Conyers and WH Counsel to Meet as "Early As Next Week"

By Kate Klonick - August 8, 2008, 6:48PM

Things are moving right along in the wake of the HJC v. Miers decision last week.

White House Counsel Fred Fielding has already responded to Rep. John Conyer's (D-MI) letter requesting "quick compliance" with the ruling and an answer to the subpoena issued to White House Chief of Staff Joshua Bolten for documents relating to the politicization of the Department of Justice.

Fielding (predictably) demurred, citing the recent motion for appeal, but he did comply to Conyer's other request: a meeting between the two parties to try to "work cooperatively to resolve these issues." From Fielding's letter to Chairman Conyers:

However, the fact that the Executive has noticed an appeal in this matter does not signify that we think further litigation is the exclusive path forward. . . this Administration has responded to more than 650 Congressional inquiries and investigations, and through negotiation and accommodation with Congressional committees has been able to resolve all but a very few of them. . . Toward that end, and hopefully as a prelude to meaningful discussions between us, I propose that members of our respective staffs meet as early as next week to re-commence discussing possibilities for reaching an accommodation between the Branches in this matter.

(BuZh) Foot-Dragging to the Finish: Dan Froomkin

by Dan Froomkin

Special to washingtonpost.com
Friday, August 8, 2008; 11:57 AM

President Bush often talks about how he intends to " sprint to the finish." Meanwhile, his legal team is engaged in an entirely different race against time.

A federal judge last week sternly rebuked the White House for asserting that its aides are immune from congressional oversight, ordered a former and current staffer to comply with outstanding congressional subpoenas, and strongly encouraged the White House and Congress to reach some sort of compromise.

But Bush White House officials apparently aren't interested in anything other than running out the clock. Can they postpone potentially incriminating testimony until after the November election? Can they make it all the way to Jan. 20?

Dan Eggen writes in The Washington Post: "White House Chief of Staff Joshua B. Bolten and former White House counsel Harriet E. Miers yesterday asked a federal judge to delay an order to cooperate with Congress while they appeal the ruling.

"The court filings indicate that Bolten and Miers will continue to resist subpoenas from the House Judiciary Committee as the Bush administration heads into its final months. . . .

"Lawmakers are seeking testimony from Miers and documents from Bolten related to the firings of nine U.S. attorneys in 2006. After [U.S. District Judge John D.] Bates's ruling, Democrats announced they would schedule hearings on the issue in September -- less than two months before the presidential elections."

Jesse J. Holland writes for the Associated Press: "Bates did not immediately rule on their request. . . . The judge asked House lawyers to respond by next week. . . .

"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 Bolten and Miers request said."

After last week's ruling, Senate Judiciary Committee Chairman Patrick Leahy reasserted his demand for testimony from Bolten and former chief White House political guru Karl Rove, in connection with Senate subpoenas issued in June and July of last year. He also asked White House Counsel Fred Fielding to publicly retract his finding of absolute immunity for top aides.

In a letter to Leahy yesterday, Fielding struck a defiant tone. "[W]e believe that entertaining any requests for Mr. Bolten's compliance with the Senate Judiciary Committee subpoena should await a final resolution by the courts. In regard to my August 1, 2007 letter to Mr. Rove, please be advised that, consistent with the above, the view stated therein remains the position of the Administration on the question of immunity for close Presidential advisors."

Leahy responded with this statement: "For more than a year, Karl Rove and the President's chief of staff have hidden behind baseless and unprecedented claims of 'absolute immunity' not to appear in compliance with subpoenas. They continue to withhold critical evidence and testimony and to act as if they are above the law because they work at the White House. This claim was rejected by Judge Bates after months of consideration. Still, the White House refuses to appear or cooperate. This continuing contempt of Congress is another example of the lengths to which this administration will go and how it uses government lawyers to protect its actions from scrutiny and increase its power, rather than respect the rule of law."

