Harriet Miers

Judge Denies Stay; Miers Must Appear to Answer HJC's Subpoena

Kate Klonick | August 26, 2008, 2:22PM

A district court judge denied Harriet Miers and Joshua Bolten's request for a stay on their Congressional testimony pending the appeal of the recent decision in HJC v. Harriet Miers et al. The decision means that Miers will have to appear in response to the House Judiciary Committee's subpoena for testimony.

From the ruling:

Accordingly, the Court will deny the Executive's request for a stay. Hence, the Executive should respond to the document aspect of the subpoenas by producing non-privileged material and identifying more specifically the materials it is withholding on a claim of executive privilege.

But it is on Ms. Miers's appearance that the dispute principally focuses. This decision should not, however, foreclose the parties' continuing attempts to reach a negotiated solution. Both sides indicated that discussions regarding an accommodation have resumed.

The judge, the Honorable John Bates, has mentioned before that he would really appreciate it if these two parties tried to keep every little squabble out of the court room, and that seemed to be the gist of his ruling:

Had the litigants indicated that a negotiated solution was foreseeable in the near future, the Court may have stayed its hand in the hope that further intervention in this dispute by the Article III branch would not be necessary.

As it stands, however, the Court must decide the questions presented to it. But there is still ample time for the parties to reach an accommodation. The Court's July 31, 2008 Order does not compel Ms. Miers to appear at any particular date.

Technically, this leaves open the possibility of continued negotiations, but considering this administration's history of fighting subpoenas, we're not holding our breath for an out-of-court resolution.

Late update: House Judiciary Committee Chairman John Conyers (D-MI) has responded to the ruling:

"Today's ruling clearly rejects the White House's efforts to run out the clock on the Committee's investigation of DOJ politicization this Congress. I am heartened that Judge Bates recognized that the public interest in this matter is best served by the furtherance of the Committee's investigation," Conyers said. "The Committee intends to promptly schedule a hearing with Ms. Miers and stands ready as always to consider any reasonable offer of accommodation with the White House."

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Topics: Harriet Miers, House Judiciary, Josh Bolten, Justice Department

Justice Department

Illegally Hired Immigration Judges More Likely to Rule for Deportation

Kate Klonick | August 25, 2008, 5:29PM

In news that should surprise no one familiar with the Justice Department politicization under Monica Goodling and Jan Williams, a study conducted by the New York Times found that immigration judges installed during this period of illegal hiring were more likely than their peers to reject immigrants' bids for asylum.

According to the Times, of the 31 judges appointed during Goodling's tenure, only 16 had extensive enough records to support statistical analysis. Of those, nine rejected immigrant asylum seekers at a rate higher than other local judges, three were more likely to grant asylum, and four were in keeping with averages.

Collectively, the group was 6.6 percentage points greater in denying asylum than their combined local averages.

From the Times:

In Houston, for example, Judge Chris Brisack denied asylum in 90.7 percent of his cases, while other judges in that city averaged a 79.1 percent denial rate. Judge Brisack, a former Republican county chairman who also works in the oil business, did not return a call.

Garry Malphrus, the judge later elevated to the Board of Immigration Appeals, denied asylum 66.9 percent of the time, compared with an average denial rate of 58.3 percent among other judges at his court in Arlington, Va. Judge Malphrus, a former associate director of the White House Domestic Policy Council, did not return a call.

The highest gap belonged to Judge Earle Wilson. He worked first in Miami, where he denied 88.1 percent of asylum requests -- 9.8 percentage points higher than the local average. He then moved to Orlando, where his denial rate was 80.3 percent -- 29.2 percentage points higher than peers.

It wasn't but two weeks ago that Attorney Gen. Mukasey made the bold statement in a speech to the American Bar Association, that the Justice Department would not systematically remove all those hired during the DOJ's period of politicization.

"Two wrongs do not make a right," said Mukasey of the idea of dismissing those hired through the flawed process. "[T]he people hired in an improper way did not, themselves, do anything wrong. It therefore would be unfair - and quite possibly illegal given their civil service protections - to fire them or to reassign them without individual cause."

