Wednesday, March 28, 2007


Rove and his felllow White House lackeys have been eschewing their official White House email accounts in favor of RNC and personal accounts [link]. Obviously this was to avoid scrutiny, record-keeping and potential for those emails being subpeoned—but it's also illegal, and likely completely insecure. Like they care about either of those things.

But in doing that, they may have undercut any claim to executive privilege [TPM]:
White House personnel appear to have been systematically avoiding using their government emails on the job because they knew they might some day be subpoenaed.

But as we noted earlier with Karl Rove, this may have been too clever by half. If the president's aides were using RNC emails or emails from other Republican political committees, they can't have even the vaguest claim to shielding those communications behind executive privilege.

Yup. and you'll have a pretty hard time convincing me that decisions made regarding the US Attorneys conducted through RNC channels isn't political.

The other day, many were wondering under what grounds Monica Goodling would "plead the fifth." You can't plead the fifth simply because you don't want to answer a question—there has to be a crime, and you have to be avoiding being a witness against yourself. Silly, us. Of course there was a crime...
One part of the story which is coming into focus pretty quickly is the position of Deputy Attorney General Paul McNulty and the coterie around Gonzales himself.

McNulty was the one who went up to the Hill and said the firings were for poor performance. But McNulty has since told Sen. Schumer that he explicitly asked Goodling and others, who were briefing him for his testimony, various questions about what had happened in the attorney firings and that they lied to him. 'Misled' him might be the term of art. But the key point from what McNulty is saying is that if he misled Congress it wasn't intentionally. It was because Goodling et al. misled him. If true, that would be a crime. And that's almost certainly the real reason Goodling will take the fifth when called to testify.

Publius at Obsidian Wings "Why It Matters"
If my critique of the Bush administration could be expressed in a single sentence, it would be this — they ignore and attack restraints on their power. This is the foundational conceptual thread that binds together so many of the scandals and controversies we’ve seen over the past few years. International law constraining your actions? Ignore it. War crimes statute limiting your interrogation methods? Ignore it (then delete it). Don’t like part of a congressionally-enacted statute? Issue a signing statement and ignore it. Pesky FISA cramping your style? Declare it unconstitutional. Geneva Convention got you down? Call it quaint. Is your habeas flaring up again? Delete it. Having problems with a special prosecutor? Lie to him. Are certain Democrats political threats? Prosecute them, or suppress their political base through fraud investigations or through not enforcing the Voting Rights Act. And if U.S. Attorneys refuse to go along? Fire them.

[...] It is inherent in the very nature of man to abuse power.

[...] It’s a lesson as old as Ulysses — to enjoy the Sirens, he first had to tie himself to the mast. Like Ulysses, we need to understand that we are congenitally incapable of policing our actions in the heat of the moment. Because passions and self-interest cloud our vision and judgment when we’re actually in the moment, we need to follow rules and laws that were adopted ex ante, when (presumably) everyone was thinking more clearly about the consequences.

[...]Here’s the point — the reason we have these restraints is to prevent abuse of power. If we ignore them, if we allow people (e.g., executive officials) to decide on the fly what they’re allowed to do, these people will inevitably abuse their power. This is the heart of why respecting restraints is more than an abstract concern — it’s necessary to prevent harmful consequences.

Don’t take my word for it – just look at the Bush administration. Name one area – one – in which they have exercised their (awesome) post-9/11 powers with appropriate restraint. I suspect you can’t. But there are tons of counter-examples. Look at the NSA program. Look at the Patriot Act and the FBI national security letters. Look at our detention policy. Look at our foreign military policy. Look at the occupation of Iraq. Look at the power given to replace U.S. Attorneys.

Again and again, in every single one of these areas, the administration abused the power entrusted to it. To be sure, some of these acts were initially motivated by good intentions (like Gandalf’s initial motivation to pick up the ring). But eventually, the ring of power wins.

Hilzoy at Obsidian Wings "No Limits"
With this administration, it's the same thing, with this one difference: that Nixon actually seemed to have some views about policy, views he cared about, while as far as I can tell this President has none, outside his peculiar ideas about the Middle East. Like Nixon, he has thrown out all the most basic assumptions that the government relies on. You can see it in the outing of Valerie Plame: someone who had made real sacrifices, and perhaps risked her life, for her country was exposed for no reason other than pure political benefit. You can see it in the President's statements leading up to the war in Iraq. I don't want to get into the question whether Bush technically lied or not; that's semantics, and it's less important than the obvious fact that he and his administration went around making a series of claims -- that there were links between Saddam and al Qaeda, that there was any remote chance that Iraq might get a nuclear weapon -- that they either knew or should have known were false. You can see it in the President's promises to rebuild New Orleans, a promise he promptly forgot as soon as the klieg lights were turned off. You can see it in this story about the politicization of the GSA. And you can see it in the US Attorneys scandal.

They know no limits at all.

For the record, I think that one of the things that enables this sort of behavior is the fact that so many people are already convinced that all politicians are corrupt. I think we need to get better both at recognizing when this is not so, and at distinguishing different forms of corruption. That none of them are OK goes without saying. Still, there's a world of difference, to me, between someone who hires his brother-in-law to do nothing, which costs the taxpayer the brother-in-law's salary, but does no further harm; and someone, like Duke Cunningham, who gets his dubious friends contracts performing important jobs for the Department of Defense and the CIA, which can compromise our security and get people killed. And there's a big difference between either of them and someone who corrupts an entire branch of government, like the Department of Justice, which undermines the foundations of our government. We need to become better at distinguishing these things, and while we should not accept any of them, we should react to them differently.

Josh at Talking Points Memo (who really has been driving this story) [link]:
And the president is fine with all of this. Fine with the fact that the Attorney General has not only repeatedly lied to the public but has also been exposed as repeatedly lying to the public. He's fine with at least two US Attorneys being fired for not giving in to pressure to file bogus charges to help Republican candidates.

Of course he's fine with it. Because it comes from him. None of this is about Alberto Gonzales. This is about the president and the White House, which is where this entire plan was hatched. Gonzales was just following orders, executing the president's plans. This is about this president and this White House, which ... let's be honest, everyone on both sides of the aisle already knows.

And here
We all understand that politics and the law aren't two hermetically sealed domains. And we understand that partisanship may come into play at the margins. But we expect it to be the exception to the rule and a rare one. But here it appears to have become the rule rather than the exception, a systematic effort at the highest levels to hijack the Justice Department and use it to advance the interest of one party over the other by use of selective prosecution.


Mike said...

Courts can also instruct a jury to draw an "adverse inferences" based on a witness' failure to testify as expected.

Smitty said...

Excellent post Mr. F. Great comprehensive summary of just what is at the core here. It appears to people that maybe the Dems are attacking very small, petty things. But what they are really doing, piece by piece, is making the case that the seat of corruption is the President's and Rove's, and all of this adds up to undue influence of your office to keep yourself in power, versus many many little foibles along the way.