Also yesterday, House Judiciary Chairman John Conyers Jr. (D-Mich.) sent a letter to the Republican National Committee arguing that the ruling also applies to e-mail records the RNC has refused to turn over in connection with the U.S. attorneys probe.

On the Inside Track

The president's legal team also has to worry about an executive branch investigation that, according to investigative reporter Murray Waas, is now reaching into the White House.

Waas writes for Huffingtonpost.com: "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. . . .

"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. . . .

"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 . . . 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. . . .

"Oprison, in turn, consulted with White House Counsel Fred Fielding and Deputy White House Counsel Bill Kelley in approving the draft of the letter, according to a review of White House records undertaken in response to questions for this story."

Waas writes that "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."

IMPEACHMENT TOOLKIT: Why Pelosi MUST be removed

Court Indirectly Reminds Congress Wecht Prosecution Linked With Impeachment

By testing - August 6, 2008, 12:48PM

The court ruling against Miers and Bolten mentions the express purpose of an investigation, which the House may investigate. Miers, Bolten, and Rove are, for now, at the heart of the Judiciary Committee inquiry into selective prosecutions.

The court reminded the government and Congress the underlying subject is not narrowly gathering information or conducting an investigation, but the removal of executive officials:

Court: "Moreover, the Executive argues, the Committee cannot rest on an implied right to investigate derived from Article I because the underlying subject matter here -- removal of executive officials -- is an issue on which Congress has no authority to legislate and thus no corresponding right to investigate."

The court rejected this argument.

Selective Prosecution Against Wecht and Others Cited in Letter to Rove Counsel

After the court ruled against Miers on privilege claims, on August 1st, 2008 House Judiciary Chairman Conyers mentioned the Wecht case in a letter to Rove's attorney, whose law firm includes DoD military analysts:

Conyers: "On October 23, 2007, the Subcommittee on Crime, Terrorism, and Homeland Security and the CAL Subcommittee held a joint hearing exploring several cases of alleged selective prosecution, including the prosecutions of former Democratic Alabama Governor Don Siegelman, Wisconsin state employee Georgia Thompson, and prominent Democrat Cyril Wecht in Pittsburgh."

The letter cites three selective prosecution hearings, footnotes 11-13, page 4 of 12:

A. Allegations of Selective Prosecution: The Erosion of Public Confidence in our Federal Justice System: Joint Hearing Before the Subcomm. on Crime, Terrorism, and Homeland Security and the Subcomm. on
Commercial and Admin. Law of the H. Comm. on the Judiciary, 110th Cong. (2007).

B. Allegations of Selective Prosecution Part II: The Erosion of Public Confidence in our Federal Justice System: Joint Hearing Before the Subcomm. on Crime, Terrorism, and Homeland Security and the Subcomm. on
Commercial and Admin. Law of the H. Comm. on the Judiciary, 110th Cong. (2008).

C. The Politicization of the Justice Department and Allegations of Selective Prosecution: Hearing Before the Subcomm. on Commercial and Admin. Law of the H. Comm. on the Judiciary, 110th Cong. (2008).

The court said "Ms. Miers is not absolutely immune from congressional process and that Mr. Bolten must produce more detailed documentation concerning privilege claims"

On impeachment investigations, there is no debate, and Congress needs to ignore the President's excuses:

Court: "[T]he Executive overlooks the fact that the Supreme Court has already construed Article I in McGrain, Eastland, and other cases to find an implied right of investigation, and indeed an implied right to compel compliance with that investigative power, accruing to Congress."

Conyers' letter says his staff is preparing for Rove's September 2008 testimony.

Conyers: "Particularly in light of yesturday's ruling by Judge Bates clearly rejecting the absolute immunity claims on which Mr. Rove relied, we expect that mr. Rove will agree to appear promptly before the Committee as the subpoena requires."

The only reasonable interpretation of the court ruling is that the court intended to remind the Congress, public, and executive branch the goal of the subpoena is not to narrowly gather facts or conduct an investigation; but to make an informed decision about whether to remove or not remove Executive Branch officials for crimes.

