Hans von Spakovsky

Spakovsky Finds More DOJ Politicization: Brazile Speech On .... Women's Achievements!

Zachary Roth | March 26, 2009, 6:53PM

One the one hand: Firing US attorneys because they won't bring politically motivated prosecutions. On the other: inviting Donna Brazile to speak at a "Women's History Month" event.

Pretty much the same thing, right?

That's what voter suppression guru and TPMmuckraker favorite Hans Von Spakovsky is arguing. In a post on the National Review, Von Spakovsky notes that the Justice Department has invited all employees to attend an upcoming speech by Brazile, the noted Democratic party strategist.

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Barack Obama

Does Obama's Approach To State Secrets Ape Bush's?

Zachary Roth | March 25, 2009, 1:04PM

Is the Obama administration aping its predecessor by taking a dangerously broad view of state secrecy, enabling them to avoid revealing information about warrantless wiretaps and other controversial tactics in the war on terror?

The Washington Post raises the question today, but doesn't provide much of an answer.

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Torture

Report: More OLC Torture Memos To Come

Zachary Roth | March 23, 2009, 1:52PM

It sounds like we could soon be getting a look at a few more of those Bush administration legal opinions justifying the use of water-boarding and other "harsh interrogation techniques" for use in the War on Terror.

Newsweek reports that the White House is moving to declassify and release three of those memos, written by Justice Department lawyers in May 2005. In doing so, President Obama is siding with his attorney general, Eric Holder, over the objections of current and former CIA officials, who argue the disclosure could compromise "sources and methods". Ex CIA director Michael Hayden is said to be "furious" about the decision, and to have tried unsuccessfully to intervene directly with Obama officials.

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AIG

Cassano's Lawyer Is White Collar Crime Expert

Zachary Roth | March 19, 2009, 6:31PM

We've told you that Joe Cassano, who ran the AIG unit that made those credit default swaps, has hired a lawyer in connection with an ongoing Justice Department investigation.

And from the looks of the lawyer in question, Cassano is taking the charges very seriously indeed.

F. Joseph Warin, who works out of the Washington, DC office of the prestigious Los Angeles-based law firm Gibson, Dunn, & Crutcher, is, according to his bio, a former assistant US Attorney who specializes, perhaps unsurprisingly, in white collar crime and securities enforcement, and chairs the firm's White Collar Defense and Investigations Practice Group*.

Investigators are reported to be examining, in particular, whether Cassano and other AIG execs committed fraud by intentionally making misleading public statements about the firm's level of exposure to losses on its credit default swaps.

Warin didn't return a call from TPMmuckraker. But his assistant asked, unprompted, whether we were calling about Cassano.

Sounds like he's getting a lot of calls.

*This sentence has been corrected from an earlier version, which incorrectly reported that Gibson, Dunn is based in Washington, DC.

AIG

Is Cassano Vulnerable To Fraud Charges That Felled Ebbers, Lay?

Zachary Roth | March 19, 2009, 2:51PM

Yesterday we laid out some preliminary evidence that AIG execs -- led by Joseph Cassano, who ran the firm's financial products unit -- may have committed criminal fraud in connection with those credit default swaps that brought the company down. And as we noted, federal investigators have been probing that very question.

A former federal fraud prosecutor confirmed to TPMmuckraker today that criminal fraud occurs when someone willfully misstates the facts about a company's position in any public statement -- such as an SEC filing, an earnings release, a presentation to investors, or even a press conferences -- and when there's a clear financial motive for doing so. The former prosecutor further confirmed that the facts of the AIG case as currently known -- in which Cassano and other AIG execs made what turned out to be incorrect public statements, which had the effect of concealing from investors the company's true exposure to losses on its swaps -- could potentially lead to such charges, but declined to go further without access to the details of the investigation.

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Bradley Schlozman

DOJ: We're Reviewing Decision Not To Prosecute Schlozman

Justin Elliott | March 17, 2009, 5:03PM

The Bradley Schlozman saga might have some life left in it, yet.

