Gonzales aide will plead the Fifth

Monica Goodling is taking the Fifth.

That never looks good. Her defense lawyer cites the Libby case as reason for refusing to testify even though she has nothing to hide, and accuses Congressional Democrats of having already made up their minds about her guilt. But lines like that rarely work, because it doesn't really explain why she is unable to safely explain herself. If nothing else, the perception will be that she does have something to hide.

Who is Goodling? Gonzales senior counsel and White House liaison, who was up to her eyeballs in the prosecutor firings.

Goodling was one of five senior Justice Department aides who met with Gonzales for that Nov. 27 discussion. Department documents released Friday to Capitol Hill show she attended multiple meetings about the dismissals for months.

She also was among aides who on Feb. 5 helped Deputy Attorney General Paul McNulty prepare his testimony for a Senate hearing the next day — during which he may have given Congress incomplete or otherwise misleading information about the circumstances of the firings.

Additionally, Goodling was involved in an April 6, 2006, phone call between the Justice Department and Sen. Pete Domenici (news, bio, voting record), R-N.M., who had complained to the Bush administration and the president about David Iglesias, then the U.S. attorney in Albuquerque.

More specifically, Goodling says senior Justice officials have privately fingered Goodling as providing misleading information to McNulty prior to his testifying. Similar accusations have been made against -- and disputed by -- Kyle Sampson, Gonzales' former chief of staff. So we are facing the prospect of two senior Justice officials accusing two other senior Justice officials of lying.

When they start to eat their own, you know the end is near.

Goodling, Gonzales, politics, midtopia

Bush appointee questioned for partisan moves

It will shock everyone to know that yet another Bush appointee is being investigated for improperly intruding politics into government work.

With GSA Administrator Lurita Alexis Doan and up to 40 regional administrators on hand, J. Scott Jennings, the White House's deputy director of political affairs, gave a PowerPoint presentation on Jan. 26 of polling data about the 2006 elections.

When Jennings concluded his presentation to the GSA political appointees, Doan allegedly asked them how they could "help 'our candidates' in the next elections," according to a March 6 letter to Doan from Rep. Henry A. Waxman (D-Calif.), chairman of the House Oversight and Government Reform Committee. Waxman said in the letter that one method suggested was using "targeted public events, such as the opening of federal facilities around the country."

Is such politicking by bureaucrats with federal money illegal? Yes, although the only penalty is being fired:

On Wednesday, Doan is scheduled to appear before Waxman's committee to answer questions about the videoconference and other issues. The committee is investigating whether remarks made during the videoconference violated the Hatch Act, a federal law that restricts executive-branch employees from using their positions for political purposes. Those found in violation of the act do not face criminal penalties but can be removed from their jobs.

It's not like this is an isolated incident:

The committee is also expected to question Doan about her attempt to give a no-bid job to a friend and professional associate last summer. In addition, the committee plans to look at Waxman's charge that Doan "intervened" in a troubled technology contract with Sun Microsystems that could cost taxpayers millions more than necessary.

Doan's response is to say she's the subject of a vendetta by the department's inspector general. Possible, of course, but one of the first signs that one's defense is weak is when she refuses to address the issues raised and instead attacks her accuser.

But it goes beyond Doan, because the videoconference, you may have noted, was run by J. Scott Jennings, who works for Karl Rove. Raising the possibility that a trail of politicizing government spending could be traced back to Rove himself. So this particular probe is going to be around for a long, long time.

Should it be?

I get very tired of the fixation among certain Democrats on "getting" Rove. Such relentless focus not only detracts from the legitimacy of any real inquiry -- by suggesting it's yet one more witchhunt -- but it also detracts from more serious business and possibly blinds people to actual wrongdoing, because if it can't be tied to Rove they're less interested in following it up.

If something pops up that leads to Rove, fine. But don't waste the public's time until you've got something more than speculation and maybes.

That said, this particular probe seems justified, even if it's not a blockbuster. If Doan violated the Hatch act, she should be fired. If the trail leads to Rove, the Democrats can do cartwheels. But pursue the wrongdoing where it leads; don't get off track because of a desire to finally nail Rove's hide to the wall.

Doan, ethics, politics, midtopia

Why logic classes should be required

When it comes to Alberto Gonzales, President Bush has thus far refused to cashier him. Some defenders of that decision have made the argument that giving Gonzales to Bush's critics would simply embolden them, so they must be resisted -- ignoring the fact that Gonzales is doing more damage to Bush's cause by remaining than could ever be caused by his resignation, a point made by Captain Ed in a link in the post below this one.

Now David Schraub sees a similar logic applied to Gitmo. The summary: While the president thinks Gitmo is hampering our broader war effort and ought to be shut down, he is reluctant to do so because that would mean moving the prisoners stateside where they would enjoy greater legal rights. So apparently we'll just have to keep hampering our own war effort.

Now one can be charitable and say the president means that shutting Gitmo would hamper our war effort even more -- except that's not what he said, and it makes little sense in context. Gitmo, on balance, is either helping or hurting our cause. If it's helping, then he should support it. If it's hurting, then it should be shut down. He said it's hurting. So that leaves one of two choices:

1. He's simply concerned about PR rather than the underlying issues, in which case what he's really saying is "I'm getting hammered for Gitmo, and I'd love to shut it down as soon as I can recreate it somewhere else."

2. He's willing to "hamper our war effort", if necessary, to avoid giving the Gitmo prisoners any real legal rights. Which, if true, demands the question Schraub asks: "Why?"

Personally, I think it's #1 more than #2. He's not truly apologetic for Gitmo; I don't think he respects the civil liberties questions involved, or how damaging such an operation can be in a conflict where global perceptions are a major part of the battleground, and where we claim to represent the forces of freedom, law and goodness.

