Why Inherent Contempt is the Way to Go

My sense from reading the CRS report on Congress’ Contempt Power is that the way to go is inherent contempt, for the following reasons:

1. Inherent contempt does not involve the Justice Department, the U.S. Attorney for D.C., or conservative judges in the U.S. District Court. Only the Supreme Court has any standing to review inherent contempt cases, and even their review is strictly limited.

2.  A standing committee or a new special committee could be authorized by the full House to hear the evidence in an inherent contempt case and only rely on the full House to put it to a vote. It would not take up the attention of the full House except for the final vote. With Congress in recess, hearings could be held during August, with no resulting impact on Congress’ other work priorities.

3.  Inherent contempt is the appropriate vehicle to use to coerce compliance, and that’s what Congress wants. Congress does not want to punish Harriet Meirs, Josh Bolten, Sara Taylor, Scott Jennings, Alberto Gonzales or Karl Rove, they want the truth, the whole truth and nothing but the truth. Congress wants evidence, in the form of testimony and internal Administration documents (emails).

4.  The criminal contempt statute and corresponding procedure are punitive in nature. It is used when the House or Senate wants to punish a recalcitrant witness and, by doing so, to deter others from similar contumacious conduct. The criminal sanction is not coercive because the witness generally will not be able to purge himself by testifying or supplying subpoenaed documents after he has been voted in contempt by the committee and the House or Senate. Consequently, once a witness has been voted in contempt, he lacks an incentive for cooperating with the committee.

5.  A finding of inherent contempt against an executive branch official does not appear to be subject to the President’s Pardon power.

Any questions?

Tests You Have To Meet

Authorization and Jurisdiction.

A contempt conviction will not be upheld if the committee’s investigation has not been clearly authorized by the full House or Senate. The investigation, and the questions posed, must be within the scope of the committee’s jurisdiction.

Legislative Purpose.

A committee’s investigation must have a legislative purpose or be conducted pursuant to some other constitutional power of the Congress, such as the authority of each House to discipline its own Members, judge the returns of the their elections, and to conduct impeachment proceedings.

Moreover, when the purpose asserted is supported by reference to specific problems which in the past have been, or in the future may be, the subject of appropriate legislation, it has been held that a court cannot say that a committee of the Congress exceeds its power when it seeks information in such areas. In addition, Congress’ power to investigate such diverse matters as foreign and domestic subversive activities, labor union corruption, and organizations that violate the civil rights of others — have all been upheld by the Supreme Court.

Pertinency.

Two different issues of pertinency arise in regard to a contempt prosecution. First, a witness’s refusal to answer questions or provide subpoenaed documents will be punished as a contempt only if the questions posed (or documents requested) by the committee are, in the language of the statute, “pertinent to the question under inquiry.”

In determining general questions of the pertinency of inquiries, the courts have required only that the specific inquiries be reasonably related to the subject matter under investigation. Given the breadth of congressional investigations, the courts have long recognized that pertinency in the legislative context is broader than in the judicial contenxt, which relies primarily on the law of evidence’s standard of relevance. For example, the D.C. Circuit has stated that:

A legislative inquiry may be as broad, as searching, and as exhaustive as is necessary to make effective the constitutional powers of Congress. ... A judicial inquiry relates to a case, and the evidence to be admissible must be measured by the narrow limits of the pleadings. A legislative inquiry anticipates all possible cases which may arise thereunder and the evidence admissible must be responsive to the scope of the inquiry which generally is very broad.

The second pertinency issue concerns the Fifth Amendment’s Due Process Clause. According to the Supreme Court in Deutch v. United States, the pertinency of a “committee’s inquiry must be brought home to the witness at the time the questions are put to him.”

In addition, according to commentators, a witness is entitled “to understand the specific aspect of the committee’s jurisdiction under its authorizing resolution [or House or Senate rule] to which the question relates.” Finally, it appears that the committee must specifically rule on a pertinency objection and, if the objection is overruled, inform the witness of that fact before again directing him to answer the question.

Willfulness.

A conviction for statutory criminal contempt cannot be sustained unless the failure to appear before the committee, to produce documents, or to respond to questions is a willful, intentional act. However, an evil motive does not have to be established. Because of the willfulness requirement, and to satisfy constitutional due process standards, when a witness objects to a question or otherwise refuses to answer, the chairman or presiding member should rule on any objection and, if the objection is overruled, the witness should be clearly directed to answer.

Other Procedural Requirements.

A contempt conviction can be reversed on other non-constitutional grounds. The cases make clear that committees must closely follow their own rules and the rules of their parent body in authorizing subpoenas and conducting investigations and hearings. It appears that a witness can be convicted of criminal contempt, but not of perjury, where a quorum of the committee was not present.

Source: CRS Report dated 7/24/07

(Internal citations removed; emphasis added)

Civil Contempt in the House of Representatives.

While the House of Representatives cannot pursue actions under the Senate’s civil contempt statute, there are numerous examples of the House, by resolution, affording special investigatory committees authority not ordinarily available to its standing committees. Such special panels have often been vested with staff deposition authority, and given the particular circumstances, special panels have also been vested with the authority to obtain tax information, as well as the authority to seek international assistance in information gathering efforts abroad. In addition, several special panels have been specifically granted the authority to seek judicial orders and participate in judicial proceedings.