The Justice Department is reviewing a decision made earlier this year under the Bush Administration not to charge Schlozman, the former official who was found by an Inspector General report to have made false statements to the Senate about whether he considered political affiliations in hiring.

Read more »

Barack Obama

Justice Withdraws 'Enemy Combatant' Definition For Gitmo Detainees

Zachary Roth | March 13, 2009, 4:14PM

In a move that represents both a formality and a historic gesture, the Obama administration has announced that it's withdrawing the designation of "enemy combatant" for Guantanamo detainees. The Bush administration had drawn widespread criticism for its use of that designation, which allowed it to deny detainees rights they otherwise would have been entitled to.

In a press release, the Justice Department said it was submitting a new standard to hold detainees at Gitmo. Rather than relying on the president's authority as commander-in-chief, the department explained, the new standard "draws on the international laws of war to inform the statutory authority conferred by Congress."

It also said that the governent is conducting a review of detainee detention policy which could lead to "further refinements."

President Obama has already announced this intention to close Gitmo within the year. In a sense, today's announcement is an equally important step in winding down the "War On Terror" concept that the Bush administration announced, and shifting to an approach that sees the fight against terrorism as an effort to be conducted within the bounds of international and domestic law.

In other words: change we can believe in.

Bernard Madoff

Madoff Pleading Guilty This Morning, But Not Playing Ball On Conspiracy

Zachary Roth | March 12, 2009, 9:13AM

The Bernard Madoff probe could be expanding, as we told you yesterday. But it doesn't look like prosecutors are getting any help from the man himself.

Bloomberg reports that Madoff, who will plead guilty in a Manhattan federal courthouse today, has not agreed to a plea deal, because prosecutors were demanding he admit to a conspiracy, meaning admitting he worked with others.

Madoff, 70, will plead guilty to all 11 counts he faces, and could receive up to 150 years in jail.

Prosecutors have not at this point alleged a conspiracy, in which two or more people agree to commit an illegal act, nor have they charged anyone except Madoff. But according to Bloomberg's sources, they have said Madoff didn't act alone. And in court documents, they alleged he told employees to create false account documents and trade confirmations, and to create false financial statements to fool regulators.

The Daily Beast reported Tuesday evening that the investigation had widened to include co-conspirators, but it remain unclear exactly what that means, or what evidence prosecutors have compiled.

Bernard Madoff

Is Madoff Probe Expanding?

Zachary Roth | March 11, 2009, 2:22PM

Bernard Madoff is set this week to plead guilty to orchestrating a massive Ponzi scheme. But could we be in line for more guilty pleas before this is all over?

The Daily Beast reports:

[T]he [Madoff] investigation ... has broadened to include a number of suspected co-conspirators, according to federal officials involved in the case.

The Daily Beast story -- written by Lucinda Franks, whose byline identifies her as a Pulitzer-Prize winning journalist who was formerly on the staff of the New York Times -- also reports that, according to sources, "several members of Madoff's inner circle transferred assets to their wives, transactions thought to be laundered through an English bank."

There are said to be three groups of possible co-conspirators, who could potentially be charged either criminally by the Justice Department, or civilly by the SEC.

In the first group are employees of Madoff's firm who concocted false trades and sent out phony statements to thousands of unsuspecting clients.

The second group is comprised of principals in feeder funds such as Cohmad Securities Corp. and Fairfield Greenwich Group, which funneled investor dollars to Madoff and received large fees for steering this business. If they were aware of Madoff's fraud, they could face criminal charges; if they were not, they could be hit with civil charges for a lack of due diligence.

The third group is the target of an investigation that's still in its early stages into money laundering through British banks, in which US and British authorities are cooperating. This group consists of solicitors, accountants, and others in London who may have assisted Madoff in transferring funds from client accounts to a Madoff entity that lists Ruth Madoff, brother Peter Madoff, and sons Mark and Andrew Madoff among its board members.

It's not clear from any of this that any specific members of Madoff's family, or his inner circle, are in immediate legal jeopardy.