Gitmo, Bush, politics, midtopia

Gonzales taking even more fire

Alberto Gonzales is now getting fire from every side.

First, another broadside from the conservative Captain Ed:

Is there any other manner in which the Department of Justice can look any more untruthful and deceptive? Apparently so, because the Justice spokesperson now wants to argue about the meaning of the word "involved". Alberto Gonzales told the press on March 13 that he was "not involved in any discussions about what was going on" regarding the terminations. The description adopted by his supporters was that Gonzales acts as a CEO, delegating authority to his staffers and allowing them to act independently, Now we have Tasia Scolinos attempting to sell the notion that the definition of "not involved in any discussions" somehow includes attending the meeting where the decisions were made -- but not absorbing any of the details of the process.

Have we had enough yet? I understand the argument that if we allow the Democrats to bounce Gonzales, they'll just aim for more, but Gonzales made himself the target here with what looks like blatant deception. I don't think we do ourselves any good by defending the serially changing stories coming out of Gonzales' inept administration at Justice. One cannot support an Attorney General who misleads Congress, allows his staffers to mislead Congress, and deceives the American people, regardless of whether an R or a D follows his name or the majority control of Congress....

At this point, the notion that Bush has to retain Gonzales to protect himself and Republicans in general is starting to become absurd. Gonzales inflicted most of this damage on the administration himself, and the longer he remains, the more damage he will do. As Jonah said, it's hard to find a worse example of self-inflicted damage outside of circus tents.

Ooh! A double, at least.

Next up, old hand William F. Buckley:

Of one thing Mr. Bush is manifestly guilty. It is the criminal (in the metaphorical sense) mismanagement of the whole business of the U.S. attorneys. The fault is not personal; it was probably the attorney general and other advisers of the president who took so many clumsy steps. But Mr. Bush's stress on his rights invites a coordinate stress on his responsibilities. "These attorneys," he said, "serve at my pleasure." Right. But presidential pleasures have to rest on defensible grounds.

A nice twist of the knife: it's irresponsible of the president to retain such an incompetent AG. Call it a blooper single over second base; Captain Ed makes it to third.

Up steps clean-up batter Kevin Drum, who lists nine reasons to be skeptical of the AG's account. A selection:

1. Prior to the purge, DOJ lawyers quietly inserted a clause in the Patriot Act that allowed them to appoint new U.S. Attorneys without Senate approval. Why did they do this when their own emails show that the existing system hadn't caused them any problems?

4. DOJ initially lied when asked why they were fired, chalking it up to "performance reasons" even though five of the eight had previously received reviews placing them in the top third of all USAs. Why lie if there's an innocent explanation?

9. DOJ has now had weeks to come up with a plausible story for the firings and they still haven't. This is truly remarkable. Why not just tell the truth? That doesn't take weeks to concoct.

Except for #9, none of these things by themselves would generate much suspicion. Put them all together, though, and you have to be a real dead-end loyalist to believe there's nothing fishy going on. Throw in #9 and even the dead-enders ought to be scratching their chins.

Here's the pitch.... here's the swing.... CRAAACKK!! It's high and deep to centerfield. Looks like an easy out.... NO!! The Bush outfielder bobbles it! Captain Ed crosses the plate! Buckley's rounding third! Drum's going for second! Here's the throw to second.... it's in the dirt! The second baseman misjudges the bounce and is knocked cold! Buckley scores.... Drum scrambles up and races for third as the shortstop chases down the errant ball. He grabs it, turns, throws wildly.... misses third base by a mile! The ball sails into the stand, and Drum walks casually home!

And there you have it, the arc of this scandal. What should have been an easy out for the administration is turning into a home run for its critics. If the administration turns out to have actually done something illegal (other than lying to Congress, I mean), it's hard to imagine that revelation doing any more damage than the parade of bumbling, lies and half-truths that we've been witness to so far.

Perhaps you think Gonzales hasn't done anything wrong. But it's much harder to argue that he doesn't deserve to be fired.

Gonzales, politics, midtopia

Chavez moves to nationalize 815,000 acres

And thus the socialist revolution proceeds apace.

Venezuela's government has seized more than 330,000 hectares (815,450 acres) of land to redistribute them under an agrarian reform programme.

President Hugo Chavez said 16 farms - which he described as large and unproductive - had been expropriated.

Taken in isolation, land seizures are not a good thing. In a stable, law-abiding society, land rights should be nearly inviolable, because the ability to acquire and keep property is one of the fundamental building blocks of wealth and thus opportunity. If land can be seized arbitrarily, then people have few rights that cannot be violated.

But the history of Latin America complicates things, because the "thou shalt not nationalize private land" commandment assumes that the land was fairly acquired in the first place. And largely, it was not. In Venezuela, 97 percent of the arable land is owned by 10 percent of the population. And that's not even the worst ratio. In neighboring Columbia, half the land is owned by 0.3 percent of the population; overall, 75 percent of the land is owned by just 2.6 percent of the population.

Those ratios did not arise from free and fair market transactions; they are relics of empire and dictatorship. So it's myopic to condemn land seizures in isolation, without addressing the extreme imbalances that underlie current land ownership.

Given a set of really bad options, a well-planned system of land reform -- one that defines "underused" land objectively and fairly compensates the current owners of the land, however they came to own it -- might be the most reasonable choice. In addition, any such program must contain a sunset provision, under which the program expires once the ownership ratio reaches a certain level, or a specified amount of land has been seized.

Of course, that assumes that Chavez' plan is either well-planned, well-run or fair -- something I'm not willing to bet money on. But in such a case it is Chavez, not land reform per se, that is the problem.

land reform, Chavez, Venezuela, politics, midtopia

New e-mails contradict Gonzales

A new batch of Justice Department e-mails released Friday both fill in the "gap" in the previous releases -- and suggest even more starkly that Gonzales lied about his involvement in the prosecutor firings.

