The phony flier that surfaced recently in Virginia, instructing Democrats to vote on Wednesday November 5th, has drawn the attention of House Judiciary Chair John Conyers.

As we wrote Monday, the flier, which surfaced in largely African-American areas of the Hampton Roads region, is designed to look like an official communication from the state board of elections, even reproducing the board's logo. It informs readers that becasue of expected high turnout on election day, November 4th, Democrats have been asked to vote November 5th.

Election day, of course, is November 4th for everyone.

Conyers wrote to Attorney General Michael Mukasey, asking him to take action. Conyer's letter points out that, because there are legitimate concerns in Virginia about over-crowded polling places, and because the flier is designed to look like it comes from the state election board, it "has enough of a ring of truth to confuse voters and suppress turnout."

The letter goes on to call the effort "an echo of the darkest days of our struggle for civil rights."

Virginia election officials have said that state police are already looking into the flier's provenance.

Monday did not bring good news for the House Judiciary Committee. A federal appeals court has delayed the testimony of Harriet Miers and Josh Bolten, in the latest ruling (pdf) in the epic back and forth between the executive and legislative branches. The decision pushes the issue into the next administration.

From the AP:

Time will run out on this year's congressional session before the battle between two branches of government can be resolved, according to the ruling by a three-judge panel on the U.S. Court of Appeals for the District of Columbia Circuit.

The ruling essentially pushes any resolution on the politically charged case until next year.
"The present dispute is of potentially great significance for the balance of power between the legislative and executive branches," wrote the panel of judges, two of whom were appointed by Republicans.

Still, the judges wrote, "Even if expedited, this controversy will not be fully and finally resolved by the judicial branch ... before the 110th Congress ends on January 3, 2009. At that time, the 110th House of Representatives will cease to exist as a legal entity, and the subpoenas it has issued will expire."

HJC Chairman John Conyers (D-MI) has already indicated that the committee will appeal, but did not give a timeline.

"While the delay caused by this incorrect decision is unfortunate, at the end of the day, I believe Judge Bates' decision will be affirmed and that Harriet Miers and other key witness will appear before the House Judiciary Committee, and that we will get to the bottom of the Bush administration's disgraceful politicization of the Justice Department," said Conyers in a statement.

John Conyers (D-MI), chair of the House Judiciary Committee, released a statement today calling for the appointment of a special prosecutor from outside the Justice Department, to continue to investigate the U.S. attorney firings.

"We assume that Attorney General Mukasey will heed the report's call for further investigation, including determining whether criminal offenses were committed, and urge him to appoint a special counsel from outside the Justice Department to work with the Inspector General so the investigation will have the credibility and independence that it needs," Conyers said in a statement this morning.

In addition, because of Congress' impending adjournment, Conyers called an HJC hearing for this coming Friday to discuss the issues raised in the recently released IG report.

In reaction to recent claims that the GOP is attempting to block voters in Michigan whose homes have been foreclosed on, one of the state's representatives is speaking out and demanding action from Republicans.

Rep. John Conyers, chairman of the House Judiciary Committee, called on Sen. John McCain to "step forward now and halt the Republican Party's efforts to profit politically from the economic misery of others."

"The Republican Party has had a long record of blocking eligible voters from voting," Conyers wrote. "In the past two Presidential elections, the country witnessed appalling efforts to limit voter participation in Ohio, Florida and throughout the country. It is beyond disgraceful that the Republican Party now seems to be targeting those who are suffering the most. . . It should surprise no one that the people who gave us the worst economy since the Great Depression would now want to prevent those victimized by this economy from voting in the coming elections."

Separately, Conyers and 22 of his Democratic colleagues in the House, also joined Senate Democrats, who earlier this week demanded an investigation from the DOJ into what has become known as the "lose your house, lose your vote," after the title of the article in the Michigan Messenger which sparked awareness of the GOPs plan to challenge voters registered at addresses on foreclosure lists.

Finally! Congress is back from va-cay, and they've got lots of work to do before years end and House Judiciary Committee Chairman John Conyers (D-MI) is wasting no time.

Tomorrow morning, the Committee is scheduled to consider a citation for contempt for Attorney General Michael Mukasey for his failure to supply documents in accordance with the subpoena issued in late June.