It is absurd for the Speaker and House Members to celebrate this victory against Miers, but then not expressly state their open intent to use this information to support an impeachment investigation or impeachment.

All information and investigations about Wecht must be couched in the proper perspective. It is not narrowly a question of political power, but whether or not the Executive will or will not be examined, and, as needed, punished for that abuse of power against Wecht and the Wecht Jury.

The Executive abuse has happened and continues. The Congress, by refusing to keep all options on the table to challenge that abuse is complicit.

This language from the court shows us why the Senate needs to take a role in conducting investigations. There is nothing stopping the Senate from gathering facts, and transmitting those to the House for their consideration:

Court: "Because the Congress expires every two years, and a subpoena issued by the House remains valid only for the duration of that Congress, it would be difficult for any House subpoena dispute to fit into that two-year window once the time for appeal is factored into the equation."

An impeachment investigation must be expressly linked in Congress with these investigations into selective prosecutions and attorney firings. Until the Congress convinces the public it understands this -- with investigations in both the House and Senate -- the public must reasonably conclude the Congress is incapable of comprehending gentle remind from the Court.

The court reminds us: Congress has the power, not the right, to investigate. An impeachment investigation, as a power, is always on the table. Congress, in refusing to keep impeachment on the table, cannot (in its own mind) convince itself why it is really conducting these investigations.

Impeachment is not the same as a removal. It is a process to gather facts, make charges, and let the Senate
decide what to do. Representative Pelosi must explain why she will not let the Senate
and the House fulfill their legal obligations. Conversely, there is nothing stopping the Senate from independently investigating.

The error isn't simply the government abuse of power; but the Congressional complicity in refusing to challenge that abuse, and the absurd arguments for inaction:

Court: "Two parties cannot negotiate in good faith when one side asserts legal privileges but insists that they cannot be tested in court in the traditional manner."

Power can -- and must -- be tested during impeachment, and Pelosi is not in charge
of Congress. She is the Speaker of the House. She must lead the effort
to investigate in the House; or we must lead an effort to find a new Speaker.

Either the executive branch officials are investigated for possible removal; or Pelosi must be removed.

Congress is lost. This is, in part, a leadership problem with the Speaker. She must convince the public she understands the gentle reminder from the court -- the investigations are about a removal decision. Without her leadership she must be removed as Speaker.

Let's turn our attention to the Senate and their ongoing collusion with the President.

Administration Moves to Avert a Late Rules Rush

Hmm .. does this administration really believe it will make it to the end of its term?

Veeger

By CHARLIE SAVAGE and ROBERT PEAR

Published: May 31, 2008

WASHINGTON — The Bush administration has told federal agencies that they have until June 1 to propose any new regulations, a move intended to avoid the rush of rules issued by previous administrations on their way out the door.

May 31, 2008

Regulations in the Pipeline

Related

White House Memo From Joshua B. Bolten (pdf)

The White House has also declared that it will generally not allow agencies to issue any final regulations after Nov. 1, nearly three months before President Bush relinquishes power.

While the White House called the deadlines “simply good government,” some legal specialists said the policy would ensure that rules the administration wanted to be part of Mr. Bush’s legacy would be less subject to being overturned by his successor. Moreover, they said, the deadlines could allow the administration to avoid thorny proposals that are likely to come up in the next few months, including environmental and safety rules that have been in the regulatory pipeline for years.

Many regulations do not take effect until 60 days after they have been issued, and a new president can try to postpone or revise them. After Mr. Bush took office in 2001, for example, he froze hundreds of pending regulations issued by the administration of Bill Clinton.

Mr. Clinton, in turn, had imposed a similar moratorium on last-minute regulations issued by the first President Bush.

Many officials in government agencies said they were caught unaware by the White House’s order, issued May 9.

Some officials described a flurry of activity as they sought to get proposals approved for publication in the Federal Register by June 1.