Attorney General Alberto R. Gonzales and senior advisers discussed the plan to remove seven United States attorneys at a meeting last Nov. 27, 10 days before the dismissals were carried out, according to a Justice Department calendar entry disclosed Friday.

The previously undisclosed meeting appeared to contradict Mr. Gonzales’s previous statements about his knowledge of the dismissals. He said at a news conference on March 13 that he had not participated in any discussions about the removals, but knew in general that his aides were working on personnel changes involving United States attorneys.

Either Gonzales lied, or he is the most inept and unluckiest attorney general in U.S. history. Because consider how this looks: Gonzales denies involvement in such a major matter. The department releases a flood of e-mails to bolster its case -- but with an 18-day gap. When some e-mails from that gap are finally released, they show that Gonzales was, in fact, involved in the firings.

Could he simply have forgotten the meeting? Yes. Could the "gap" have been unintentional? Yes. But when you put it all together, it looks like the AG lied and then tried to cover it up.

Gonzales, politics, midtopia

Largo city manager fired

The city of Largo, Fla., decided to fire the city manager they suspended after it became public that he was seeking a sex-change operation.

Most of 70 speakers at the six-hour meeting supported Stanton, but the council fired him anyway. They repeated that they were firing him not because he wanted the operation, but because they felt his announcement of his plans had undermined his ability to lead the city staff.

Maybe they're being truthful about that, although I'll note two things: perhaps they should give him a chance to lead the city for a while after coming out before concluding he couldn't; and the practical effect is the same: come out as a transgender, lose your job.

Weather prediction: 70% chance of a lawsuit.

gay rights, Largo, politics, midtopia

Former administration official pleads guilty

Another official goes down in the Abramoff scandal.

Former Deputy Interior Secretary J. Steven Griles pleaded guilty Friday to obstruction of justice, becoming the ninth person and the highest-ranking Bush administration official convicted in the Jack Abramoff lobbying scandal.

The former No. 2 official in the Interior Department admitted in federal court that he lied to Senate investigators about his relationship with convicted lobbyist Abramoff, who repeatedly sought Griles' intervention at the agency on behalf of Abramoff's Indian tribal clients.

Griles pleaded guilty to a felony charge for testifying falsely before the Senate Indian Affairs Committee on Nov. 2, 2005, and during an earlier deposition with the panel's investigators on October 20, 2005.

Lying to Congress: not a good idea.

As part of the plea deal, Griles probably gets a 10-month sentence and prosecutors dropped allegations that he improperly helped Abramoff or personally benefited from the relationship.

The underlying charge is relatively minor -- he denied he had an unusually close relationship with Abramoff, even though they had been introduced by his girlfriend. As often happens, the cover up is worse than the crime. Nonetheless, he qualifies for the Hall of Shame.

June 26 update: Griles draws 10 months in prison and a $30,000 fine.

Abramoff, Griles, politics, midtopia

Life under a gag order

If you want to get your inner civil libertarian riled, read on.

We know, of course, that the FBI has been abusing its authority to seek information without a warrant through National Security letters.

What you may not know is that keeping such abuse secret is made much easier by another FBI power: the gag order. If you're served an NSL you're not allowed to tell anyone -- even if the request is obviously improper. Even after the FBI has abandoned efforts to get the information from you, you cannot tell anyone they tried.

Here, then, is one person's story about living under an NSL gag order.

Three years ago, I received a national security letter (NSL) in my capacity as the president of a small Internet access and consulting business. The letter ordered me to provide sensitive information about one of my clients. There was no indication that a judge had reviewed or approved the letter, and it turned out that none had. The letter came with a gag provision that prohibited me from telling anyone, including my client, that the FBI was seeking this information. Based on the context of the demand -- a context that the FBI still won't let me discuss publicly -- I suspected that the FBI was abusing its power and that the letter sought information to which the FBI was not entitled.

Rather than turn over the information, I contacted lawyers at the American Civil Liberties Union, and in April 2004 I filed a lawsuit challenging the constitutionality of the NSL power. I never released the information the FBI sought, and last November the FBI decided that it no longer needs the information anyway. But the FBI still hasn't abandoned the gag order that prevents me from disclosing my experience and concerns with the law.

In other words, the people with direct experience with NSLs are prohibited from using that experience to challenge the FBI's power. A practical consequence of that is that debate over that power is truncated:

Without the gag orders issued on recipients of the letters, it is doubtful that the FBI would have been able to abuse the NSL power the way that it did. Some recipients would have spoken out about perceived abuses, and the FBI's actions would have been subject to some degree of public scrutiny....

I found it particularly difficult to be silent about my concerns while Congress was debating the reauthorization of the Patriot Act in 2005 and early 2006. If I hadn't been under a gag order, I would have contacted members of Congress to discuss my experiences and to advocate changes in the law.

Here's what it's like to have a gag order imposed:

Under the threat of criminal prosecution, I must hide all aspects of my involvement in the case -- including the mere fact that I received an NSL -- from my colleagues, my family and my friends. When I meet with my attorneys I cannot tell my girlfriend where I am going or where I have been. I hide any papers related to the case in a place where she will not look. When clients and friends ask me whether I am the one challenging the constitutionality of the NSL statute, I have no choice but to look them in the eye and lie.

There are legitimate security concerns related to NSLs. Notably, you don't want to tip off a suspect to the existence of an active investigation, particularly the information sought and why. But those concerns can be addressed more narrowly. A broad gag order is the equivalent of using a sledgehammer where a scalpel is needed, and it does more to protect the FBI from scrutiny than it does to protect national security.