The meeting is set to start at 10:15 EST. We'll be sure to keep you updated on what happens.

The latest in the back and forth between Harriet Miers and the House Judiciary, from the AP:

A federal appeals court has blocked former White House counsel Harriet Miers from testifying about the firing of nine U.S. attorneys until judges decide whether they have authority to wade into a battle that pits Congress against the Bush administration.

Miers is supposed to testify at a House Judiciary Committee hearing next Thursday.

. . . The three-judge panel gave House lawyers until 4 p.m. next Wednesday to make its case on why the court should uphold an earlier ruling forcing Miers to testify. The Justice Department must submit its own argument -- why she should not -- two days earlier, on Monday.

We have the order here, full text after the jump.

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Could the White House be getting desperate in its dramatic legal battle with the House Judiciary Committee? It certainly looks that way, as they scramble to delay Harriet Miers' congressional testimony after the court's recent denial of their request for a stay.

Yesterday, HJC Chairman John Conyers (D-MI) set Miers testimony for September 11, but the administration isn't going down without a fight.

From the AP:

The Bush administration had already indicated it would appeal but Justice Department lawyers said Wednesday that they will ask the court to step in quickly and temporarily put Miers' appearance on hold while the appeal plays out. It's a risky move for an administration that has spent years trying to strengthen the power of the presidency.

Yesterday, TPM's David Kurtz caught up with Senate Judiciary Chairman Patrick Leahy (D-VT) at the Democratic National Convention and got his take on the new developments in the Miers case unfolding at the HJC.

Leahy made it clear that this battle wasn't just going to end in the event of an Obama presidency. "I remind them," he said, "I'll still be chairman next year."

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."

Things are moving right along in the wake of the HJC v. Miers decision last week.

White House Counsel Fred Fielding has already responded to Rep. John Conyer's (D-MI) letter requesting "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.

Fielding (predictably) demurred, citing the recent motion for appeal, but he did comply to Conyer's other request: a meeting between the two parties to try to "work cooperatively to resolve these issues." From Fielding's letter to Chairman Conyers:

However, the fact that the Executive has noticed an appeal in this matter does not signify that we think further litigation is the exclusive path forward. . . this Administration has responded to more than 650 Congressional inquiries and investigations, and through negotiation and accommodation with Congressional committees has been able to resolve all but a very few of them. . . Toward that end, and hopefully as a prelude to meaningful discussions between us, I propose that members of our respective staffs meet as early as next week to re-commence discussing possibilities for reaching an accommodation between the Branches in this matter.

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.

Now that we have a partial decision on House Judiciary Committee v. Harriet Miers et al. , maybe it's a good time for a little refresher on why the HJC wanted White House documents and Miers' testimony in the first place.

Miers name came up repeatedly over the course of congressional investigations into the U.S. attorney firing scandal, over her communications with former Chief of Staff to the Attorney General, Kyle Sampson.

Those communications revealed that Sampson and Miers began exchanging emails discussing the dismissal of U.S. attorneys, almost two years before those attorneys were purged from the department in December 2007. In March 2006, Sampson famously sent an email to Miers, ranking all of the sitting U.S. attorneys in order of "loyalty to the Attorney General."

Though Miers initially suggested that all 93 U.S. attorneys be dismissed, Sampson vetoed that idea, with the approval of the Attorney General, and arranged for limited dismissals, ultimately providing Miers with a seven person list of targeted candidates to be considered for removal.

Outside of the emails, others were observing politicization first hand. In the late summer of 2006, U.S. Attorney John McKay, who would be requested to resign just a few months later, described sitting down with Miers and others for an interview on a federal judgeship. McKay was asked, "why Republicans in the state of Washington would be angry" with him in regards to his failure to prosecute allegations of voter fraud in the 2004 Washington gubernatorial race.

A few months before the U.S. attorneys were asked to resign, in September of 2006, Sampson again emailed Miers another list of possibilities, this time with nine people listed.

The majority of this information and correspondence came out in the testimony of Sampson and former Attorney General Alberto Gonzales in front of the Senate Judiciary Committee in the spring of 2007.