But the Wall Street Journal appears to be thinking along similar lines (sub req). It notes:

Prosecutors alleged Tuesday that Mr. Madoff hired numerous employees with "little or no prior pertinent training or experience in the securities industry" and caused them to "communicate with clients and generate false and fraudulent documents."

Its report doesn't go as far as the Daily Beast's. The Journal says it's still unclear whether prosecutors believe these people knew they were involved in a fraudulent scheme, and doesn't explicitly say that the investigation has broadened beyond Madoff himself.

But it's noticeable that the paper does take the time to lay out what's known about the possible involvement in the scheme of five of Madoff's relatives and associates -- including his wife Ruth, who has hired her own lawyer, and his brother Peter, who was the chief compliance officer for Madoff's firm.

With Madoff's guilty plea soon to be safely in the bag, are these reports an indication of where prosecutors are going next?

Don Siegelman

Rove On Siegelman Answers: Check My Website

Zachary Roth | March 9, 2009, 12:31PM

Over the weekend, Karl Rove talked a little more with Fox News about his impending testimony on the US Attorney firings and the Don Siegelman case.

He denied, as he has before, that there had been inappropriate political involvement in the firings. And he even appeared to suggest that, particularly in regard to the Siegelman matter, there was less need for his testimony because he has already responded to questions on his website, Rove.com.

Here's the video:

Don Siegelman

Siegelman: "The Fight Will Continue"

Zachary Roth | March 6, 2009, 3:53PM

Don Siegelman has responded to the appeals court ruling earlier today that upheld most of the charges of which he was convicted.

In a blast email message to supporters, Siegelman wrote:

I am disappointed, but not discouraged. The fight will continue.

He added:

My family and I are deeply appreciative of the outpouring of support and prayers. Your words and actions keep our spirits lifted and our resolve strong. We will get through this, and we will win.

Don Siegelman

Court: No Jury Misconduct In Siegelman Case

Zachary Roth | March 6, 2009, 1:51PM

So what's the significance of the court ruling upholding most of the bribery and corruption charges on which former Alabama governor Don Siegelman was convicted?

Siegelman's appeal wasn't primarily focused on the allegations that his prosecution was politically motivated. (Bill Canary, the husband of Leura Canary, the US Attorney on the case, was a state GOP operative and close associate of Karl Rove, who had run the campaign of Siegelman's gubernatorial opponent.)

Still, today's ruling did touch tangentially on that set of issues. One of Siegelman's arguments on appeal was that there had been inappropriate contacts between jurors and prosecutors during the trial. That claim was of a piece with several allegations of prosecutorial misconduct detailed in an internal DOJ report -- including evidence that Leura Canary kept advising junior prosecutors on the case, even after recusing herself.

But the court appears to have rejected that claim, upholding a district court's opinion that no significant misconduct occurred.

As for Rove's alleged ties to the prosecution -- a witness has given sworn testimony that Rove was involved -- we'll hear his side of the story in the coming weeks, when he sits down with the House Judiciary committee to talk about both Siegelman and the US Attorney firings.

Don Siegelman

Siegelman Appeal: Court Reverses Two Counts, But Upholds Others

Zachary Roth | March 6, 2009, 1:12PM

The court that's hearing Don Siegelman's appeal of his conviction on bribery charges has reversed two of the counts of which the former Alabama governor was found guilty -- but upheld several others.

In an order issued today, a US appeals court reversed two counts related to Richard Scrushy's activities while on the state board to which Siegelman appointed him.

However, it upheld the several charges related to Siegelman's appointment of Scrushy to the board in the first place, which was found to have come in exchange for campaign contributions -- the heart of the case against Siegelman.

The court also ordered a new sentencing hearing, in light of the reversal of the two counts. It's unclear as yet how those reversals will affect Siegelman's sentencing.

We've put in calls to Siegelman and his lawyers, and will be back with more soon.

Karl Rove

Rove Lawyer: Testimony Won't Happen For "Several Weeks"

Zachary Roth | March 6, 2009, 12:24PM

So when exactly will Karl Rove have his big sit-down with the House Judiciary committee to reveal what he knows about the White House's involvement in the US Attorney firings?