But even more interesting in the light of the Times report, is Mukasey's specific defense of IJs hired under Goodling's watch and his highlighting of one of the judges he had recently promoted:

One of the Immigration Judges identified by the joint report as having been hired through the flawed process was recently tapped - by the revised hiring process that gives no consideration to politics - to be a member of the Board of Immigration Appeals. Putting aside fairness to him, it would have ill served the public interest not to appoint him merely because those who first hired him had violated the civil service laws. Firing him and all those like him would be wrong, and it would be harmful to the Department and to the country.

In the same speech, Mukasey promised a "swift and unambiguous response" if anyone is "found to be handling or deciding cases based on politics, and not based on what the law and facts require."

The Times study certainly suggests that judges hired under this illegal process were likely to rule more harshly than their peers. It will be interesting to see if Mukasey considers these findings proof of "handling or deciding cases based on politics."

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Topics: DOJ Office Of The Inspector General, DOJ Office of Professional Responsibility, Justice Department, Michael Mukasey, Monica Goodling

Dick Cheney

Cheney Link to Stevens Case

Zachary Roth | August 25, 2008, 10:48AM

The corruption case against Sen. Ted Stevens (R-AK) is already yielding some interesting fruit.

Newsweek reported Saturday that, in a 2006 conversation secretly recorded by the FBI, Stevens and Bill Allen -- the oil-services executive who allegedly provided Stevens with $250,000 in financial gifts -- discussed how to get a pipeline bill through the Alaska legislature.

Stevens told Allen: "I'm gonna try to see if I can get some bigwigs from back here and say, 'Look ... you gotta get this done'." Two days later, Vice President Cheney took the unusual step of contacting Alaska lawmakers directly, urging them in a letter to "promptly enact" the legislation. Stevens confirmed to Newsweek that he had indeed asked Cheney to write the letter.

Newsweek notes that the former executive director of Cheney's energy task force had gone on to work as a lobbyist for BP, which would have built the pipeline. The magazine doesn't name the task force director, but it appears to be Andrew Lundquist. And it's worth pointing out that Lundquist -- who had worked as the Bush-Cheney campaign's energy expert in 2000, earning the nickname "Lightbulb" from the president -- has also worked as a top aide to Stevens.

Newsweek also reports that DOJ prosecutors did not include Cheney's letter in their motion and did not respond when the magazine asked why.

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Topics: Alaska, Bill Allen, Dick Cheney, Justice Department, Ted Stevens, Veco

Alberto Gonzales

Class Action Suit Against DOJ Grows, Names Gonzales and Goodling as Defendants

Kate Klonick | August 15, 2008, 12:18PM

Former Attorney General Alberto Gonzales and embattled former White House liaison Monica Goodling are among those newly named as defendants in a private class-action lawsuit against the DOJ.

The suit, Gerlich et al. v. Department of Justice, was orginally filed in response to the Inspector General's report on politicized hiring in the Attorney General's Honors Program. The report found that a number of DOJ officials, namely Esther Slater McDonald and Michael Elston, had broken the law in basing hiring decisions based on political affiliations.

The amended lawsuit expands the defendant list from only the Justice Department to specific individuals. Besides Gonzales and Goodling, Elston and McDonald are also named as new defendants in the case.

The suit also added five new plaintiffs.

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Topics: Alberto Gonzales, DOJ Office Of The Inspector General, DOJ Office of Professional Responsibility, Esther Slater McDonald, Justice Department, Michael Elston, Monica Goodling

Justice Department

Mukasey to Bar Association: "The System Failed"

Kate Klonick | August 12, 2008, 11:28AM

Attorney General Michael Mukasey dove right into the sensitive topic of the politicization of the Justice Department in his speech to the American Bar Association this morning in New York.

"I would like to talk to you today about a topic that I'm sure is of mutual interest," Mukasey began. "[N]amely, professionalism at the United States Department of Justice."