For example, in 1987, the House authorized the creation of a select committee to investigate the covert arms transactions with Iran (Iran-Contra).

A review of modern House precedents indicates at least 5 other special or select committees that have been granted, via House resolution, both subpoena authority as well as the ability to seek and participate in judicial actions. These include: The October Surprise Investigation; The White House Travel Office Inquiry; The House Campaign Finance Investigation; The Select Committee on National Security Commercial Concerns; and The Teamsters Election Investigation.

Source: CRS Report dated 7/24/07

(Internal citations removed; my bold)

Civil Contempt in the Senate.

As an alternative to both the inherent contempt power of each House and the criminal contempt statutes, in 1978 Congress enacted a civil contempt procedure, which is applicable only to the Senate. The statute gives the U.S. District Court for the District of Columbia jurisdiction over a civil action to enforce, secure a declaratory judgment concerning the validity of, or to prevent a threatened failure or refusal to comply with, any subpoena or order issued by the Senate or a committee or subcommittee. Generally such a suit will be brought by the Senate Legal Counsel, on behalf of the Senate or a Senate committee or subcommittee.

Civil contempt, however, has limitations. Most notable is that the statute granting jurisdiction to the courts to hear such cases is, by its terms, inapplicable in the case of a subpoena issued to an officer or employee of the federal government acting in their official capacity.

During the course of the debates regarding this legislation, the executive branch strongly opposed conferring jurisdiction upon the federal courts to decide such sensitive issues between Congress and the executive branch. Testifying before a subcommittee of the Senate Committee on Governmental Operations, then-Assistant Attorney General Antonin Scalia argued that weighing the legislature’s need for information against the executive’s need for confidentiality is “the very type of ‘political question’ from which ... the courts [should] abstain.” In response, Congress amended the proposed legislation excluding from its scope federal officers and employees acting in their official capacity. However, as noted in a report from the House Judiciary Committee in 1988, the exclusion was to apply only in cases in which the President had directed the recipient of the subpoena not to comply with its terms. 

Source: CRS Report dated 7/24/07

(Internal citations removed; emphasis added)

This is the first in a series of posts on the new Congressional Research Service (CRS) Report on Congress' Contempt Power (dated July 24, 2007). The report was apparently developed to answer certain questions about the three main types of contempt citations. It is quite good, but a little long, so I thought it would be a good idea to share some of the better passages. I think looseheadprop is going like it.

What is Inherent Contempt?

Congress’ inherent contempt power has been upheld by the Supreme Court in Anderson v Dunn (1821) and McGrain v. Daugherty (1927). Both decisions were made without dissent.

Under the inherent contempt power the individual is brought before the House or Senate by the Sergeant-at-Arms, tried at the bar of the body, and can be imprisoned in the Capitol jail. The purpose of the imprisonment or other sanction may be either punitive or coercive.  Thus, the witness can be imprisoned for a specified period of time as punishment, or for an indefinite period (but not, at least by the House, beyond the end of a session of the Congress) until he agrees to comply.

When a witness is cited for contempt under the inherent contempt process, prompt judicial review appears to be available by means of a petition for a writ of habeas corpus.  In such a habeas proceeding, the issues decided by the court might be limited to (a) whether the House or Senate acted in a manner within its jurisdiction, and (b) whether the contempt proceedings complied with minimum due process standards.

In comparison with the other types of contempt proceedings, inherent contempt has the distinction of not requiring the cooperation or assistance of either the executive or judicial branches. The House or Senate can, on its own, conduct summary proceedings and cite the offender for contempt. Furthermore, although the contemnor can seek judicial review by means of a petition for a writ of habeas corpus, the scope of such review may be relatively limited, compared to the plenary review accorded by the courts in cases of conviction under the criminal contempt statute.

Proceedings under the inherent contempt power might be facilitated, however, if the initial fact-finding and examination of witnesses were to be held before a special committee – which could be directed to submit findings and recommendations to the full body – with only the final decision as to guilt being made by the full House or Senate.

As such, it would appear that one of the suggested reasons for the apparent abandonment of the use of Congress’s inherent contempt power, namely, that it became to cumbersome and time consuming to try contemptuous behavior on the floor of the body, is no longer compelling.

The criminal contempt statute and corresponding procedure are punitive in nature. It is used when the House or Senate wants to punish a recalcitrant witness and, by doing so, to deter others from similar contumacious[1] conduct. The criminal sanction is not coercive because the witness generally will not be able to purge himself by testifying or supplying subpoenaed documents after he has been voted in contempt by the committee and the House or Senate. Consequently, once a witness has been voted in contempt, he lacks an incentive for cooperating with the committee.

Arguably, an inherent contempt proceeding takes place wholly outside the criminal code, is not subject to executive execution of the laws and prosecutorial discretion, and thus, appears completely beyond the reach of the executive branch. Furthermore, as previously indicated, inherent contempt, unlike criminal contempt, is not intended to punish, but rather to coerce compliance with a congressional directive. Thus, a finding of inherent contempt against an executive branch official does not appear to be subject to the President’s Pardon power–as an inherent contempt arguably is not an “offense against the United States,” but rather is an offense against a House of Congress.