Congress has warned the FBI that if they don't clean up their act, they will lose the ability to use NSLs. But Congress needs to do more than that: they need to revise the gag order provisions to protect national security in a way less damaging to democratic debate and less violative of civil liberties.

politics, midtopia

Krauthammer: Gonzales must go

Another conservative, columnist Charles Krauthammer, says it's time for Alberto Gonzales to resign.

Alberto Gonzales has to go. I say this with no pleasure -- he's a decent and honorable man -- and without the slightest expectation that his departure will blunt the Democratic assault on the Bush administration over the firing of eight U.S. attorneys. In fact, it will probably inflame their blood lust, which is why the president might want to hang on to Gonzales at least through this crisis. That might be tactically wise. But in time, and the sooner the better, Gonzales must resign.

It's not a question of probity but of competence. Gonzales has allowed a scandal to be created where there was none. That is quite an achievement. He had a two-foot putt and he muffed it.

He then devotes most of the column to arguing that the prosecutor scandal isn't, in fact, a scandal. Fair enough; what we know now is only enough to raise questions, not prove bad behavior. But even Krauthammer adds a qualifier: "Yet."

Which is why an investigation is needed. One reason this case deserves scrutiny, I believe, even without incontrovertible proof of wrongdoing is that the Bush administration long ago lost any right to claim the benefit of the doubt in situations like this. From their handling of prewar intelligence to the NSA eavesdropping program to the politicization of science to National Security Letters to stupid stuff like lying about whether and why Cheney was visiting the hospital. Time and again the administration has said "Trust us", and time again they've been shown to be undeserving of that trust.

So perhaps this is just a case of incompetence on the part of an underqualified Cabinet member. Lord knows that wouldn't be the first example of such in this administration. But let's check, just to be sure.

Gonzales, politics, midtopia

How's the surge going?

With the House having passed an Iraq withdrawal timetable and the Senate hoping to follow suit, the big question becomes "are such timetables a good idea?" And the answer to that, in turn, depends mightly on how the Iraq "surge" is going.

Time has a broad assessment, so we'll start there.

First, it seems clear that if anyone can make it work, Gen. David Petraeus can. I've been impressed by his energy, tactics and professionalism. He knows what needs to be done and how to do it. The former isn't particularly impressive: the need has been obvious for a long time. But execution is a different matter, and he has shown to be highly capable in that department, from the actual deployment of security forces in Baghdad to collateral operations like those conducted in neighboring areas to catch insurgents fleeing Baghdad.

Some simple measures -- like banning car and truck traffic during business hours -- has helped cut back on car bombings in crowded places. Mostly, though, it's the "hold" part of "clear and hold" that has (unsurprisingly) proven quite effective.

But such moves don't succeed in isolation. Things have gone smoothly in large part because the Iraqi government continues to act serious about supporting nonsectarian security measures -- such as the recent arrest of former Mahdi Army members -- and has helped persuade the Mahdi Army itself to stay off the streets.

The numerical results have been promising, but with a couple of notes of caution. A week or so ago, military officials reported that killings in Baghdad were down significantly. But even as the crackdown expands, the number of deaths has been creeping back up. Yesterday 33 bodies turned up in Baghdad, uncomfortably close to pre-surge numbers.

Plus there's one key question: Can we trust the numbers? Because we've been through this once before, and it turned out they weren't counting bombing deaths.

So the answer remains "we don't know yet." Early signs are encouraging, but then they often are. Even Petraeus notes that it will take months -- until mid or late summer -- before we know whether the surge is working. And after that comes the really big question: can we sustain whatever gains we make? What happens when its time for the U.S. troops to go home?

All we can do is be patient. And it's a patience that is unaffected by the proposed Congressional timetables, because they won't take effect until long after we have a verdict on the surge -- the operation that will really determine the future of our mission in Iraq.

Petraeus, surge, Iraq, politics, midtopia

House passes Iraq timetable

By a razor-thin margin -- 218-212 -- the House of Representatives passed a war funding bill that includes a hard deadline to end combat operations in Iraq: September 2008.

I've already opined that the timetable is reasonable, giving Bush a year and a half to show progress. And even if the deadlines were enforced, it's not like we would abandon Iraq as of then. We would simply shift from doing front-line work ourselves to providing aid and training for the Iraqi military. And if Bush does manage to show progress, I'm sure he would find that the deadline, to quote Captain Barbossa, "is more of what you might call guidelines than actual rules." What Congress passeth, Congress can changeth.

Bush, however, exploded.

Just over an hour later, an angry Bush accused Democrats of staging nothing more than political theater and said that if the spending bill is not approved and signed into law by April 15, troops and their families "will face significant disruptions."...

"A narrow majority in the House of Representatives abdicated its responsibility by passing a war spending bill that has no chance of becoming law and brings us no closer to getting the troops the resources they need to do their job.

"These Democrats believe that the longer they can delay funding for our troops, the more likely they are to force me to accept restrictions on our commanders, an artificial timetable for withdrawal and their pet spending projects. This is not going to happen."

Bush's rhetoric is self-serving, of course: Whatever you think of the wisdom of its chosen course, this is Congress asserting its responsibility, not abdicating it. Abdication is what the Republican-led Congress engaged in for three years.

And if funding the war is so important, he can simply sign the bill. The money is there, and the restrictions don't kick in for quite a while. Apparently the funding isn't critical enough to keep him from vetoing it.

As political theater, this cannot be beat. As a practical matter, though, the deadline is probably a goner. The first hurdle is the Senate, where it will have trouble passing. If the Senate passes a bill lacking the timetable, that will have to be resolved in conference committee. If the deadline survives that (and the conference version passes the Senate), it faces a likely Bush veto, which will almost certainly be sustained.