According to Rove's lawyer, Robert Luskin, not for "several weeks." That's how long it will likely take, Luskin told TPMmuckraker, for both Rove and the committee to review the relevant documents and schedule the testimony. Luskin declined to give a more specific time frame.

The agreement securing Rove's testimony, announced Wednesday between Congress and the Bush administration, acknowledged this need for deliberation, declaring: "The interviews will be conducted as soon as possible consistent with needed preparation time and the availability of the witnesses and their counsel."

But Luskin did defend Rove's comments to FoxNews.com, published yesterday, in which he warned of a "show trial" and said that Democrats "would love to have me barbecued."

Arguing that Rove had legitimate concerns about the fairness of the process, Luskin referred to a comment made about Rove by Judicary chair John Conyers -- "someone's got to kick his ass." Luskin also said that Speaker Nancy Pelosi had told Rolling Stone that Rove might have to go to jail. (In fact, Pelosi said she foresaw Rove being prosecuted.)

"If you were the subject of that, you'd worry about the process too," said Luskin.

Luskin also confirmed to TPMMuckraker that he had played no role in the agreement, and was not kept closely informed about the progress of negotiations.

Bradley Schlozman

Schloz-Backed Voter Fraud Lawsuit Bites The Dust

Zachary Roth | March 6, 2009, 10:47AM

Another nail in the coffin for those bogus GOP claims of voter fraud...

Remember how Todd Graves was fired as US Attorney for the western district of Missouri, after he wouldn't go along with a Bradley Schlozman-backed effort to sue Democratic state officials for failing to purge ineligible voters from the rolls, alleging that this failure could open the door to rampant voter fraud? The Bushies then moved Schlozman himself into Graves' position as US Attorney so that he could push the case personally.

Well, the case has quietly dragged on, after being dismissed by one court, then reinstated by another. But yesterday, lawyers for the Obama Justice Department asked a judge to drop the suit.

There wasn't much doubt by this point about the suit's bogusness, especially given what we've learned about Schlozman's politically motivated approach to his work both at main DOJ and as US Attorney. But now it's more or less official.

Another Republican claim of voter fraud bites the dust.

Barack Obama

The Scudder Memo: Half A Loaf Better Than None?

Zachary Roth | March 5, 2009, 12:14PM

Here's one other key aspect of the Rove-Miers testimony agreement that's worth noting...

The agreement declares that the famous "Scudder memo" will be made available "for Committee review only". In other words, the committee won't get to keep a copy, nor will it be able to release the memo publicly.

That seems at first like a significant concession.

The Scudder memo, to refresh your memories, appears to be a key piece of evidence in the effort to get to the bottom of the White House's role in the firings. Michael Scudder, an associate White House counsel, was tasked by White House staff with conducting an internal inquiry fully documenting the White House's involvement in the affair. He interviewed numerous White House and DOJ officials, including Rove. In their report on the firings released last year, Justice Department investigators identified the Scudder memo as one of the most crucial documents to which they lacked access, that might have helped them uncover the truth.

But it's not quite that simple. In an emailed statement to TPMmuckraker, a committee source explained why the committee settled for being able to review the memo only:

The Scudder memo was identified by OIG/OPR as a critical document even they could not get, and we would not have accepted a settlement that did not get us full use of the document in the interviews. At the same time, we do respect the need for White House lawyers to investigate rising controversies, and so we think the agreement works a fair compromise that won't limit our investigation or unduly burden any future Administration.

In other words, it sounds like one or both of the Bush and Obama White Houses were concerned, perhaps legitimately, about maintaining the ability to conduct internal reviews of controversial issues with the confidence that the results will remain confidential. And the committee felt willing to compromise on that point, as long as it was given adequate time to review the memo before it questioned Rove and Miers.

And of course, when transcripts of the testimony are released, we'll likely learn the key facts included in the memo anyway-- since they'll presumably be included in the committee's questioning and in the witnesses' responses.

On the related subject of the Obama White House's role in the deal, here's the cover letter that went with the agreement, written by Obama White House counsel Gregory Craig, and sent to Judiciary chair John Conyers, and President Bush's lawyer, Emmet Flood.