The assertion that the legislative history of the 1857 statute establishing the criminal contempt process demonstrates that it was not intended to be used against executive branch official is not supported by the historical record. The floor debates leading to the enactment of the statute make it clear that the legislation was intended as an alternative to, not a substitute for, the inherent contempt authority.  This understanding has been reflected in numerous Supreme Court opinions upholding the use of the criminal contempt statute.  A close review of the floor debate indicates that Representative H. Marshall expressly pointed out that the broad language of the bill “proposes to punish equally the Cabinet officer and the culprit who may have insulted the dignity of this House by an attempt to corrupt a Representative of the people.”1

Source: CRS Report dated 7/24/07

(Internal citations removed; my bold)

There were some interesting questions the past few days about the interplay of impeachment and the Presidential power of pardons. I thought some clarification might help. An impeachment and conviction results in removal from office, bars the convicted individual from ever serving again, and can result in the loss of emoluments (such as government pensions). Once removed, the convicted person cannot exercise the power of that office. Ergo, the President cannot pardon anyone (including himself) once he’s been impeached and convicted. The exception to the use of the pardon power (which includes commutations and such) is in cases of impeachment. What this means is that the President cannot preemptively pardon himself or anyone else to preclude an impeachment proceeding or to prevent or overturn the result.

And this made me lol.

 low-tech cyclist (formerly RT) says:
July 12th, 2007 at 6:43 pm

I'm wondering why Comey’s so-called appointment (not what I would call it) of Patrick Fitzgerald as Special Counsel in the Plame scandal really matters. So what if it wasn’t technically valid? What difference would it make if some court found the “appointment” to be technically invalid? Isn’t that a moot point, since Fitz was already a U.S. Attorney, fully empowered to investigate, bring charges, etc.?

First of all, Fitz was already a U.S. Attorney, nominated by the President and confirmed by the Senate. He could only be removed by the President. So why would Comey’s delegation memo make him subject to lesser regs like the Special Counsel reg, that would apply to outsiders like Ken Starr, but not high-ranking insiders like a U.S. Attorney? Per 28 USC 600.3, “The Special Counsel shall be selected from outside the United States Government.” These regs simply don’t apply to Fitz as a U.S. Attorney.

Second, I don’t see why everyone keeps calling this an appointment. Fitz was already a Fed. He already had a U.S. Attorney appointment. Comey just delegated his authority as acting AG limited to this investigation, since the AG had already recused himself and Comey was Acting AG at the time. He didn’t appoint Fitz to anything, he gave him limited delegated authority to investigate and prosecute this case.

Third, what is this removal issue about? The AG could have removed Fitz from the case, but not his position as U.S. Attorney. Only the President has the power to remove a U.S. Attorney (oops, guess someone should tell all those folks who were fired last year to get back to work). The delegation was by an (Acting) Attorney General, therefore it is obvious that another Attorney General (other than one who had recused himself) could have cancelled it or otherwise removed Fitz from the case. Is that really not obvious?

Lastly, my contention is that this wasn’t an appointment as a “Special Counsel” (as Comey so nicely tried to point out in his second memo on the subject), but merely a delegation of authority to fill in the missing blanks between Fitz’ status as a U.S. Attorney and his needs in this particular investigation (e.g., working outside his home district). 28 CFR 510 permits the AG to delegate any function of the AG to any officer, employee or agency of DOJ. So what’s the problem? This kind of thing goes on all the time. We have delegations of authority all over the place. Do you think the AG does any real work? Well, certainly not this AG.

Huh. MS wont let me embed a graphic here. I was trying to insert Comey's December 30, 2003 memo here. Oh well.

Here's some US Code if you're having trouble sleeping. 

US Code

TITLE 28 > PART II > CHAPTER 31 > § 508

§ 508. Vacancies

(a) In case of a vacancy in the office of Attorney General, or of his absence or disability, the Deputy Attorney General may exercise all the duties of that office, and for the purpose of section 3345 of title 5 the Deputy Attorney General is the first assistant to the Attorney General.

(b) When by reason of absence, disability, or vacancy in office, neither the Attorney General nor the Deputy Attorney General is available to exercise the duties of the office of Attorney General, the Associate Attorney General shall act as Attorney General. The Attorney General may designate the Solicitor General and the Assistant Attorneys General, in further order of succession, to act as Attorney General.

§ 509. Functions of the Attorney General

All functions of other officers of the Department of Justice and all functions of agencies and employees of the Department of Justice are vested in the Attorney General except the functions—

(1) vested by subchapter II of chapter 5 of title 5 in administrative law judges employed by the Department of Justice;

(2) of the Federal Prison Industries, Inc.; and

(3) of the Board of Directors and officers of the Federal Prison Industries, Inc.

§ 510. Delegation of authority

The Attorney General may from time to time make such provisions as he considers appropriate authorizing the performance by any other officer, employee, or agency of the Department of Justice of any function of the Attorney General.