Naturally all of this piqued the interest of the House Judiciary Committee, who were also investigating the U.S. attorney firings. They subpoenaed Miers to testify, and requested relevant documents from the White House. Miers and Bolten, on behalf of the White House, both claimed executive privilege in late June, with Miers even refused to show up to the Congressional hearing.

This ticked off House Judiciary Chairman John Conyers (D-MI) who held both Miers and Bolten in contempt. As we discussed yesterday, the contempt vote then went to the full House for a vote, where it was upheld, and the lawsuit was filed.

The House Judiciary Committee has won the first round of its lawsuit against the White House over contempt of Congress in House Judiciary Committee v. Harriet Miers et al.

From the order:

Harriet Miers is not immune from compelled congressional process; she is legally required to testify pursuant to a duly issued congressional subpoena from plaintiff; and Ms. Miers may invoke executive privilege in response to specific questions as appropriate.

and that. . .

Joshua Bolten and Ms. Miers shall produce all non-privileged documents requested by the applicable subpoenas and shall provide to plaintiff a specific description of any documents withheld from production on the basis of executive privilege consistent with the terms of the Memorandum Opinion issued on this date

The ruling is the latest in an ongoing battle between Congress and the White House, to have senior aides testify about the U.S. attorney firings.

After looking over the Opinion, Federal Judge John Bates lays out protocol for Congressional subpoenas, stating that while there may be perfectly legitimate claims of executive privilege, a subpoena from Congress can't just be ignored-- and if it is, Congress has a right to sue for failure to respond.

But as far as those claims of executive privilege go, the questions of their validity is still on the table. The Opinion specifically states that the Court "expresses no view on such claims," but it does go so far as to demand that the White House produce specific descriptions of all documents that relate to the claim of executive privilege. This list of descriptions, often called a "privilege log," helps lift the veil on the swath of documents that are being considered under the Administration's privilege claim.

So in short, the White House can continue to claim executive privilege, and Congress can continue to sue them on the legitimacy of the claims. Unless the two parties can work something out, around and around we go.

For those in a quandary about what the House Judiciary Committee's contempt citation of Karl Rove means, we refer you to the currently pending House Judiciary Committee v. Harriet Miers, et al.

Following the path of Miers, we see that after the committee votes on contempt, the resolution is then passed to the entire House. If the House approves the contempt of Congress resolutions, it goes to the DOJ for action.

But since Rove is claiming executive privilege, it is unlikely the DOJ will take any action -- at least they certainly didn't for Miers.

After the predicted DOJ demurring occurs, the House has passed a resolution that allows the HJC to file suit against the parties held in contempt-- which brings us back around to where we started: HJC v. Miers.

The House Judiciary Committee has just voted to hold Karl Rove in contempt for failing to respond to a subpoena to face questioning from the Committee on the prosecution of former Alabama Gov. Don Siegelman.

The final vote was 20 ayes and 14 nays. With Rep. Hank Johnson (D-GA) voting "absolutely, 100% aye."

In a memo on the Full Committee meeting, Chairman John Conyers (D-MI) summarized the facts surrounding Rove's refusal to even appear before the committee and assert executive privilege:

Mr. Rove has refused even to appear before the Committee and assert whatever privileges that he believes may apply to his testimony, relying on excessively broad and legally insufficient claims of "absolute immunity" - never recognized by any court - in declining to appear.

The House Judiciary Committee's ongoing battle with Karl Rove continues today, with a vote on holding the former White House Chief of Staff in contempt.

Rove has refused to answer to a subpoena to testify before Rep. John Conyers (D-MI) committee, answering only in writing to questions from the minority representation of the HJC.

The vote is the first thing on the committee's agenda for their meeting today which starts at 10:15 AM ET. Be sure to check back for updates on the outcome of the proceedings.

Lawmakers on Capitol Hill are talking about a criminal investigation for DOJ officials -- Alberto Gonzales included.

Rep. John Conyers (D-MI), chairman of the House Judiciary Committee, said today's report about politicization in at the DOJ suggests that former AG Alberto Gonzales and other Justice officials may have given false statements under oath before Congress.

Conyers said in a statement this morning:

The Report also indicates that Monica Goodling, Kyle Sampson, and Alberto Gonzales may have lied to the Congress about these matters. I have directed my staff to closely review this matter and to consider whether a criminal referral for perjury is needed."