At that point -- or, more likely, much earlier -- Bush and Congress will have to sit down and hammer out what sort of funding bill both sides will accept. The politics are uncertain, because both sides can accuse the other of holding our troops hostage to politics. My gut says Bush will win that battle of perception by claiming the timetable provision does not belong in the funding bill. But Congress can argue that the timetable is directly relevant to the funding.

Further, they could make the point that the timetable is a limitation on Bush, so how much sense does it make to pass it as a standalone measure that Bush will simply veto? Attaching it to the funding bill is the only way Congress can exert meaningful pressure on the president.

Problem is, that would mean Congress is using a tactical argument to try to counter a moral and strategic one. And critics could plausibly point out that if Congress cannot muster enough votes to force the timetable on Bush straight up, perhaps it is still too early to be doing such forcing.

I don't buy that particular logic but I'm still somewhat in the latter camp, mostly because I believe we need to give the "surge" time to show results before we start imposing withdrawal deadlines. More on that in my next post.

Iraq, politics, midtopia

History of fired U.S. attorneys

I'm probably way behind the curve on this, but I came across a great resource today: A Congressional Research Service report on the history of firing U.S. attorneys.

(it's a summary page; there's a link you can click on for a pdf of the report itself.)

Between 1981 and 2006, 54 of 486 U.S. attorneys left before their term was up (not counting those fired upon a change of administration).

Most left for obvious reasons: 18 became judges, 6 took other executive branch jobs, 4 ran for office, 2 left to join state government, 1 died, and 15 returned to private practice.

That leaves 8. They are:

William Kennedy, fired by Reagan in 1982 for charging that the Justice Department and CIA were blocking one of his prosecutions.

J. William Petro, fired by Reagan in 1984 for leaking information on a pending indictment to the subject of the indictment.

Frank McNamara, resigned in 1989 while the subject of a probe over whether he lied when he accused his predecessor of using marijuana.

Larry Colleton, Kendall Coffey, Two Clinton attorneys who I've discussed previously. Colleton assaulted a reporter; Coffey bit a topless dancer.

Roscoe Conklin Howard, a Bush appointee, resigned in March 2004. No reason given.

Thomas DiBiagio, a Bush appointee, resigned in 2005. No reason given, but interestingly enough he was publicly rebuked in 2004 for reportedly urging his staff to produce three "front page" indictments of elected officials before the 2004 elections.

Humberto Garcia, a Bush appointee, resigned in January. No reason given.

This count does not include U.S. attorneys who served a full four-year term but were not reappointed in a president's second term.

Gonzales, politics, midtopia

Thursday Gonzales roundup

Subpoena fight: As expected, the Senate authorized subpoenas for White House aides in the prosecutor scandal. But Congress made no immediate move to actually issue them. First comes negotiations to see if a deal can be reached to avoid a legal battle, a process that could take days.

Gonzales lied? We have what appears to be Gonzales caught in a lie about his authority to appoint interim prosecutors. ThinkProgress thought they had him nailed a week or so ago, when they posted a transcript of Gonzales testifying that he never intended to use the power (see first update in link). At the time, it was simply juxtaposed against the obvious fact that he had used it. Now an e-mail exchange involving Kyle Sampson, Gonzales' former chief of staff, indicates that not only did he plan to use it, but the department hoped to stall long enough that the appointments would last until the end of Bush's term.

In response to a question about what to do about the confirmation of one replacement, Tim Griffin, Sampson wrote:

I think we should gum this to death: ask the Senators to give Tim a chance, meet with him, give him some time in office to see how he performs, etc. If they ultimately say "no never" (and the longer we can forestall that the better), then we can tell them we'll look for other candidates, ask them for recommendations, evaluate the recommendations, interview their candidates, and otherwise run out the clock. All of this should be done in "good faith," of course.

Gotta love the use of "good faith" in this context.

At the end of the e-mail, you may have noticed this line:

I'm not 100% 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.

While interesting, and proof positive of White House involvement, this doesn't peg the outrage meter very high. Tim Griffin is the one appointment that the administration has acknowledged was made for political reasons, and there doesn't appear to be any additional hanky-panky with that one.

Old allegations are new again: In the category of "piling on", a retired Justice Department lawyer, Sharon Eubanks, has renewed allegations of political interference in a 2005 tobacco case. On the one hand, there was an uproar and an investigation of her claims at the time by the Justice Department's internal watchdog, and it concluded that the input from political appointees was not intended to weaken the case, as Eubanks claims. On the other hand, Eubanks calls that investigation a whitewash and says she was never asked about details of her claims. NPR had an interview with her today; give it a listen.

Trusted friend: NPR also had a good piece on how Gonzales became such a good Bush family friend: By helping a young Bush get out of a jury-duty assignment that would have required him admitting to two alcohol-related arrests -- something that could have derailed his political ambitions.

Intriguing, indeed: Finally, an interesting exchange yesterday at the end of the daily White House press briefing. Interesting enough to quote in full:

Q Just to follow up on one point earlier, yesterday the President said, and you've repeated, that the principle at stake here with executive privilege is that the President needs to get candid advice from his advisors, right?

MR. SNOW: What the President has talked about is privileged communications with close staff members, that is correct.

Q But earlier you were saying that, when I asked about, well, was the President informed of this decision, did the President sign off on U.S. attorneys being fired, you said the President has no recollection of being informed of all this.

MR. SNOW: Correct.

Q So were his advisors really advising him on this? Is this really privileged communication involving the President and his advisors, if the President wasn't looped in, you're saying, on this decision? So it was other people --

MR. SNOW: Well, that also falls into the intriguing question category.

