refusal of numerous Bush White House officials involved in the firings to cooperate with their investigation.
Among those named in the report who refused to cooperate with investigators, the report said, were Former White House political adviser Karl Rove, former White House Counsel Harriet Miers, Deputy White House Counsel William Kelley, and Associate White House Counsel Richard D. Klingler.
So will the four former Bush White House officials now cooperate with Dannehy or testify before the federal grand jury if subpoenaed?
Back to a favorite subject of this blog:
Another investigation by the Justice Department’s Inspector General has focused on misconduct by J. Robert Flores, the Bush administration’s former administrator of the Justice Department’s Office of Juvenile Justice and Delinquency Prevention (OJJDP). Although little known outside the Justice Department, the OJJDP doles out more than a quarter of a billion in federal grants each year to decrease the number of juveniles in dangerous facilities and to prevent juvenile delinquency. Flores came under investigation by the Inspector General for allegedly setting aside federal laws and government regulations to award federal grants to political allies of the Bush White House and for also allegedly using federal travel funds to play golf.
During that investigation, Flores’ then-chief of staff, Michele DeKonty, took the Fifth Amendment rather than answer questions from Congress about the awarding of federal grants for political reasons, and similarly refused to be interviewed by the Justice Department’s Inspector General — leading to her immediate firing by then-Attorney General Michael Muksasey.
The Inspector General’s probe has reportedly since transformed into a criminal investigation. DeKonty’s attorney, David H. Laufman, declined to comment for this article as to whether his client has since cooperated with the criminal inquiry.
In another investigation in which Justice’s Inspector General and OPR faced uncooperative witnesses — regarding the Bush administration’s politicization of the Justice Department’s Civil Rights Division — they also sought a criminal probe to compel testimony of officials and also to determine if there was any evidence of any crimes committed.
Four officials in that probe refused to cooperate with investigators as well– at least until a criminal prosecutor took over the probe and empaneled a federal grand jury.
Update: Since I originally posted this story on TPM Muckraker, I learned that a tenth former Bush administration appointee at the Department of Justice refused to cooperate with a Justice Department inquiry of their conduct: Monica Goodling, the former counselor to Attorney General Alberto Gonzales, refused to be interviewed by both the Justice Department’s Inspector General and Office of Professional Responsibility during their joint inquiry into the firings by the Bush administration of nine U.S. attorneys. Goodling’s refusal to cooperate with the two Justice Department watchdog agencies was mentioned in their public report on the firings– a reference I missed when I wrote the TPM story.
Murray Waas, “A U.S. Attorney’s Story,” the Atlantic, April 20, 2009.
Murray Waas, “The Ninth Man Out: A Fired U.S. Attorney Tells His Story,” Huffington Post, June 4, 2007.
Murray Waas, “Administration Withheld Emails About Rove,” National Journal, May 10, 2007.]]>
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!!)]]>
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.]]>