§ 515. Authority for legal proceedings; commission, oath, and salary for special attorneys

(a) The Attorney General or any other officer of the Department of Justice, or any attorney specially appointed by the Attorney General under law, may, when specifically directed by the Attorney General, conduct any kind of legal proceeding, civil or criminal, including grand jury proceedings and proceedings before committing magistrate judges, which United States attorneys are authorized by law to conduct, whether or not he is a resident of the district in which the proceeding is brought.

(b) Each attorney specially retained under authority of the Department of Justice shall be commissioned as special assistant to the Attorney General or special attorney, and shall take the oath required by law. Foreign counsel employed in special cases are not required to take the oath. The Attorney General shall fix the annual salary of a special assistant or special attorney.

[Note: Keep in mind Fitz was already a U.S. Attorney and only needed certain parts of this section as  Special Counsel.]

I spent the day at Prettyman District Courthouse on Thursday. I wanted to see I. Lewis “Scooter” Libby finally and completely sentenced for his convictions on perjury, giving false statements and obstruction of justice in the Plame case. For those of you who have been living under a rock for the past 2 years, Valerie Plame Wilson was an undercover CIA agent whose secret identity was exposed by Scooter Libby on the express orders of the Vice President of the United States, Richard Cheney, and possibly with the explicit permission of the President of the United States, George W. Bush. In my humble opinion, exposing the identity of a CIA agent during wartime is treason.

I couldn’t get in to the Senate Judiciary Committee markup session on Capitol Hill (there was no room for the public), so I decided to head down to the Prettyman courthouse, which is just down the street from the Senate office buildings on Constitution Avenue (how ironic, eh?). I wanted to get there early, just in case there was a line forming.

I forgot to bring my copy of David Corn’s book, The Lies of George W. Bush. I wanted to ask him to sign it. Turns out, it didn’t matter. David didn’t show up for the hearing. In fact, hardly anyone showed up. Too bad. It was a humdinger. ( I didn’t find out until today that I missed meeting Pach! Arrrrggghhhh.)

I spotted Judge Walton (just can’t bring myself to call him Reggie; he has earned the title) in the cafeteria getting his coffee. I smiled and nodded in his direction. He didn’t seem to react, and he looked preoccupied. I wonder why? (I would soon see.)

The line didn’t start forming until after 10. Nina Totenberg showed up with an intern in tow (never too soon to teach the younger generation how to do the real legwork). David Shuster came a little late and ended up last in the “media line.” I thought this “media line” was funny. Last week, there were two lines, one for the public and one for the media. To me, that indicated the media would be limited to their own reserved section and the members of the public would be limited to the unreserved seats. The media seemed to think that they had priority entry, and acted as if they should get to go first into the hearing room. I held the door for several of the ladies of the media, including Nina, who graciously thanked me, but the rest of the media continued to stream in as if I were the doorman. I’m old-fashioned, but I was beginning to think, “this is ridiculous.” Someone finally let me go in ahead of the rest of the media.

As I mentioned, David Shuster showed up a little late, all aglow (must be the tan) from his recent honeymoon. He flashed his wedding ring to a friend (the hug and kiss was a dead giveaway) and his faced turned a little red as they chatted about it.

I think I was only person in the room who represented “the general public.” And the only one over 50 (not counting the media of course). There was the media, in their own reserved pews. The “public” seats were populated with law school students, interns and such. For the most part, the kids were well-dressed (suits and ties, dresses).  A few were sleeping in the back (burning the candle at both ends –ah, those were the days).

Patrick Fitzgerald and Team USA came in around 11:15. Lots of discussion. Fitz looks worried. Maybe it’s just his game face.

Team Libby comes in at 11:20. Damn. The hearing is in 10 minutes. (Actually less. The judge walked in only a few minutes later). Libby’s new lawyer, Larry Robbins, shakes hands with Team USA (kinda like a handshake before a boxing match). Notably, he came to them. Fitz is over with Ted Wells, laughing and sharing a private joke. Damn, I wish I could have gotten a front row seat.

Judge Walton is in the court. He reviews why we’re here today: to finalize the actual sentence and address release while under appeal. Says 30 month sentence is ok. Discusses issue of aggregating the counts; if count is later dismissed, sentence will have to be recalculated then (he later revises this position).

Libby is impassive throughout, even when Judge Walton reiterates the 30 month sentence.

Judge Walton talks about getting threatening calls and letters, to himself and his family. He plans to keep them from now on, just in case something should happen. How sad is that?

Larry Robbins gets up to address the issue of release while under appeal. Judge Walton dresses him down (and by inference Team Libby) on the first footnote of the Libby motion to release. Footnote cites other white collar crime cases where defendant was released while appeals were pursued. Walton points out that the reasons for those releases were not cited in the footnote, as if notoriety or the nature of the crimes themselves were all that mattered. Judge Walton notes that Congress, when it passed the changes to the sentencing guidelines that restricted the release of convicted felons to specific circumstances, did not want judges to release criminals “willy nilly.”

Larry Robbins goes on to talk about the Appointments Clause issue. He says he has six points (I lost count). He is very argumentative and pushy. His tone approaches sarcasm at times (“well, I was there… when Scalia read his opinion”). Not winning points here (maybe he doesn’t need to). At one point, it even sounded like he already knew how the Appeals Court is going to rule on Libby’s appeal (at least whether he has grounds and thus the Appeals Court will hear it). Maybe he was just stretching the language or talks like he knows what’s going to happen based on ego alone, but he sure sounded confident that the appeal was going to be heard. Wonder how the Appeals court is going to rule on releasing Libby.