That's probably not as dramatic as it sounds. Any criminal referral would be passed on to DOJ, which has so far refused to appoint a special prosecutor for the matter. Attorney General Michael Mukasey has said he's not going to pursue contempt referrals from Congress.

It's been a slow burn at the hearing on the 2004 elections at the House Judiciary Subcommittee on the Constitution, Civil Rights and Civil Liberties. With two separate panels, Hans von Spakovsky didn't get around to testifying until 5:00 PM ET.

But Rep. Keith Ellison (D-MN) made it all worth it.

Ellison threw tact to the wind in questioning von Spakovsky, berating him for the disenfranchisement of a group of a dozen elderly nuns and battering him with inquiries on his communications with U.S. attorneys on voter fraud prosecutions. We have video coming, but to tide you over, here's the transcript:

ELLISON: Now here's something that happened on the May 7th Indiana election. A dozen nuns and another unknown number of students were turned away from the polls Tuesday in the first use of Indiana's stringent voter ID law since it was upheld last week by the United State Supreme Court. Mr. von Spakovsky, you wanna stop nuns from voting?

VON SPAKOVSKY: [silence]

ELLISON: Why don't you want nuns to vote, Mr. von Spakovsky?

VON SPAKOVSKY: Congressman Ellison, uh-

ELLISON: I'm just curious to know.

VON SPAKOVSKY: Those individuals, uh, were told, were- knew that they had to get an ID, they could have easily done so. They could have voted, uh, by absentee ballot- uh, nursing homes under the law are able to get-

ELLISON: . . . Mr. von Spakovsky, are you aware that a 98-year old nun was turned away from the polls by a-

VON SPAKOVSKY: They all had passports-

ELLISON: Excuse me.

VON SPAKOVSKY: They had expired passports which meant that they could have gotten-

ELLISON: Mr. von Spakovsky, do you know a 98-year old nun was turned away from the polls by a sister who's in her order and who knew her, but had to turn her away because she didn't have a government-issued ID? That's okay with you?

VON SPAKOVSKY: Yes. . .

And once he was done making von Spakovsky look like a guy who won't help an old lady across the street to get to her polling place, Ellison started in on his communications with the U.S. attorneys. All that and more, after the jump.

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The thorn in the FEC's side, Hans von Spakovsky, will be testifying tomorrow in front of the House Judiciary Committee on the 2004 Elections.

And who will be joining him? None other than Ohio's controversial former Secretary of State Kenneth Blackwell (R).

The hearing starts at 1:00 PM ET tomorrow, and we'll be here, doing what we do best. . . which is to say watching an inordinate amount of CSPAN.

We posted on Monday about Attorney General Michael Mukasey's controversial suggestion that Congress pick up the slack for the federal courts on detainee rights.

But one of the other interesting things that came out of Mukasey's speech, was his scare-mongering on what would happen if was up to the courts alone to deal with the detainees . . . they could be released! . . . in the United States! . . . [cue horror music]

In his testimony before the House Judiciary Committee today, he broached this topic again during questioning by Rep. Dan Lungren (R-CA):

LUNGREN: . . .It seems to me those are unsettled questions- whether the court would be able to order the government to bring detainees in the United States and release them here. Uh, clearly that has not been decided, yet I believe the court is inviting the Congress to outline the parameters of that and I would suggest- make it impossible for that to happen.

MUKASEY: The Court has left that matter open, and the fact- it has said that at the end of the day it must be open to a decsion maker to direct release. Now, um, the fact is that all of these people, every single one of them are aliens captured abroad, in essentially battle conditions um, who had absolutely no right to be here, and there's no good reason to have a court bring somebody here for purposes of release and release them to our communitities- people who could pose a significant danger. Um, we want that particular possibility cut off. Um, we don't want to face it, we shouldn't have to face it.

Karl Rove has categorically denied any involvement whatsoever, either directly or indirectly, in the prosecution of former Alabama Gov. Don Siegelman, in written responses to questions from the ranking member of the House Judiciary Committee, entered into the Congressional record today and obtained this afternoon by TPMmuckraker.

The questions from Rep. Lamar Smith (R-TX) and the answers submitted by Rove's lawyer, Robert Luskin, are available here. More soon.