Calling the findings of the two recent reports by the DOJ Inspector General on politicization in the Justice Department "disturbing," Mukasey bemoaned the system for failing to stop the "active wrong-doing."

I want to stress that last point because there is no denying it: the system failed. The active wrong-doing detailed in the two joint reports was not systemic in that only a few people were directly implicated in it. But the failure was systemic in that the system - the institution - failed to check the behavior of those who did wrong. There was a failure of supervision by senior officials in the Department. And there was a failure on the part of some employees to cry foul when they were aware, or should have been aware, of problems.

Mukasey went on to describe the changes to the Justice Department and responded to critics complaints that those named in the OIG reports have suffered no consequences.

"Far from it," Mukasey said. "The officials most directly implicated in the misconduct left the Department to the accompaniment of substantial negative publicity. Their misconduct has now been laid bare by the Justice Department for all to see. . .To put it in concrete terms, I doubt that anyone in this room would want to trade places with any of those people."

Previously, there have been legislative requests to dismiss those hired at the DOJ during this politicized period -- an idea Mukasey called "unfair" today:

Other critics have suggested that we should summarily fire or reassign all those people who were hired through the flawed processes described in the joint reports. But there is a principle of equity that we all learned in the schoolyard, and that remains as true today as when we first heard it: two wrongs do not make a right. As the Inspector General himself recently told the Senate Judiciary Committee, the people hired in an improper way did not, themselves, do anything wrong. It therefore would be unfair - and quite possibly illegal given their civil service protections - to fire them or to reassign them without individual cause.

The full text of the attorney general's speech after the jump.

Read more »

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Topics: DOJ Office of Professional Responsibility, Justice Department, Michael Mukasey

Kyle Sampson

Waas: DOJ Probe Has Expanded to the White House

Kate Klonick | August 7, 2008, 5:21PM

Murray Waas confirmed today something we've suspected for a long time: that the Justice Department has widened the net in the Inspector General's U.S. attorneys firing probe to include allegations that senior White House officials made false statements to Congress.

From the Huffington Post:

The Justice Department investigation into the firings of nine U.S. attorneys has been extended to encompass allegations that senior White House officials played a role in providing false and misleading information to Congress, according to numerous sources involved in the inquiry.

. . . Federal investigators have obtained documents showing that Kyle Sampson, then-chief of staff to Attorney General Alberto Gonzales, and Chris Oprison, then an associate White House counsel, drafted and approved the letter even though they had first-hand knowledge that the assertions were not true.

The letter referenced was sent from the Justice Department to Congress on February 23, 2007 and denied Karl Rove's involvement in the replacement of fired U.S. Attorney Bud Cummins by Rove protege Tim Griffin.

Just a month later, however, the DOJ was forced to admit that the February letter had been "contradicted by Department documents."

Most notable in those "Department documents," was an email between Sampson and Oprison on December 19, 2006 in which Sampson wrote that getting Griffin appointed was "important to Harriet, Karl, etc." The email from Sampson, who was chief of staff to Alberto Gonzales at the time, directly contradicted the DOJ's earlier denial.

Sampson bumbled his way through an explanation of this discrepancy during his testimony to the Senate Judiciary Committee in March of 2007.

We pulled the video from our archives. Take a look:

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Topics: Justice Department, Karl Rove, Kyle Sampson

Harriet Miers

WH Seeks to Delay Answering Congressional Subpoenas

Kate Klonick | August 7, 2008, 2:38PM

Nothing can ever be easy with these two.

The Justice Department, on behalf of Harriet Miers and Joshua Bolten, filed its request for appeal today in the July 31 ruling in House Judiciary Committee v. Miers et al.

While the appeal is resolved, however, the DOJ also requested that the judge grant a stay on the subpoenas, allowing Miers and Bolten to continue to evade the House Judiciary Committee.