It sure does. If the president wasn't involved, it makes an executive privilege claim hard to sustain.

Update: New e-mails make it even harder to avoid the conclusion that Gonzales lied to Congress about his intentions regarding the "interim U.S. attorney" power.

Eubanks, Gonzales, politics, midtopia

Senate adds Iraq deadline to spending bill

The Senate Appropriations Committee is expected to approve a $122 billion appropriations bill for Iraq and Afghanistan that includes language setting March 2008 as a goal for ending combat operations in Iraq. That sets up a major floor battle over passage of the legislation.

The House will vote on a similar bill by Friday.

Passage is by no means certain. And Democrats are building support through a time-honored method: bribery.

Congress has loaded up President Bush's request for "emergency" spending on the Iraq war with more than $20 billion in "pork" for members' districts.

Money for peanut storage in Georgia, spinach growers in California, menhaden in the Atlantic Ocean and even more office space for the lawmakers themselves is included in what has ballooned into a $124 billion war bill.

"This emergency supplemental bill has more ornaments hanging over our many branches of government than the White House Christmas tree," Rep. Jerry Lewis, R-Calif., said.

While I understand the practical aspect of such largesse -- and while the Democrats promised only to expose pork, not totally eliminate it -- I'm disappointed. I'm especially disappointed by the amount. Surely it doesn't require $20 billion to buy a few dozen votes. If you're going to spend my money on bribes, at least get value for the dollar.

It may all be moot anyway. If the deadline stays in the bill expect Bush to veto it, since it contains a direct challenge to his war authority. And expect that veto to be sustained. We'll then get a whole new squabble over who is playing politics with our soldiers' lives while they try to put together a replacement bill that Bush will sign. It will be a matter of who blinks first: Bush, who needs the money to remain in Iraq, or Congress, which doesn't want to be seen as undercutting the troops. I'd say "expect a compromise", but I'm not sure what that compromise would be.

If it comes to a confrontation, though, expect Bush to win unless Congress is prepared to shut down the Iraq adventure right now, today. They're not, they won't, and Bush will get his money without strings attached. This time.


pork, budget, Iraq, politics, midtopia

Where there's smoke, is there fire?

Let's take step back from the Gonzales case for a moment and establish some context for the next few days.

Is there a real scandal here? If you consider inept responses to questions a scandal, then yes; the Bush administration often makes the Keystone Kops look like Delta Force commandos. But if you're talking actual wrongdoing then there's a lot of smoke, but no actual fire as of yet.

Admittedly, the smoke is pretty thick. Eight prosecutors were fired midterm, an unusual circumstance in and of itself. Justice said all were for performance reasons. Then they acknowledged that at least one was pushed out simply to make room for a friend of Rove's. Then we discovered that most of them had good performance reviews prior to being fired.

Justice claimed the White House wasn't involved; then we found out it not only was involved, but apparently the whole idea originated with Harriet Miers. Then the White House backed off on that, too. And then we found out Rove was checking in on it.

The firings came amid expressed concerns about political loyalty, and timed remarkably well with either pending investigations of Republicans or a failure to bring charges against Democrats before the November election.

The Justice Department released 3,000 e-mails to bolster its case -- with a notable 18-day gap right in the middle.

All of which suggests at least the possibility of excessive administration interference with the operations of the U.S. attorneys, who though appointed by the president are thereafter supposed to serve the law, not conduct partisan vendettas.

So while we don't know if there is a fire under the smoke, that much smoke provides more than enough basis for investigation.

Does Congress have enough evidence to start subpoenaing senior administration members? Whatever happened to probable cause and "innocent until proven guilty"?

It's true that Congress can't just drag people in for questioning for no reason. Fishing expeditions aren't allowed; they need to be pursuing a legitimate government purpose and a have a specific, defensible reason for subpoenaing a given individual.

That said, I think probable cause is pretty much covered by everything I wrote above. And "innocent until proven guilty" only applies to conviction and punishment, not the investigative or trial phase.

Isn't this a criminal investigation?No; Congress doesn't have that power. This is Congress exercising its oversight powers. As the elected representatives of the people, Congress has broad powers to oversee the functioning of the other two branches. Executive agencies are created and funded by Congress, which retains legal authority over them. The president operates them for Congress. He has some of his own inviolable constitutional powers, but mostly his job is to carry out the laws Congress passes, in the way Congress tells him to.

Similarly, Congress has complete control over the size and function of the Judiciary, except for the Supreme Court -- and Congress has some control over that, too, since it sets the Court's budget, determines the number of Justices and must confirm Court nominees.

So Congress has all sorts of rights to investigate how well the executive branch is carrying out Congress' wishes. This isn't the police looking into the affairs of a private citizen; it's the board of directors looking into the behavior of the company's CEO.

I hear Clinton fired some prosecutors mid-term. If you want to call it that. Apparently three Clinton prosecutors left before their terms were up. Larry Colleton resigned after he was videotaped grapping a reporter by the throat; Kendall Coffey resigned after being accused of biting a topless dancer; and Michael Yamaguchi simply couldn't get along with local judges or the Justice Department. Clinton replaced him with a Republican, Robert Mueller -- Bush the Elder's chief of the criminal justice division and the current FBI director.

That's it. Otherwise Clinton left the prosecutors alone.

So what we have here is an oversight inquiry into possible improper conduct, fueled by partisan distrust, the unusual nature of the firings and the awe-inspiringly bad performance of the White House in response to initial questions about it.

Grab some popcorn, crack a beer, and pull up a chair to watch the fireworks.

Gonzales, politics, midtopia

Prepare for battle

A House subcommittee today authorized Judiciary Committee Chairman John Conyers to subpoena five senior administration officials in the fired prosecutors case: Karl Rove, Harriet Miers, former Gonzales aide Kyle Sampson, deputy White House counsel William Kelley and J. Scott Jennings, a special assistant to the president.