The letter, which notes that "both the Bush administration and the House Judiciary Committee have confirmed to me orally and in writing that they have accepted the terms of the enclosed Agreement."

In other words, as recent reports have suggested, the Obama White House was intimately involved in shaping this agreement -- a fact that would appear to explain the concern for maintaining the White House's ongoing ability to conduct confidential internal inquiries.

Justice Department

Anticipating Testimony, Rove Begins The Spin

Zachary Roth | March 5, 2009, 11:38AM

In his first public comments about the deal to secure his testimony on the US Attorney firings, Karl Rove told Fox News.com:

I understand they may be the hors d'oeuvres, but I'm the main course. Some Democrats would love to have me barbecued.

But beyond that eye-catching quote, something far sneakier came out of the interview. Rove used a curious argument to defend his role in the firings, saying:

If White House contact with the Justice Department is inappropriate, then what are we doing by allowing anybody who has anything remotely to do with the political campaign -- like the general counsel of the Obama White House -- to have any contact with the Justice Department?. I mean, we named the Justice Department building after the campaign manager of the 1960 presidential campaign - Robert F. Kennedy.

Leave aside the shot at Bobby Kennedy. Rove seems to be arguing that the White House's coordination with the Justice Department over the firings is comparable to any contact that the White House counsel might have with the department.

But as Rove knows, one of the concerns that the firings scandal brought up was the fact that the Bush White House allowed numerous White House staffers to talk to DOJ officials about the case. Democrats responded with efforts to limit those contacts -- and Rove certainly has never before expressed the view that those efforts didn't go far enough.

And while we're on the subject of Rove's mendacity, here's another point worth noting: Yes, Rove will testify under penalty of perjury. But he appears to have shown in the past that he's perfectly capable of dissembling even under such conditions.

In 2006, there was fevered speculation that Rove would be indicted for perjury for lying to Pat Fitzgerald's investigation into the Valerie Plame affair. Rove initially did not tell the grand jury about his conversation about Plame with Time's Matt Cooper (now at TPM!), claiming he forgot about it.

A New York Times story from 2006 lays out the details:

In his February 2004 testimony, Mr. Rove acknowledged talking to the columnist Robert D. Novak about Ms. Wilson, but he did not tell the grand jury about a second conversation he had about her with Matthew Cooper, a Time magazine reporter. Mr. Novak revealed her name and C.I.A. employment in a column on July 14, 2003.

Critics of the Bush administration have asserted that the revelation was retaliation against her husband, Joseph C. Wilson IV, a former diplomat who had publicly accused the administration of twisting some of the intelligence used to justify going to war with Iraq.

Mr. Rove later voluntarily told the grand jury about the conversation with Mr. Cooper, and said that he had forgotten about it in the rush of his daily business. But Mr. Fitzgerald has long been skeptical of Mr. Rove's account of his forgetfulness, lawyers in the case say.

So it wouldn't run counter to precedent if Rove again walked right up to the line of inviting a perjury charge when he testifies.

Something for Conyers and his team to be aware of, perhaps.

George Bush

Rove Can Claim Privilege Only When Asked About Bush

Zachary Roth | March 5, 2009, 10:16AM

We've obtained a copy of the agreement on Karl Rove and Harriet Miers' testimony about the US Attorney firings, and it appears to answer some of our initial questions.

Are any subjects off limits?

The scope of the interviews will be limited to: (1) facts relating to the evaluation of, decision to dismiss, or decision to replace the former U.S. Attorneys in question; the alleged decisions to retain certain U.S. Attorneys; and any allegations of selective prosecution related thereto; and (2) testimony or representations made by Department of Justice officials to Congress on the U.S. Attorneys matter. For the period beginning on March 9, 2007 (the date of the Committee's first written demand for information from the White House), interviews will not include the content of conversations involving: (i) Mr. Rove and members of the White House Counsel's office; or (ii) Ms. Miers and members of the White House Counsel's office. In the case of Mr. Rove, the interview also will include facts relating to the prosecution of Alabama governor Don Siegelman.