I’m mixing tenses here (in honor of Lurita “Cookies” Doan). Hope it’s not too confusing.

Here are some of the more egregious (love that word) examples of Robbins’ statements:

“I think the DC Circuit will reconcile them [Morrison and Edmond] differently.”

“Well I doubt that since I was there when Scalia read his opinion.” (RE: Scalia’s dissenting opinion in Morrison.)

“To my old friend from NY, Pat…” In referring to Comey’s second delegation memo (which does not say this at all).

“There’s an accountability moment every 4 years.” (Where have I heard that before? I thought he was gonna say impeachment for a second there.)

Robbins argues that Fitz’ appointment makes him a Principal Official (thought the term was Superior officer), and only the President can do that, with the advice and consent of the Senate.

Robbins agrees that Comey could remove Fitz (so why isn’t he an inferior office then?), but that the lack of “regular reporting” and no need to follow DOJ regs (sez who?) makes him a superior officer (ok, I’m officially lost).

Judge Walton says this situation is different than Morrison because the DOJ is “linked at the hip” with the White House.

Judge Walton agrees that following DOJ policy is crucial. (But then, he had already concluded that Fitz had to follow DOJ policy, since he was a U.S. Attorney.)

Robbins confuses the term “related” people or case with “related” crimes. He misquotes from the second (Feb. 6) Comey letter (on purpose I think) to make it seem even more “related.”  Morrison was not allowed to go after “related” people because her appointment was limited to going after a specific individual. Fitz was limited to crimes “related” to the underlying crime of betraying the identity of an undercover CIA agent.

Robbins cited Fitz’ filing of a section 6c2 (CIPA) affidavit in support of the government’s position that classified evidence could not be shared in open court as evidence of a rogue prosecutor. Regulations and the underlying law specify only a few specific officers (the AG, Deputy AG, Associate AG or designated Assistant AG) may act as AG under CIPA. [However, rulings by the court to close the proceedings do not require a request from the AG or these designated officials. Walton can go in camera any time he wants. Nor is the provision of a 6c2 affidavit by the AG or designated official required (the statue says “The United States may, … submit to the court and affidavit of the Attorney General….” (emphasis added)).]

Robbins talks about Andrea Mitchell testimony. Something about US vs. Johnson in the DC Circuit.

Judge Walton smacks that down. Said letting Andrea Mitchell testimony in would have led to rank speculation on the jury; would have to throw away the rules of evidence; would have been a free-for-all. Role as a gatekeeper; would have to give that up. Judge Walton is very well-versed in the Mitchell issue. Marcy would be proud.

Robbins brings up amicus curiae brief (duck). What is he thinking? Is he a glutton for punishment? Didn’t he read the Judge’s response?

Judge Walton says the amicus submission was “not what I would expect from a first year law student.” There were quite a few snickers from the kids.

Robbins continues to be a smart ass. Wow. “These 12 scholars believe this is a close question.”

Judge Walton is not falling for it. He is really frosted.

Judge Walton asks Fitz to respond.

Fitz says 600c is simply not applicable. Under CIPA, we filed under 6a (to close the court) and 6c. A 6e situation never happened.

Judge Walton ask Fitz if we were in full compliance with CIPA.

Fitz says basically yes (though he also admits there may have been minor procedural errors); we never got an objection, the affidavit was not classified it was public record pulled off PACER; we’ve done this many times before. We filed a 6a affidavit to close the court (in camera) and a 6c to show identifiable damage issue applies. We never got to a 6e filing. U.S. Attorneys and Assistant U.S. Attorneys handle CIPA filings all the time.

Fitz addressed the “related” in Morrison vs. this case. Morrison was person-specific authority. Fitz’ authority is to investigate the crime of outing a CIA agent.

Fitz addressed the “reporting” issue. He says “the whole world knew it.” The Attorney General (both Ashcroft and Gonzales) had recused himself. Reported to Margolis when something was about to happen. He noted U.S. Attorneys consider ongoing reports to superiors in Washington to be optional; this is DOJ policy and tradition. U.S. Attorneys are independent (well, they used to be). Normal procedures would suggest we provide some advance reporting, but we don’t ask permission.

Fitz said he was “fire-able at will.”

Bonamici covers specifics of Team USA rebuttal. Obvious to anyone that Fitz was removable at will and that this is crucial to status of inferior officer (Scalia dissent). Should also be obvious that an exception to the normal reporting was necessary with an investigation at the highest levels of government.

Application of DOJ policies – did they apply to Fitz? Yes. 

Removability – yes.

The term “related” as used by Robbins is the wrong interpretation.

Judge Walton knows the whole story as well as Marcy. Talks about “overwhelming” evidence of Libby’s guilt.

Robbins back up.

“We think we’ll win under Morrison.” (Wonder why he thinks that.) Still playing fast and loose with the word “related” from Morrison. Still debating the signature on the CIPA affidavit. Quotes from the first Comey delegation: “all the plenary power of the Attorney General….”