From the AP:

Without a quick stay of the ruling, Miers and Bolten may be forced to testify before an appeal can be heard, the two said in a court filing. Democrats have announced they would schedule hearings in September, at the height of election season.

"Whatever the proper resolution of the extraordinarily important questions presented, the public interest clearly favors further consideration of issues before defendants are required to take actions that may forever alter the constitutional balance of separation of powers," the Bolten and Miers request said.

A stay would also benefit Republicans, since the subpoenas expire at the end of the year, not long before Bush leaves office.

Late Update: Also today, White House Counsel Fred Fielding sent a letter to Sen. Patrick Leahy (D-VT), chairman of the Senate Judiciary Committee, saying that despite the court order last week, the White House will wait for the outcome of its appeal before responding to further subpoena request.

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Topics: Harriet Miers, John Conyers, Josh Bolten, Justice Department

Civil Rights Division

Spakovsky Subpoenaed in Civil Rights Department Probe

Kate Klonick | August 6, 2008, 3:28PM

Lifting the veil on one of the two remaining Justice Department OIG reports, Murray Waas for the Huffington Post reports that Hans von Spakovsky, among other former Justice Department lawyers, has been subpoenaed by the OIG to testify about politicization of the Civil Rights Division.

Investigators for the Inspector General have also asked whether [Brad] Schlozman, while an interim U.S. attorney in Missouri, brought certain actions and even a voting fraud indictment for political ends, according to witnesses questioned by the investigators. But it is unclear whether the grand jury is going to hear testimony on that issue as well.

One person who has been subpoenaed before the grand jury, sources said, was Hans von Spakovsky, who as a former counsel to the Assistant Attorney General for Civil Rights was a top aide to Schlozman.

As Waas points out in the article, the DOJ forcing former members of its own ranks to testify is an "extraordinary step."

Both Schlozman and Spakovsky are being investigated for violating civil service laws in making hiring decisions based on political affiliation.

Jason Torchinsky is also reported to have been subpoenaed, though sources tell Waas that Torchinsky is not under investigation and has been only asked for witness testimony.

Two previous reports by the OIG have both found that hirings were politicized at various points at the Justice Department. The first report showed the politicization of the Attorney General's Honors Program, while the second, released last week, focused on the politicized hiring surrounding Monica Goodling and others at the DOJ.

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Topics: Bradley Schlozman, Civil Rights Division, DOJ Office Of The Inspector General, Hans von Spakovsky, Justice Department

Michael Mukasey

Mukasey Names New Chief of Staff

Kate Klonick | August 6, 2008, 1:26PM

Attorney General Michael Mukasey has appointed Brian Benczkowski to serve as his chief of staff, replacing Brett Gerry the Justice Department announced today:

Benczkowski, 38, currently serves as chief of staff to Deputy Attorney General Mark Filip.

[He] will succeed Brett Gerry, who will be leaving the Department after more than four years in the Executive Branch, and who has served as the Attorney General's chief of staff since his confirmation.

. . . "I am happy that Brian Benczkowski has agreed to serve as my chief of staff," Attorney General Mukasey said. "Brian has been one of my closest advisers in the Department since my confirmation process, and his exceptional judgment and extensive experience in the Department will be of great value to me and to the Department in the upcoming months."

Regular TPMmuckraker readers might remember Benczkowski as a mouthpiece for the DOJ on the ambiguity of torture and the word "exclusive" as it pertains to FISA.

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Topics: FISA, Justice Department, Michael Mukasey, Torture

Anthrax

DOJ Plans To Close Anthrax Probe As Questions, Critics Mount

Andrew Tilghman | August 4, 2008, 2:00PM

The Department of Justice says it may close its investigation into the 2001 anthrax attacks -- and possibly release previously sealed court records -- as early as today.

The move comes as questions and criticisms of the FBI's handling of the case grow more intense and also less than a week after the suicide of the alleged key suspect in the case, government scientist Bruce Ivins.

Closing the investigation would send a signal that Ivins was guilty and acted alone. But last week's suicide has thrust the anthrax investigation back into the spotlight and prompted new questions about the unsolved case as well as public statements and press reports surrounding the attacks in the fall of 2001.