And when can Rove and Miers claim executive privilege?

As to official privileges, counsel will direct witnesses not to respond to questions only when questions relate to communications to or from the President or when questions are outside the scope of questioning set forth above.

You can see the whole thing here.

David Iglesias

Iglesias: Make Rove Testimony Public ASAP

Zachary Roth | March 5, 2009, 8:49AM

David Iglesias has responded to the news of a deal to secure Karl Rove and Harriet Miers' testimony about the firings of Iglesias and seven other US Attorneys.

In a statement to TPMmuckraker, Iglesias, whose firing as US Attorney for the district of New Mexico was deemed the "most troubling" by a Justice Department report released last year, said:

Today's agreement represents true progress in this matter which has been on-going for over two years. I trust that the initial private testimony of Mr. Rove and Ms. Miers will become public at the soonest possible date.

Justice Department

Pelosi: Rove Deal Is "Victory For The Constitution"

Zachary Roth | March 4, 2009, 6:40PM

House Speaker Nancy Pelosi and Senate Judiciary chair Pat Leahy just released separate statements on the agreement to secure Karl Rove's testimony.

Pelosi:

The agreement for Karl Rove and Harriet Miers to testify upholds a fundamental principle: no one is above the law and Congressional subpoenas must be complied with.

As public officials, we take an oath of office to uphold the Constitution. It is the institutional duty of Congress -- as an independent branch -- to ensure against abuse of power through meaningful oversight over the Executive Branch. When there are credible allegations about the politicization of law enforcement, the need for Congressional oversight is at its greatest.

In upholding our oaths of office, the House of Representatives was determined to preserve checks and balances -- the separation of powers that protects the rule of law. It brought action in court to enforce the Judiciary Committee's subpoenas, and won a major ruling by U.S. District Judge John Bates dismissing the extreme position of absolute immunity from Congressional oversight advocated by the Bush Administration for former Administration officials. Under this agreement, the precedent established by Judge Bates' historic ruling rejecting this extreme Bush Administration doctrine will be preserved.

Today's agreement is a great victory for the Constitution, the rule of law, and the separation of powers. I appreciate the strong leadership of Chairman John Conyers and the assistance of the Obama Administration.

Congress now has the opportunity to uncover the truth and determine whether improper criteria were used by the Bush Administration to dismiss and retain U.S. Attorneys.

Leahy:

I hope today's agreement will help to finally uncover the truth about the firings of U.S. Attorneys and the Bush White House cover up designed to shield from public view the inappropriate and illegal actions of the last administration.

It should not have taken until now to obtain testimony and documents from Bush administration officials connected to the investigation into the firings. Today's agreement leaves in place the court ruling that rejected the Bush administration's unprecedented and unfounded blanket claims of executive privilege and immunity. I rejected those claims as excessive and wrong in my ruling on President Bush's position over a year ago, and a bipartisan majority of the Senate Judiciary Committee ultimately found Karl Rove and former White House Chief of Staff Josh Bolten in criminal contempt.

I commend Chairman Conyers for the agreement reached today. I hope Congress, and the American people, will now finally hear long overdue answers to serious questions about political interference by the Bush White House in our nation's top law enforcement agency.

House Judiciary

The Rove Agreement: What We Still Don't Know

Zachary Roth | March 4, 2009, 6:24PM

The House Judiciary committee's announcement this afternoon of an agreement on Karl Rove and Hariet Miers' testimony about the US Attorney firings leaves a few key questions still unanswered:

1) The committee says: "It was agreed that invocations of official privileges would be significantly limited." Limited how? Exactly when can Rove and Miers invoke the privilege? The devil could very well be in that detail.

2) Did the committee agree to steer clear of any specific subjects?

3) Why won't Rove and Miers be under oath? It's true that they'll still be under penalty of perjury, and, when you're talking about a congressional investigation, that penalty is no different whether the subject is under oath or not. But in that case, why not just put them under oath to avoid any confusion? Presumably, because the Bush administration objected. And if it objected, then the oath question is meaningful. (Lawyers with relevant experience, feel free to weigh in here!)