“There are good-government reasons to do what they are doing,” said Sally Katzen, the top regulatory aide to Mr. Clinton from 1993 to 1998. “But it has the added advantage of providing an excuse for not doing something they don’t want attributed to them, and for speeding up the things they want to lock in before the next administration.”

The highly unusual directive was outlined in a memorandum that Joshua B. Bolten, the White House chief of staff, issued to agency heads without public announcement.

The government should “resist the historical tendency of administrations to increase regulatory activity in their final months,” Mr. Bolten wrote. “We must recognize that the burden imposed by new regulations is cumulative and has a significant effect on all Americans.”

Mr. Bolten told agencies that the administration would make exceptions for rules that missed the deadline in “extraordinary circumstances,” which he did not define.

Still, the June 1 deadline to start the public comment process places at risk of delay scores of potential regulations, including protections for the environment and rules on workplace safety and public health.

Agency officials said it was impossible to speed up many proposals, some of which run for hundreds of pages, with three weeks’ notice. One official said his agency was resigned to the fact that some of its work would be delayed until the next administration, while another said he was hoping that the White House would exempt some proposals that missed the June 1 deadline but that were in line with the administration’s agenda.

Rick Melberth, the director of regulatory policy for OMB Watch, a nonpartisan government watchdog group, predicted that the administration, in keeping with its longstanding skepticism about regulation, would make it a priority to complete rules that relax regulations on industrial pollution and other burdens on business.

Mr. Melberth also predicted that the administration would be willing to invoke the exception for “extraordinary circumstances” to allow rules that give businesses more flexibility than Mr. Bush’s successor might, especially if the next president is a Democrat.

“They get to define emergency,” Mr. Melberth said.

“On other things, they could do ‘Sorry, we can’t do anything on this’ ” because of the deadline, he added.

But the White House defended the order as a way to ensure that there will be adequate time for a careful and transparent review of any new regulations.

“We’re not shutting down work on important regulatory matters after June 1st,” a White House spokeswoman, Emily Lawrimore, said in an e-mail message. “We’re just making clear that we will continue to embrace the thorough and high standards of the regulatory review process as we near the end of the administration.”

Mr. Bolten’s order will affect only potential rules controlled by the Bush administration. It does not apply to independent agencies or to pending regulations with deadlines imposed by federal statutes or court orders. The memorandum also does not prevent agencies from continuing work on potential rules that are not intended to be made final until after the next president takes office.

Still, the order places at risk of delay a host of pending regulations across the federal government that agencies have not yet formally proposed, including some backed by business interests.

The construction industry, for example, has been waiting for years for the Labor Department to issue updated safeguards to prevent crane accidents like the one in New York City on Friday. Industry and labor negotiators agreed to standards in 2004, but the administration has yet to issue them. Robert Weiss, the vice president of Cranes Inc., a provider of cranes in New York and a member of the negotiating committee that reached the agreement, said that the rule “could save many lives” but that he did not know how the White House memorandum might affect its prospects.

And Jeffrey Barach, vice president of the Grocery Manufacturers Association, said he feared that the deadline could jeopardize some rules that food manufacturers want. For example, the food industry has been pressing for more stringent requirements on farms to lower the risk that the food supply might be contaminated by crops that have been genetically modified to produce pharmaceuticals. The Department of Agriculture is planning to issue such a proposed rule in June, too late for the deadline.

“If it doesn’t go through now, it will be delayed,” Mr. Barach said. “There is already, out in the field, developmental work on pharmaceutical crops, which is expected to increase. So any delay is of concern to us.”

Still, the administration’s efforts won praise from William L. Kovacs, a vice president of the United States Chamber of Commerce, who said the memorandum was a “reasonable, sensible” effort to avoid so-called midnight rules.

“This is a gracious way of leaving office,” Mr. Kovacs said. “The White House is saying, ‘We will control the regulatory process so the next administration won’t end up with a lot of regulations being challenged in court in its first days in office.’ ”

But John D. Walke, director of the clean air program at the Natural Resources Defense Council, denounced Mr. Bolten’s memorandum as intending to

“shut down regulation for the remainder of the Bush administration.”

