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It's official, this is a talking point. Just to show that this morning was no slip-up, here's Tony Snow during today's briefing:

Q If it's behind closed doors, what's the problem?

MR. SNOW: The thing that we have said all along is, we think that you ought to have the ability for members of Congress to get information in a way that also does not create precedence, and is going to have a chilling effect for presidential advisors to be able to give their full and fair advice to the President of the United States. We think that the compromise we shaped enables us to fulfill that obligation to the President, and to the public in terms of first-rate advice from the White House and the people working in the White House, and at the same time, allows Congress to do what it has to do, which is conduct oversight. There is nothing that says Congress has to have television; it says that Congress does have oversight responsibilities and needs to get at the facts.

Furthermore, the people who are first and foremost in the decision loop here, the folks at the Department of Justice, they aren't going to be out. I mean, they're going to be out, they're going to be testifying, they're offering all their documentation, as well.

Q They get to be in public, but you want your guys behind closed doors.

MR. SNOW: There are -- in this particular case, the Department of Justice -- the Congress does have legitimate oversight responsibility for the Department of Justice. It created the Department of Justice. It does not have constitutional oversight responsibility over the White House, which is why by our reaching out, we're doing something that we're not compelled to do by the Constitution, but we think common sense suggests that we ought to get the whole story out, which is what we're doing.


Update: Steve Benen provides a counterpoint: "...based on Snow’s comments today, this isn’t the executive privilege argument, this is the executive privilege argument on crack."

OK, just for the record, I think this is the final answer on this question of an 18-day gap in the Justice Department emails.

The gap supposedly occurred between November 15, 2006 when the Justice Department asked for White House approval for the purge plan, and December 4, when the White House gave the green light. DOJ spokesman Brian Roehrkasse has responded that it's less a gap than a "lull."

In any case, here are all the emails that readers have found in the interim:

Yesterday, we turned up a November 29th email concerning a DoJ evaluation of U.S. Attorney for San Francisco Kevin "Company Man" Ryan.

Thinkprogress turned up an email chain between DoJ officials regarding obscenity prosecutions between November 20th and the 22nd.

Here's another email from December 1 with an exchange between a DoJ official and former Karl Rove aide Tim Griffin, about when Griffin would start work as the U.S. Attorney for Little Rock. We've also found a similar email between the same two on November 16th.

So that's that. Four email exchanges over the 18 day period.

Now, of course, the really interesting email traffic in this period would have been within the White House. But the administration is determined not to turn that over.

The Hill had an interesting take on the looming legal battle between the White House and Congress this morning:

In an e-mail dated Nov. 15, 2006, Kyle Sampson, former chief of staff to Attorney General Alberto Gonzales, asked then-White House Counsel Harriet Miers and her deputy, William Kelley, whether he had the green light to go forward with the firing plan.

Miers responded that she was “not sure whether this will be determined to require the boss’s attention.” Her e-mail ended with the words: “We will see. Thanks.”

Sampson, who resigned last week, responded with a critical question: “Who will determine whether whether [sic] this requires the President’s attention?”...

The e-mail exchange is particularly relevant to Bush’s case because the Supreme Court has provided only limited protection for executive privilege. It acknowledges the need to protect communications between high-ranking government officials and those who advise and assist them, but it has also ruled that the public interest can outweigh that need in “non-military” and “non-diplomatic” discussions. Critics of the U.S. attorney firings argue that Bush’s case for executive privilege would be significantly weaker if his aides never discussed the plan for the firings with him.

In response to a barrage of questions from reporters yesterday, White House spokesman Tony Snow said only that Bush had “no recollection of [the firings] ever being raised with him.”


Here's The Washington Post this morning on what happens next:

If the White House refuses to comply, the judiciary committees will meet in coming weeks to decide whether to issue citations for contempt of Congress. If they do, the full Senate and House would have to follow suit.

That would set in motion the extraordinary spectacle of Congress enlisting the U.S. attorney for the District of Columbia to impanel a grand jury to seek the indictment of administration officials over their refusal to testify on the firings of eight of his colleagues.

Constitutional scholar Tony Snow on ABC this morning:

The executive branch is under no compulsion to testify to Congress, because Congress in fact doesn't have oversight ability. So what we’ve said is we’re going to reach out to you – we’ll give you every communication between the White House, the Justice Department, the Congress, anybody on the outside, any kind of communication that would indicate any kind of activity outside, and at the same time, we’ll make available to you any of the officiels you want to talk to …knowing full well that anything they said is still subject to legal scrutiny, and the members of Congress know that.

Mark it on the calendar. The Senate Judiciary Committee wants to hear from Kyle Sampson (aka "the fall guy"), Alberto Gonzales' recently resigned chief of staff, at an open hearing next Thursday.

In a letter sent today to Sampson's lawyer signed by committee chairman Patrick Leahy (D-VT) and ranking member Arlen Specter (R-PA), the committee requested Sampson's "assurance" that he "will appear voluntarily at that time and that a subpoena will not be necessary." The committee has already voted to authorize such a subpoena last week.