We've called the Judiciary committee to put these questions to them, and will keep you posted.

John Conyers

Agreement Sets Stage For Rove Testimony On US Attorney Firings

Zachary Roth | March 4, 2009, 5:47PM

The House Judiciary committee just announced an agreement that it says will secure Karl Rove's testimony about the US Attorney firings.

The committee says in a press release that it has forged a deal with the Bush White House which will see Rove and Harriet Miers conduct transcribed interviews before the committee, under penalty of perjury, on the subject of what they know the about the White House's role in the firings. If the committee wants to follow up by with public testimony by requiring public testimony, it has reserved the right to do so.

By the terms of the agreement, Rove and Miers' ability to invoke executive privilege -- a privilege that President Bush has been claiming exists in perpetuity even after a president leaves office -- will be "significantly limited", though the announcement does not indicate the nature of those limitations.

The interviews won't technically be under oath. But since the criminal penalties for lying to Congressional investigators are the same whether or not the interview is conducted under oath, that's not seen as a major hurdle in getting to the truth.

In addition:

The Committee will also receive Bush White House documents relevant to this inquiry. Under the agreement, the landmark ruling by Judge John Bates rejecting key Bush White House claims of executive immunity and privilege will be preserved. If the agreement is breached, the Committee can resume the litigation.

And:

[I] the Committee uncovers information necessitating his testimony, the Committee will also have the right to depose William Kelley, a former White House lawyer who played a role in the U.S. Attorney firings.

Committee chair John Conyers called the agreement a victory:

I have long said that I would see this matter through to the end and am encouraged that we have finally broken through the Bush Administration's claims of absolute immunity. This is a victory for the separation of powers and congressional oversight. It is also a vindication of the search for truth. I am determined to have it known whether U.S. Attorneys in the Department of Justice were fired for political reasons, and if so, by whom.

Today was the deadline a court had set for the Obama administration to file a brief in the Miers-Bolten case, indicating whether or not it supports the Bush White House's claim of executive privilege. White House counsel Greg Craig has reportedly been working with the Judiciary committee and with former Bush White House officials to forge a deal.

Late Update: It's worth noting that TPMDC's Matt Cooper pointed to something like this outcome in a post from January...

John Yoo

More OLC Memos To Come?

Zachary Roth | March 3, 2009, 4:16PM

Some followup by the New York Times on the Bush-era OLC memos released yesterday by the Justice Department...

Department officials have told the paper that they may soon release more secret opinions about counter-terror tactics. Those that contain classified information will need to be cleared with other government agencies before they can be released.

Separately, some Democrats are jumping on the controversial memos to bolster their argument for a commission to look into the Bush administration's counter-terror policies.

Senate Judiciary chair Pat Leahy, who has called for such a commission, put out a statement Monday that praised the Justice Department for releasing "some of these long-secret opinions." But it also argued that a "fuller review of these policies" by the new Obama team was needed.

And Sen. Sheldon Whitehouse said: "These memos appear to have given the Bush administration a legal blank check to trample on Americans' civil rights. We need to get to the bottom of what happened at O.L.C. and ensure it never happens again."

Also, the Times picks up on that footnote in the Steven Bradbury memo that we highlighted earlier. Reports the paper:

In a footnote to Mr. Bradbury's Jan. 15, 2009, memorandum sharply criticizing Mr. Yoo's work, Mr. Bradbury signaled that he did not want his repudiation of the legal reasoning employed by Mr. Yoo to be used against Mr. Yoo as part of the ethics probe.

Mr. Bradbury wrote that his retractions were not "intended to suggest in any way that the attorneys involved in the preparation of the opinions in question" violated any "applicable standards of professional responsibility."

Steven Bradbury

Is Footnote In OLC Memo Designed To Protect Its Author?

Zachary Roth | March 3, 2009, 12:41PM

There's an interesting detail buried in those OLC memos released yesterday, that perhaps hasn't gotten the attention it deserves.