The AP reports:

Among the unanswered questions in the investigation is how Ivins could have created the fine anthrax powder that, distributed in the mail, killed five people and terrorized the nation. Ivins' lab didn't deal with powdered anthrax and there is disagreement over whether he could have created it -- and if he did, how he kept it a secret.

The New York Times reports that investigators lack some key evidence against Ivins, such as anything linking the scientist to the central New Jersey town where the anthrax letters were mailed. An unnamed source calls the case against Ivins "circumstantial" and said at least 10 other people from the lab at Fort Detrick, MD, had access to the same flask containing that anthrax, the Times reports.

In an article on Sunday, The Washington Post wrote that federal prosecutors may disband the grand jury that was hearing evidence against Ivins, adding that no other criminal charges are expected in the case.

A lawyer for Ivins, Paul F. Kemp, has consistently maintained his client's innocence.

Glenn Greenwald at Salon has been working overtime on this story for the past few days and lays out a reconsideration of the anthrax investigation, its press reports and its time line. He bring attention to the mounting pressure on ABC News to disclose the confidential sources behind its report in 2001, which stated that federal agents had evidence that the anthrax came from Iraq.

Greenwald also raises questions about Ivins' therapist, who came forward several days ago describing Ivins's homicidal thoughts.

In a statement today, former Sen. Tom Daschle (D-SD), who was a target in the attacks, criticized the FBI and said he has little faith in its investigation.

Finally, as we noted earlier today, evidence is emerging that White House officials may have pressured the FBI to tag Al Qaeda as a suspect during the initial weeks of the probe.

Late Update: After reports that federal investigators couldn't place Ivins at the New Jersey mailbox where the anthrax letters were dropped, sources at DOJ leaked the AP a new story this afternoon. Their best guess is that Ivins made the seven-hour round trip up to the Princeton area after work one night, possibly because he had a weird obsession with the Kappa Kappa Gamma sorority, which has a chapter up there.

That might have been enough to secure a grand jury indictment, but that sounds like a stretch for the jury to buy. We'll never know.

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Topics: Anthrax, Iraq, Justice Department

Harriet Miers

Conyers Tries to Talk Rove Down from Ledge of Contempt Proceedings

Kate Klonick | August 1, 2008, 2:31PM

Following the letter sent by Senate Judiciary Committee Chairman Patrick Leahy (D-VT), House Judiciary Chairman John Conyers (D-MI) sent his own demand for the testimony and documents following the ruling yesterday in House Judiciary Committee v. Harriet Miers et al.

In a letter to White House counsel Fred Fielding, Conyers called for "quick compliance" with the ruling and an answer to the subpoena issued to White House Chief of Staff Joshua Bolten for documents relating to the politicization of the Department of Justice.

Conyers also wrote to Miers attorneys, reminding him that the ruling meant his client was "legally required to testify" in answer to Congress' subpoena.

Lastly, Conyers penned a missive to Robert Luskin, Karl Rove's attorney, informing him that his client had been held in contempt of congress by the House Judiciary Committee, but that in light of the recent decision, he hoped that it would not be necessary to carry out the contempt proceedings:

. . .[T]he "precise legal issue" raised by Mr. Rove's claim of immunity from our subpoena as a former White House official was before Judge Bates in Committee on the Judiciary v. Miers. Yesterday's decision in that case provides an unequivocal answer. . . In his letter to me of July 29, 2008, Committee Ranking Member Lamar Smith also noted the pendency of the District Court case and stated that "mr. Rove assuredly will abide by the court's decision when it issues." I trust that this is correct and that there will be no further need to enforce the subpoena through contempt proceedings in the full House, and have directed my staff to contact you immediately so that we can make arrangements for Mr. Rove to testify in September.

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Topics: Harriet Miers, House Judiciary, John Conyers, Justice Department, Karl Rove, Senate Judiciary Committee