“Until the bitter end,”

Mr. Walke said,

“the administration will pursue deregulation on behalf of polluting industries and avoid regulation that would protect public health, welfare and the environment. This memo is a codification of that agenda.”

Still, some public-interest groups expressed ambivalence about the early deadlines. Several said they welcomed further delays in some long-sought regulations because they believed the next president, Republican or Democrat, might issue rules more favorable to their policy preferences.

Mukasey rebuffs Pelosi, refuses to prosecute Bush aides for contempt

By Jason Leopold Online Journal Contributing Writer Mar 3, 2008, 00:44

As expected, Attorney General Michael Mukasey refused Friday to refer congressional contempt citations against President Bush's Chief of Staff Josh Bolten and the president's former counsel, Harriet Miers, to a federal grand jury claiming that the officials did not commit a crime when they refused to testify before Congress.

The move sets the stage for a historic legal showdown between Congress and the White House over President Bush's far-reaching claims of executive privilege, an issue that will ultimatel be decided by the courts and could have long lasting implications for future administrations.

"The department will not bring the congressional contempt citations before a grand jury or take any other action to prosecute Mr. Bolten or Ms. Miers," Mukasey wrote in a letter Friday to Democratic House Speaker Nancy Pelosi.

Pelosi swiftly responded, stating in a news release that she has given the Judiciary Committee authority to file lawsuits against Bolten and Miers in federal court.

"The American people demand that we uphold the law," Pelosi said. "As public officials, we take an oath to uphold the Constitution and protect our system of checks and balances and our civil lawsuit seeks to do just that."

Bolten and Miers were held in contempt of Congress after they failed to appear before the House Judiciary Committee last year to testify about the firings of nine United States Attorneys in late 2006. President Bush advised Bolten and Miers not to testify saying any information they may have about the US attorney firings was covered by executive privilege.

"The contempt of Congress statute was not intended to apply and could not constitutionally be applied to an executive branch official who asserts the president's claim of executive privilege," Mukasey wrote Pelosi. "Accordingly," Mukasey concluded, "the department has determined that the noncompliance by Mr. Bolten and Ms. Miers with the Judiciary Committee subpoenas did not constitute a crime."

Two weeks ago, the full House voted on a contempt of Congress citation, the first time it has done so in 25 years, and referred the matter to Mukasey for prosecution.

John Conyers, the Democratic chairman of the House Judiciary Committee, indicated at the time the House voted on the contempt charges that a lawsuit would be filed against Bolten and Miers if Mukasey refused to prosecute the charges.

“The Privilege Resolution introduced [February 13] follows the suggestion first made by former Judiciary Committee chairman James Sensenbrenner last year and authorizes the House general counsel to file a civil suit to enforce the subpoenas,"

Conyers said.

"That way, if the administration refuses to enforce the contempt finding, we can take action in the courts. . . . Although Mr. Sensenbrenner suggested a civil lawsuit as an alternative to contempt, the courts have made clear that statutory contempt must be tried first. In a lawsuit in the 1980s, when the Justice Department tried to get a civil court ruling after the House had found a former EPA administrator in contempt, the court ruled that it should 'defer to established statutory procedures' on contempt and that a civil lawsuit could be pursued only after statutory contempt remedies are exhausted. Here, a civil suit would be filed only after the administration refuses to allow statutory contempt to go forward."

On Friday, Conyers excoriated Mukasey's decision not to pursue the matter.

"Our investigation into the firing of United States Attorneys revealed an administration and a Justice Department that seemed to put politics first, and today’s decision to shelve the contempt process, in violation of a federal statute, shows that the White House will go to any lengths to keep its role in the US Attorney firings hidden," Conyers said. "In the face of such extraordinary actions, we have no choice but to proceed with a lawsuit to enforce the committee's subpoenas.”

In a recent interview, David Iglesias, the former US attorney for New Mexico who was fired on Election Day in 2006 for reasons that appeared to be based entirely on partisan politics, implored the Justice Department to allow Bolten and Miers to testify.