Below is a sample of the Q&A. Rove's answer is in italics, and is emblematic of his response to all 14 questions raised by Smith.

1. Before former Alabama Governor Donald E. Siegelman's initial indictment in May 2005, did you ever communicate with any Department of Justice officials, State of Alabama officials, or any individual other than Dana Jill Simpson, Esq., regarding Governor Siegelman's investigation or potential prosecution? If so, please state separately for each communication the date, time, location, and means of the communication, the official or individual with whom you communicated, and the content of the communication.

I have never communicated, either directly or indirectly, with Justice Department or Alabama officials about the investigation, indictment, potential prosecution, prosecution, conviction, or sentencing of Governor Siegelman, or about any other matter related to his case, nor have I asked any other individual to communicate about these matters on my behalf. I have never attempted, either directly or indirectly, to influence these matters.

Rove has long refused to comply with a committee subpoena about his role in the Siegelman prosecution, claiming executive privilege. Instead, he's offered to respond to written questions from the Democrat-controlled committee.

So Smith sent Rove's attorney, Luskin, a sycophantic letter on July 15, requesting that he make good on his promise and answer some questions from the committee:

The Committee majority, as before, declined your offer when it was renewed on July 9th. This unnecessarily forced up on your client the Hobson's choice of obeying the limitations placed upon him by the President or obeying the demand of the majority that he appear and testify at a July 10, 2008 hearing before the Subcommittee on Commercial and Administrative Law. The forcing of this issue did not obtain information for the Committee. Rather, it simply provoked partisan spectacle and gratuitously exposed your client to potential legal jeopardy.

Luskin, graciously accepted the request, and conveyed his bafflement at the committees' prosecution in his cover letter with his client's answers:

We simply cannot understand the Committee's interest in provoking a confrontation with Mr. Rove while the precise legal issue that is presented by his subpoena is subject to a pending action in District Court. We have struggled instead to find a method by which Mr. Rove could answer the Committee's questions while at the same time respecting the prerogatives of the President. We thank you for providing such an opportunity, and we trust that Mr. Rove's answers will assist the Committee in resolving these utterly unfounded allegations.

Late Update: The majority of the Q&A refutes the affidavit of attorney Jill Simpson, not that that's anything new. As you might remember, Simpson spoke before the HJC in October of last year and testified to Rove's involvement of Siegelman's prosecution. From what I can tell, the documents spend nine pages detailing the ways in which Rove does not know Simpson.

For the record, Karl Rove has never "communicated, directly or directly with Simpson." He does not and has "never known Simpson personally." He has "never worked with her." He is "not the Karl referenced" in the email on the FEMA contract. He never told Simpson to take "compromising pictures" of Siegelman.

In a rather odd bit of procedural maneuvering, House Judiciary Committee Chairman John Conyers (D-MI), neglected to swear Attorney General Michael Mukasey before he testified to the committee today.

Mukasey seemed perplexed, and mentioned the omission before questioning began by Rep. Jerrold Nadler (D-NY):

CONYERS: The Chair recognizes, to begin the questioning, the Chairman of the Subcommittee on the Constitution, Jerry Nadler of New York.

MUKASEY: I'm sorry, um, Mr. Chairman, I don't mean to raise a matter that's none of my business, but I haven't been placed under oath. Did you want me to take an oath?

CONYERS: No, I do not require that.

We're no strangers to hearings here at TPM, but we're not quite sure what's going on with this. Our best guess? Conyers is trying to ensure quality testimony from Mukasey by relaxing the hearing. Readers have any other guesses?

In what looks to be his final appearance on the Hill, Attorney General Michael Mukasey is set to testify today before the House Judiciary Committee Hearing on Oversight at the Department of Justice.

It starts at 10:15 AM ET, and we'll be watching diligently and bringing you all the latest from Conyers and his gang.

We just received confirmation that Attorney General Michael Mukasey is set to testify before the House Judiciary Committee on Wednesday at 10:15 AM ET.

The hearing, titled "Oversight of the U.S. Department of Justice" is thought to be Mukasey's final appearance on the Hill. Chairman John Conyers (D-MI) will be presiding.

We'll be covering this on Wednesday, so make sure to check back for the final details on the head of DOJ's final oversight soliloquy.