Tomorrow the Senate is expected to give similar authority to Sen. Patrick Leahy, chairman of the Senate Judiciary Committee.

In response, the White House said the offer it made Tuesday -- private interviews, no transcripts and not under oath -- was final. "If they issue subpoenas, the offer is withdrawn," said press secretary Tony Snow.

One interesting aspect is the behavior of Congressional Republicans:

Congressional Republicans do not want to surrender what they see as the institutional rights of Congress to seek testimony even though they are allied with the White House.

In addition, many are unhappy with the way Attorney General Alberto R. Gonzales and his staff handled the dismissals and the resulting furor.

“The reason Republicans are not coming over the hill like the cavalry is the best defense you can give is it was poorly handled,” said Senator Lindsey Graham, Republican of South Carolina, a member of the Judiciary Committee. “That is as good as it gets."

And, of course, there's this:

Some Congressional Republicans said privately that the administration’s proposal might be a tough sell because many Americans would question why the officials were unwilling to talk under oath.

Ya think?

To flog a military metaphor, I get the feeling that the Republican infantry would like to support Lieutenant Bush, but get tired of him choosing poor defensive terrain, failing to position the machine guns to provide good lanes of fire and sending out Sleepy the Dwarf for picket duty. They're loyal, but not suicidal.

There's danger for the Democrats, too. If they overplay their hand they could be seen as going after Bush for purely partisan reasons, and doing so while all but ignoring the situation in Iraq.

Given all the potential pitfalls, a lot of observers still think a compromise will be reached, and that the bluster on both sides are standard negotiating tactics. Could be; that's what rational actors would do. But as economists have discovered to the detriment of their more orderly economic models, people don't always act rationally. Bush is notably stubborn, the Democrats may think they've got a real scandal here, and both sides may think they'll win a legal battle if it comes to that. I still expect Bush to be the one to cave, going simply on the strength of his legal case. But I'm not betting money on it.

Gonzales, politics, midtopia

David Iglesias: Why I was fired

David Iglesias, one of the fired U.S. attorneys, discusses what happened to him in an opinion piece published in today's New York Times.

Depending on your political persuasion, this is either another nail in Gonzales' coffin or evidence that David Iglesias is the Joe Wilson of 2006.

Politics entered my life with two phone calls that I received last fall, just before the November election. One came from Representative Heather Wilson and the other from Senator Domenici, both Republicans from my state, New Mexico.

Ms. Wilson asked me about sealed indictments pertaining to a politically charged corruption case widely reported in the news media involving local Democrats. Her question instantly put me on guard. Prosecutors may not legally talk about indictments, so I was evasive. Shortly after speaking to Ms. Wilson, I received a call from Senator Domenici at my home. The senator wanted to know whether I was going to file corruption charges — the cases Ms. Wilson had been asking about — before November. When I told him that I didn’t think so, he said, “I am very sorry to hear that,” and the line went dead.

A few weeks after those phone calls, my name was added to a list of United States attorneys who would be asked to resign — even though I had excellent office evaluations, the biggest political corruption prosecutions in New Mexico history, a record number of overall prosecutions and a 95 percent conviction rate. (In one of the documents released this week, I was deemed a “diverse up and comer” in 2004. Two years later I was asked to resign with no reasons given.)

Regarding the voter fraud case in question, part of the "fired for cause" argument put forth by the Justice Department:

As this story has unfolded these last few weeks, much has been made of my decision to not prosecute alleged voter fraud in New Mexico. Without the benefit of reviewing evidence gleaned from F.B.I. investigative reports, party officials in my state have said that I should have begun a prosecution. What the critics, who don’t have any experience as prosecutors, have asserted is reprehensible — namely that I should have proceeded without having proof beyond a reasonable doubt. The public has a right to believe that prosecution decisions are made on legal, not political, grounds.

What’s more, their narrative has largely ignored that I was one of just two United States attorneys in the country to create a voter-fraud task force in 2004. Mine was bipartisan, and it included state and local law enforcement and election officials.

After reviewing more than 100 complaints of voter fraud, I felt there was one possible case that should be prosecuted federally. I worked with the F.B.I. and the Justice Department’s public integrity section. As much as I wanted to prosecute the case, I could not overcome evidentiary problems. The Justice Department and the F.B.I. did not disagree with my decision in the end not to prosecute.

He doesn't need proof beyond a reasonable doubt to proceed with an investigation, but he does need a reasonable belief that he can win a case based on that standard. Pursuing a case that he believed couldn't be successfully prosecuted would have been a waste of limited resources at best, prosecutorial misconduct at worst.

This is just Iglesias' version of events, of course, and he can be expected to be a little self-justifying. As well, there can be differences of opinion over what constitutes sufficient evidence to bring a case. But thus far we haven't seen anything from the Justice Department to contradict him.

If the timing of Iglesias' firing turns out to be more than a coincidence, there's a real scandal brewing at the bottom of this political contratemps.

Gonzales, Iglesias, politics, midtopia

News of the weird

A few small things to finish off the night:

Animal rights activists want baby polar bear killed.

When Knut was born in December, his mother ignored him and his brother, who died. Zoo officials intervened, choosing to raise the cub themselves.

But Albrecht and other activists fret that it is inappropriate for a predator, known for its fierceness and ability to fend for itself in the wild, to be snuggled, bottle-fed and made into a commodity by zookeepers. They argue that current treatment of the cub is inhumane and could cause him future difficulties interacting with fellow polar bears.

So off him? Yeah, that makes sense.