In the January 15, 2009 memo written by then-acting OLC head Steven Bradbury -- in which he repudiated many of the previous OLC memos that articulated an expansive view of presidential power in the war on terror -- there's a footnote stressing that the memo is not "intended to suggest in any way that the attorneys involved in the preparation of the opinions in question did not satisfy all applicable standards of professional responsibility."

Why would Bradbury have gone out of his way to make this point -- especially in the context of repudiating those opinions?

Perhaps because the Justice Department's Office of Professional Responsibility has been working on a report on whether OLC lawyers violated standards of professional responsibility when they approved harsh interrogation tactics like water-boarding. And, as Newsweek revealed last month, a draft of the report is sharply critical of three senior OLC lawyers in particular -- John Yoo, Jay Bybee, and Steven Bradbury.

The report's release was delayed after then-Attorney General Michael Mukasey and his deputy Mark Filip objected that responses from Yoo, Bybee, and Bradbury should be included. As of February 6, Attorney General Eric Holder had not yet reviewed the report, and it had not yet been turned over to Congress.

So the fact that the earlier memos have been repudiated could potentially still affect the OPR report's conclusions about the lawyers' actions. As a result, Bradbury would have had good reason to explicitly state in his recent OLC memo that the repudiation of the original opinions did not bear on issues of professional responsibility.

It'll be interesting to see, when the OPR report is released, whether its authors agree with that take.

John Yoo

Experts Weigh In On Bush Justice Memos

Zachary Roth | March 3, 2009, 11:53AM

So what to make of those Bush administration legal memos, formulating counter-terrorism policy, that the Justice Department released yesterday?

The key news seems to be that at least ten of the opinions issued by the department's Office of Legal Counsel in the early years of the War on Terror -- outlining an expansive view of executive power -- were later deemed flawed and ordered withdrawn. We had previously known that this had occurred with just two such opinions.

In one memo, John Yoo argued that during wartime, the president could ignore free speech protections and could order warrantless searches. In another, the Bush DOJ claimed that detainees could be sent to countries that commit human rights abuses, as long as the US did not intentionally seek their torture. Five days before Bush left office, both of these opinions and several others were repudiated in a separate "memorandum for the Files" by Stephen Bradbury, then the acting head of the Office of Legal Counsel. That document was also released yesterday.

Other Bush administration memos that were later withdrawn argued that the president could unilaterally abrogate foreign treaties; could ignore guidance from Congress in dealing with terrorist suspects being detained; and could conduct warrantless wiretapping.

Since the release of the memos yesterday, expert opinion has essentially been united in denouncing the opinions.

Walter Dellinger, who ran OLC during the Clinton administration tells the New York Times that the Bradbury memo "disclaiming the opinions of earlier Bush lawyers sets out in blunt detail how irresponsible those earlier opinions were."

Jennifer Daskal of Human Rights Watch speaking to the Washington Post, singles out the memo that allowed the administration to send detainees to countries that commit human rights abuses. "That is [the Office of Legal Counsel] telling people how to get away with sending someone to a nation to be tortured," Daskal said. "The idea that the legal counsel's office would be essentially telling the president how to violate the law is completely contrary to the purpose and the role of what a legal adviser is supposed to do."

Orin Kerr, a law professor at George Washington, focuses on the memo that gave the administration the power to conduct warrantless wiretapping. Writing on the blog The Volokh Conspiracy, Kerr calls the argument that FISA doesn't apply to national security issues -- which appears to be the memo's argument -- "an extremely lame analysis." He continues: "Much of the point of FISA was to regulate that."*

And Salon's Glenn Greenwald is particularly outraged by an opinion arguing that the president can deploy the US military inside the US, directed at both foreign nationals and US citizens. Greenwald calls this "nothing less than an explicit decree that, when it comes to Presidential power, the Bill of Rights was suspended, even on U.S. soil and as applied to U.S. citizens."

He concludes:

If this isn't the unadorned face of warped authoritarian extremism, what is?

* This paragraph has been corrected from an earlier version which reported incorrectly that the blog post was written by Eugene Volokh.