[So what? Besides the fact that the scope is limited to this case, Fitz is a U.S. Attorney. He has the authority to investigate and prosecute Federal crimes. Who cares if his appointment was faulty? He still has his day job, and that’s exactly what he has been doing here.]

Judge Walton abruptly says he will take 5 minutes to decide the issue of the appointments clause. Seems to be the only sticking point. He is gone for more than 20 minutes.

Fitz and Co. look worried. Libby team is all smiles. You know, that’s quite a commentary on the two teams; one is serious about their work and its consequences, the other seems to see it as a big joke, or at least as something not worth worrying about. Wonder how Scooter feels about that.

1:15. Judge Walton is back (almost called him Reggie there.)

First he says, just because I give lengthy opinions does not mean the issue is close.

Morrison is controlling; Edmond is not.

The four factors in Morrison are important; Scalia noted that removal at will was the most important; a position with supervision “at some level.” All four factors are present here plus removal at will. This is not even close.

None of the other issues raised are close.

Request for release on appeal denied. 

Sentence clarified:

30 months for obstruction

24 months for perjury

6 months for false statements

Robbins asks for a stay on surrendering (?)

Request denied.

Fitz jumps up to remind Judge Walton of a technical matter of the right to appeal within 10 days – and to say “if you cant afford a lawyer, we will appoint one.” Hahaha.

All’s well that end well. At least for today. Sure seems like the Appeals Court is going to have an awfully hard time overturning any aspect of this case, unless they think like Libby’s lawyers, out of context, and without regard to normal day-to-day decisions and common sense.

For those of you who are curious, it is often quite easy to get in to a court or Congressional hearing. Just get there early.

Hypothesis 4: The Appointment of Tim Griffin as U.S. Attorney in Arkansas was for purely partisan political purposes.

Primary Question: Who decided Tim Griffin should be U.S. Attorney for AR?

Explore all aspects of Tim Griffin’s appointment:

• History of working with Karl Rove (deputy OPA), RNC opposition research (dirty tricks), etc.
• Real experience (e.g., 6 months as Special USA)
• Circumstances of appointment (gum it to death, etc.)
• Activity in Arkansas since his appointment

Evidence

1. May 6, 2006 (original sent 4/27/06) email from Tim Griffin to Kyle Sampson.[1]

Bud Cummins letter from 2002. Email indicates interest in getting Tim Griffin installed as USA in AR. Also see document at footnote 3.

2. June 21, 2006 WH Judicial Selection Committee report (19 of 23 controlled copies).[2]

Report lists appointment of Tim Griffin under Old Business. Who is on WH Judicial Selection Committee?

3. July 5, 2006 email from Monica Goodling to Tim Griffin.[3]

Money Quote: Monica Goodling: “WH belatedly told us they hadn’t finished checking a few boxes…. WHCO also asked me to remind you to continue to keep this close hold.” [aka keep it a secret]

Money Quote: Monica Goodling: “WHCO run the process”

Note: These may be technical approvals only; if so, drop line of inquiry.

4. July 25, 2006 email from Kyle Sampson to Andrea Looney, WH.[4]

Money Quote: Kyle Sampson: “If the President has already approved Griffin…”

5. August 14, 2006 email from Kyle Sampson to Scott Jennings (@gwb43.com) re: Tax Court.[5]

Money Quote: Scott Jennings: “I’d like to talk to you about Tim Griffin”

Note direction of inquiry – from (not to) Deputy Director of White House Office of Political Affairs (Karl Rove’s deputy)

6. August 18, 2006 email from Kyle Sampson to Scott Jennings (@gwb43.com) re: Tim Griffin.[6]

Money Quote: Monica Goodling: “We have a senator prob, so while wh [White House] is intent on nominating, scott [Jennings] thinks we may have a confirmation issue.” “… gets him [Griffin] into the office he and WH want him in.”

Money Quote: Kyle Sampson: Tell us when, Scott, and we’ll be on it.”

      Scott says jump, Kyle asks, how high? Who is taking orders from whom on this issue?

7. August 30, 2006 email from Scott Jennings (@gwb43.com) to Monica Goodling and others.

Indicates interest of White House Office of Political Affairs (Karl Rove).

8. December 19, 2006 email from Kyle Sampson to Monica Goodling re: Tim Griffin. [7]

Money Quote: Kyle Sampson: “…getting him [Tim Griffin] appointed was important to

Harriet, Karl, etc.”

9. February 8, 2007 email from Kyle Sampson to Michael Beck (OAG) re: response to Reid letter.[8]

Money Quote: Kyle Sampson: “Please print (1) the attached letter and (2) the below e-mail for the AG.”

Interesting. The AG can’t get email?

Note: Michael Beck forwarded this message to someone (name redacted) on 2/9/07 at 4:27 am (DOJ Docs 4/27/07, OAG1321-1361, page 1337).

Money Quote: Kyle Sampson: “I am not aware of anyone (other than Mr. Griffin) lobbying, either inside or outside of the Administration, for appointment.

Money Quote: Kyle Sampson: “I am not aware of Karl Rove playing any role in the Attorney General’s decision to appoint Griffin.”