And a foot fetishist's dream come true: A woman who grew a fully-formed nipple on her foot. Pictures on the link. While such "supernumerary" nipples and breasts are found in 1 percent to 5 percent of the population, they are usually found around the upper torso. This is the first time one has been found on a foot.

Scientists have been messing with flies like this for a long time, inducing eyes to grow on their knees and things like that. This just demonstrates that the same mechanisms are at work in human development, too.

science, weird, politics, midtopia

Bush's hard but brittle line

President Bush has offered to make his senior aides available to Congressional investigators in the prosecutor case -- but not under oath, and with no transcripts.

Bush said his White House counsel, Fred Fielding, told lawmakers they could interview presidential counselor Karl Rove, former White House Counsel Harriet Miers and their deputies — but only on the president's terms: in private, "without the need for an oath" and without a transcript.

The president cast the offer as virtually unprecedented and a reasonable way for Congress to get all the information it needs about the matter.

"If the Democrats truly do want to move forward and find the right information, they ought to accept what I proposed," Bush said. "If scoring political points is the desire, then the rejection of this reasonable proposal will really be evident for the American people to see."

"Reasonable"? Maybe. On the one hand, the demand that there be no oath sounds like more than it is: the aides would still be legally required to tell the truth. But the request for no transcripts is an odd one. Are investigators supposed to put a report together from memory? Why is Bush so adamant that there be no record of the conversations? Is this just more knee-jerk secrecy from the administration that redefined obsessive secrecy?

Reject the offer, Bush warned, and it would provoke a Constitutional showdown. He's right about that: it's unclear just what power Congress has -- or should have -- to subpoena senior members of the executive branch.

The Senate offers a good (if potentially self-serving) primer on Congressional subpoena power here (pdf). It notes that the power to subpoena is not written into the Constitution, but falls under Congress' oversight power. It points to the writings of myriad Founding Fathers attesting to that fact. George Mason noted that legislatures "possess inquisitorial powers." Another founder, James Wilson, said the House of Representatives forms "the grand inquest of the state."

Still, the power, being implied, is somewhat ill-defined. Congress could easily pass laws compelling private citizens to appear. But what of executive branch members? Alexander Hamilton and George Washington both had run-ins with Congressional investigators, though both ultimately complied with Congressional demands.

In 1927, the Supreme Court finally ruled in an executive branch case, McGrain v. Daugherty. It said Congress could investigate the executive branch in order to properly oversee it -- a reaffirmation of legislative supremacy in the Constitutional balance of powers. In 1957, in Watkins v. United States, the Court ruled that such power is broad, but it must pertain to a legitimate task of Congress.

The one exception: the implied power of "executive privilege", in which the president is allowed to keep certain internal deliberations private to encourage candid and forceful discussion among his advisers. But that power is less well-established and more limited than the subpoena power. In the most notable case, United States v. Nixon, President Nixon was compelled to turn over the Watergate tapes. When the President asserts only a generalized need for confidentiality, the privilege does not overcome the interests of governmental oversight or (in the case of Watergate) that of criminal defendants.

So what Bush is threatening is a Constitutional showdown between two implied powers: the power to subpoena executive officials, and the power of executive privilege. Both sides have long avoided such a showdown, for fear of an adverse decision. And the judicial branch has encouraged such vagueness, not wanting to get involved in such an interbranch dispute. It's not pure political cowardice at work, either. With neither side on clear constitutional footing, they tend to compromise and reach solutions that solve the problem at hand without backing either branch into a corner, or forcing the Supreme Court to start deciding which privilege dominates when.

But if it comes to it, I think Bush will lose. He is asserting a generalized privilege, while Congress is attempting to investigate a specific potential case. Much will turn on whether the investigation is well-founded or simply a fishing expedition; look for the White House to argue that there is no evidence of wrongdoing, and thus no justification for an investigation. But assuming it is deemed legitimate, then the Watergate precedent suggests the needs of government will win out over the claim of privilege.

Congress thinks so, too; they've already rejected Bush's offer and are preparing to issue subpoenas on Wednesday. I hate to predict what Bush will do, but look for him to fold on this one. His current White House counsel, Fred Fielding, is a legal realist. Whereas Alberto Gonzales would obediently fight a privilege claim to the bitter, losing end, Fielding is more able to predict who has the winning hand. He will probably advise Bush accordingly.

And then consider the irony: The two strongest proponents of executive power in recent history -- Richard Nixon and Bush -- have ended up doing the most to weaken it through their overreach.

Update: Captain Ed surveys the same terrain and reaches the opposite conclusion, based on the argument that the investigation is groundless.

Also, here's a Clinton-era case in which administration officials were ordered to comply with a subpoena. The full text of the decision is here. Note that in both this and the Nixon case there was a pending criminal investigation, which strengthened Congress' hand. In the prosecutor case there is, as yet, no special counsel or other such legal investigation, which tends to strengthen Bush's hand.

And there was some delicious commentary on it from a familiar name: Tony Snow. He wrote the following in an op-ed piece in the St. Louis Post-Dispatch in 1998.

Evidently, Mr. Clinton wants to shield virtually any communications that take place within the White House compound on the theory that all such talk contributes in some way, shape or form to the continuing success and harmony of an administration. Taken to its logical extreme, that position would make it impossible for citizens to hold a chief executive accountable for anything. He would have a constitutional right to cover up.

Chances are that the courts will hurl such a claim out, but it will take time.

One gets the impression that Team Clinton values its survival more than most people want justice and thus will delay without qualm. But as the clock ticks, the public's faith in Mr. Clinton will ebb away for a simple reason: Most of us want no part of a president who is cynical enough to use the majesty of his office to evade the one thing he is sworn to uphold -- the rule of law.

subpoena, Gonzales, politics, midtopia