"Congress is exercising its legitimate oversight role in this unfinished matter," said Iglesias, who has written a book on the ordeal, "In Justice: Inside the Scandal that Rocked the Bush Administration," that is due to be published in June. "I implore the White House to do the right thing and produce Ms. Miers and Mr. Bolten to the Congress."

Iglesias said documents in the case released thus far goes far beyond the realm of circumstantial evidence and shows culpability -- and perhaps criminal behavior -- on the part of several high-level former Justice Department and White House officials who were involved in his firing and sought to cover-up their involvement. Iglesias points to a transcript of an interview with career Justice Department official David Margolis, conducted by congressional investigators in May 2007, in which Margolis said that he participated in a "brainstorming" session with other senior DOJ officials to come up with a reason to sell to the public and to lawmakers in the event that questions were raised about why Iglesias was ousted.''

In testimony before Congress last year, Iglesias said that a few weeks before the 2006 midterm elections he received telephone calls from Domenici, and the state's Republican congresswoman, Heather Wilson, inquiring about the timing of an indictment against a popular Democratic official in the state who was the target of a corruption investigation. Iglesias told Domenici and Wilson he could not discuss indictments with them. Iglesias was added to a list of US attorneys to be fired on Election Day in November 2006. The official or officials responsible for drafting the list is still unknown.

Last April, Iglesias filed a Hatch Act complaint with the White House Office of Special Counsel, alleging former White House political adviser Karl Rove and other Bush administration officials may have broken the law by orchestrating his firing. That investigation is still ongoing, but the obscure shop has hit some roadblocks. Special Counsel Scott Bloch, a Bush appointee, said he has been unable to obtain certain documents from the Justice Department (DOJ) to advance his probe into the firings.

John McKay, the former US attorney for the Western District of Washington who was also fired in late 2006 for reasons that appear to have been motivated by partisan politics, wrote in a lengthy article in the January edition of the Seattle University Law Review that Iglesias's firing stands out among the other eight federal prosecutors because it demonstrates "the very real prospect of improper interference with an ongoing criminal investigation involving public corruption and the seeking of political advantage."

"Violations of the obstruction of justice statute may have occurred and should be investigated," McKay wrote. "Even as the role of the White House remains shrouded in its claims of executive privilege, 23 certain White House employees appear to have been heavily involved in the dismissal of U.S. Attorney Iglesias. In several e-mails it appears that these officials were reacting directly to the complaints of Senator Pete Domenici (R-NM) and the ongoing investigation into public corruption in New Mexico. For example, Deputy White House Counsel Bill Kelley smugly e-mailed Gonzales’ Chief of Staff Kyle Sampson to report that Domenici’s office was 'happy as a clam' on learning of Iglesias’s ouster. Senior Counselor to the President Karl Rove bragged about Iglesias’s dismissal by proclaiming 'he’s gone' to the New Mexico Republican Party Chairman, who had previously complained to Rove about Iglesias."

McKay wrote that multiple investigations at the DOJ, which are said to be in the final stages, could result in "criminal charges" against former Attorney General Alberto Gonzales and other former DOJ officials involved in the dismissals "for impeding justice."

"The elements of a prima facie case of obstruction of justice are: (1) the existence of the judicial proceeding; (2) knowledge of or notice of the judicial proceeding; (3) acting 'corruptly' with intent to influence, obstruct or impede the proceeding in the due administration of justice; and (4) a nexus (although not necessarily one which is material) between the judicial proceeding sought to be corruptly influenced and the defendant's efforts," McKay wrote in the 32-page law review article. "The [federal] omnibus clause is a 'catchall' provision, which is broadly construed to include a wide variety of corrupt methods."

Jason Leopold is the author of the National Bestseller, "News Junkie," a memoir. Mr. Leopold is also a two-time winner of the Project Censored award, most recently, in 2007, for an investigative story related to Halliburton's work in Iran.

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