10. February 16, 2007 email from Monica Goodling to Kyle Sampson re: Tim Griffin.[9]

Embedded email from Tim Griffin addressed to ‘Karl Rove’ and others at White House Office of Political Affairs (apostrophes indicate use of outside email address).

11. A quote from former USA Cummins (E. Arkansas; Replaced by Tim Griffin, Rove’s former assistant):

“At some point, I began communicating with Tim Griffin, and he was obviously in constant communication to DOJ management through Monica Goodling and others. It appeared to me that Tim Griffin was also in contact with the White House.”

From House Judiciary Q&A. http://judiciary.house.gov/Media/PDFS/Chair-Cummins070430.pdf

Hypothesis 2: The authority to remove U.S. Attorneys rests solely with the President, so his authorization was required.

Primary Question: Is the President’s authorization in writing? If so, please provide a copy. If not, when did he give his verbal authorization to remove these U.S. Attorneys, who was present, and was the meeting recorded in any fashion?

Hypothesis 3: U.S. Attorneys were fired for partisan political reasons, either for aggressively pursuing Republicans (e.g., Carol Lam) or for not pursuing Democrats aggressively enough (e.g., Iglesias).

Primary Question: Did Karl Rove provide significant input into the decisionmaking process? If so, it is likely that political considerations were paramount and all other stated reasons are cover.

Ask Monica Goodling or Scott Jennings (or better yet, Karl Rove) who Mark McKinnon of Public Strategies is, and why is he receiving emails from the White House?[1]

Mark McKinnon is vice chairman of Public Strategies, as well as president of Maverick Media. As chief media adviser to President George W. Bush, McKinnon directed the advertising effort for the 2000 and 2004 presidential campaigns. He currently advises Senator John McCain.

President Bush appointed McKinnon to serve as a member of the Broadcasting Board of Governors, the independent, autonomous entity responsible for all U.S. government and government-sponsored, non-military, international broadcasting. The nine-member board includes Secretary of State Condoleezza Rice.

President Bush says of McKinnon, “I was really impressed by Mark’s creativity, and I was particularly impressed by his honesty. He’s a trusted ally."

Ask Monica Goodling, Brian Roehrkasse, or Karl Rove (or even Fred Fielding) about calls in late February 2007 from Steve Bell, Sen Domenici’s chief of staff concerning David Iglesias.[2]

Timing of Lam investigation of Duke Cunningham, et al

May 11, 2006 email from Kyle Sampson to Bill Kelley, WHCO re: Removal and Replacement of US Attorneys. [3]

Money Quote: Kyle Sampson: “The real problem we have right now with Carol Lam ….”

More Research/Documentation Needed on:

o        Timing of Frederick Black (Guam, NMI) investigation of Abramoff

o        Timing of non-investigation of Dems in NM (Iglesias; Domenici phone calls, contacts with Karl Rove, Fred Fielding, and the President)

o        Timing of non-investigation in Seattle (McKay)

o        Timing of Biskupic investigations of “voter fraud” with local Repubs in WI

o        Timing of non-investigations in AZ (Charlton)

o        Chiara (MI)

o        Bogden (NV)

o        Todd Graves (MO)

o        Bud Cummins/Tim Griffin (AR)

o        Thomas DiBiagio (MD)

o        Tom Heffelfinger (MN)

o        Bill Leone (CO)

o        Kasey Warner (WV)

o        David York (AL)

o        Others?

United States (U.S.) Attorney Firings

Potential Lines of Inquiry

Hypothesis 1: The White House decided which U.S. Attorneys to fire and fired them for purely partisan political reasons (pursuing Republicans or not pursuing Democrats).

Suggested lines of inquiry:

Who decided which U.S. Attorneys to fire?

What meetings?

Where?

Who was there?

What was said, by whom?

Evidence Listed Chronologically (references are to documents provided by the Department of Justice to the House Judiciary Committee (HJC) and are stored at the HJC website):

1. January 9, 2005 email from Kyle Sampson to David Leitch (White House Counsel’s Office) RE: Question from Karl Rove.[1]

Money Quote: Colin Newman (WHCO) to David Leitch (WHCO): “Karl Rove stopped by to ask you (roughly quoting) “how we planned to proceed regarding US Attorneys, whether we were going to allow all to stay, request resignations from all and accept only some of them, or selectively replace them, etc.”

Money Quote: Kyle Sampson: “Judge [Gonzales] and I discussed briefly a couple of weeks ago.”

Money Quote: Kyle Sampson: “The vast majority of U.S. Attorneys, 80-85 percent, I would guess, are doing a great job, are loyal Bushies, etc., etc.”

Money Quote: Kyle Sampson: That said, if Karl thinks there would be political will to do it, then so do I.”

2. February 2, 2005 article re: Milwaukee voter fraud article.[2]

Money Quote: Kyle Sampson (?) Handwritten: “Discuss with Harriet”

Money Quote: Footer shows document was produced from Karl Rove’s personal computer from email attachment. Indicates Rove’s interest in U.S. Attorney involvement in voter fraud efforts. See preceding pages 820-849 for additional evidence re: voter fraud in WI.