Sampson will be the sole witness at the hearing.

He makes a point. Sure, his leadership at the Justice Department has perverted the rule of law in an attempt to turn the nation's top law enforcement officials into agents of the Republican Party... but think of the children.

It looks like the high level Republican official convicted for his role in the New Hampshire phone jamming might get off on a technicality.

An appeals court yesterday reversed the conviction of James Tobin. Tobin has been sentenced to 10 months in prison, 2 years probation, and a $10,000 fine, but has stayed out of prison during the appeal.

In a decision that turned on the technicalities of the statute under which Tobin was convicted, the First Circuit Court of Appeals remanded the case to the district court to hash out the issue. It was not a total victory for Tobin's lawyers, who had sought an acquittal.

But a lawyer friend describes the decision as a major hit to the prosecution:

OK, I read it. This is a big deal, more than just appellate ping pong.

The conviction is overturned because of flawed jury instructions. So the government would have to retry Tobin, but the language of the ruling pretty strongly suggests that the Circuit Court is not convinced that the statute applies here, a position the district court is likely to consider carefully in entertaining any motion from Tobin to dismiss.

If I were a prosecutor, I'd be hard-pressed to retry the case. Even if you managed to get the case to trial again in front of the district judge, you have a very skeptical circuit court waiting for another appeal.

Tobin may very well walk.


You can read a copy of the decision here. And this is an invitation for you lawyers out there to weigh in in the comments.

There you go. The Senate Judiciary Committee just voted to authorize the issuance of subpoenas for White House officials. As with the House committee, there's going to be one last round of negotiations before the committees pull the trigger.

And the two parties have a long way to go in those negotiations. Here, for instance, is Senate Judiciary Chairman Patrick Leahy's (D-VT) characterization of the White House's offer for Karl Rove and other White House officials to testify behind closed doors, not under oath, and without a transcript: "What they are offering is nothing, nothing, nothing."

Here's the video:

Prosecutors Says Bush Appointees Interfered "The leader of the Justice Department team that prosecuted a landmark lawsuit against tobacco companies said yesterday that Bush administration political appointees repeatedly ordered her to take steps that weakened the government's racketeering case. Sharon Y. Eubanks said Bush loyalists in Attorney General Alberto R. Gonzales's office began micromanaging the team's strategy in the final weeks of the 2005 trial, to the detriment of the government's claim that the industry had conspired to lie to U.S. smokers." (Washington Post)

Read More →

It's almost too perfect. The only U.S. attorney fired by the administration in December who undeniably had performance issues was begrudingly added to the list at the last minute -- and only then because of a federal judge's threat that he would go to Congress with complaints about the prosecutor's performance.

The Los Angeles Times tells the story of San Francisco's Kevin Ryan today, who, as the scandal over the firings began to simmer early this year, telephoned the Justice Department to assure them that he's still a "company man."

Unlike seven other fired federal prosecutors who may have run afoul of the administration for political reasons, San Francisco U.S. Atty. Kevin Ryan was a team player for Bush and had influential Republican support. A friend of the president even went to bat for Ryan after his firing.

"You would have to know Kevin," said UC Hastings College of the Law professor Rory Little. "You can't find a stronger supporter of the Bush administration agenda."

His tenure, however, was plagued by morale problems and accusations that he was a bad manager. A number of the office's most experienced lawyers left....

Even with the unrest, Ryan's support in Washington held during the first few months that planning for the ousters was underway. In an e-mail from D. Kyle Sampson, the former chief of staff to Atty. Gen. Alberto Gonzales, to Harriet Miers in March 2005, Ryan was in a category described as "strong U.S. Attorneys who have produced, managed well, and exhibited loyalty to the President and Attorney General." Other U.S. attorneys who were later fired were listed in a column recommending termination.

The following January, Sampson added Ryan to a list of federal prosecutors who might be removed based on performance evaluations. But he was left off later firing lists in September and November, e-mails show.


Ryan only was added to the list in early December, after a federal judge warned the Justice Department that she was "going to ask members of Congress to get her a copy of the blistering evaluations the department had done of Ryan earlier that year." The emails strongly suggest that Ryan was fired in order to prevent that from happening.

Just let that sink in. In the only case where there was a strong case for firing, the DoJ had to be extorted to do it.

It was not always that way at the DoJ. Remember that, before he left in August of 2005, then-Deputy Attorney General James Comey* generated his own list of U.S. attorneys to be fired. Only his list was completely different from the list finally generated by Alberto Gonzales' deputy, Kyle Sampson -- save one name: Kevin Ryan.

U.S. News explained the discrepancy:

In principle, [a former Justice Department official] says, Comey was not opposed to removing incompetent people.

However, Comey's definition of incompetence turned out to be quite different from Sampson's and had nothing to do with politics, says the former official.


*Update: This erroneously read "Paul McNulty" earlier, who's the current Deputy Attorney General.

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