3. March 2005 emails between Kyle Sampson and Harriet Miers re: recommendations for US Attorney firings. [3]

Money Quote: “Recommend Removing”

4. January 9, 2006 email from Kyle Sampson to Harriet Miers and William Kelley.[4]

Money Quote: Kyle Sampson: “If a decision is made to remove and replace a limited number of U.S. Attorneys,….” [A decision by whom?]

Lists several USAs to be fired. List changed over time. Iglesias not on this list; Kevin Ryan included here, dropped from later lists, then added again (see 11/15/06 entry below).

5. May 11, 2006 email from Sampson to Kelley forwarding prior email to Dabney Friedrich, White House Counsel’s Office. [5]

Money Quote: "I'd have 3-5 additional names that the White House might want to consider."

6. July 5, 2006 email from Monica Goodling to Michael Elston re: Carol Lam.[6]

Money Quote: Monica Goodling: “Yes - need to discuss at appts update anyway.”

What is “appts update?” Who attends? Who makes decisions at these meetings?

7. September 2006 emails between Kyle Sampson and Harriet Miers listing U.S. Attorneys to be fired. [7]

Money Quote: “USA in the Process of Being Pushed Out. USAs We Now Should Consider Pushing Out.”

8. October 5, 2006 email from Michael Elston to all U.S. Attorneys, First Assistant U.S. Attorneys, DOJ management re: resignation guidance. [8]

Interesting to note guidance went out just as list was being finalized.

9. November 7, 2006 email from Kyle Sampson to Michael Elston re: U.S. Attorney Replacement Plan. [9]

Money Quote: Kyle Sampson: “And I’ll wait for the DAG’s input (but no longer than tomorrow).” [As if the DAG’s input really didn’t matter.]

10. November 15, 2006 email from Kyle Sampson to Harriet Miers (cc: Bill Kelley, WHCO  and Paul McNulty, DAG) re: U.S. Attorney Replacement Plan. [10]

Money Quote: Kyle Sampson: “We’ll stand by for a green light from you.”

Money Quote: Kyle Sampson: “(nor have I informed anyone in Karl’s shop, another pre-execution necessity I would recommend)”

Money Quote: Kyle Sampson: “(…ask that you circulate it to Karl’s shop)”

11. November 15, 2006 email from Kyle Sampson to Harriet Miers.[11]

Money Quote: Kyle Sampson: “Who will determine whether … this requires the President’s attention?

Money Quote: Harriet Miers: “Not sure whether this requires boss’s [sic] attention. If it does, he just left last night so would not be able to accomplish that for some time. We will see.”

12. December 4, 2006 email from Kyle Sampson to Bill Kelley (WHCO) re: Revised U.S. Attorney Replacement Plan. [12]

Money Quote: Kyle Sampson: "per our discussions" 

Money Quote: Bill Kelley: We're a go for the US Atty plan. WH leg, political [Karl Rove] and communications have signed off…”

13. December 4, 2006 email from Kyle Sampson to Jane Cherry (@gwb43.com) and Scott Jennings re: U.S. Attorneys. [13]

Money Quote: Jane Cherry: “Just following up on Scott’s [Jennings, Karl Rove’s deputy] behalf to see if we could get the list you discussed with him this weekend?

14. December 5, 2006 email from Kyle Sampson to Bill Mercer re: U.S. Attorney Replacement Plan.[14]

Money Quote: Kyle Sampson: “Administration has determined…”

Money Quote: Kyle Sampson: “I beat back a much broader – like across the board – plan that WHCO was pushing after 2004).”

15. December 7, 2006 email from Kyle Sampson to William Kelley[15]

Money Quote: “Is OPA [Office of Political Affairs, headed by Karl Rove] calling the political leads in CA, WA and MI?"

16. December 7, 2006 email from Kyle Sampson to Kelley and Scott Jennings[16]

Money Quote: “Karl [Rove] would like to know some particulars as he fields these calls.”

17. December 19, 2006 email from Kyle Sampson to Monica Goodling re: Tim Griffin. [17]

Money Quote: Kyle Sampson: “…gum this to death… run out the clock… done in "good faith," of course.” “…pledge to desire a Senate-confirmed U.S. Attorney…”

Money Quote: Kyle Sampson: “There is some risk that we’ll lose the authority….” [to appoint U.S. Attorneys without Senate confirmation.]

Money Quote: Kyle Sampson: “…getting him [Tim Griffin] appointed was important to

Harriet, Karl, etc.”

18. January 8, 2007 email from Kyle Sampson to Monica Goodling and Leslie Fahrenkopf (WH) re: Senator Domenici recommendations. [18]

Money Quote: original email sent from Steve Bell of Senator Domenici’s staff to Karl Rove (@georgewbush.com). Funny how he knows to send email to Karl’s political address. Wonder who else knows.

19. March 5, 2007 Meeting at the White House, ostensibly attended by Karl Rove.[19]

List of email recipients:

William Kelley, WHCO

Paul McNulty

William Moschella

Kyle Sampson

Richard Hertling

Tasia Scolinos

Michael Battle

Michael Elston

Brian Roehrkasse

Monica Goodling

Tracy Washington

[Lots of witnesses.]