US Attorneys: Document Dump, Etc.

by hilzoy

I have now skimmed more of the recently released DoJ documents than I'd care to admit to, and they are a puzzling lot. Boring, for one thing: there are approximately a million trillion versions of the Talking Points on US Attorneys, Paul McNulty's testimony, a compilation of relevant editorials, etc. I suspect that the document dump reflects a "ha ha, you wanted documents, we'll drown you in documents!!" approach -- it's hard to see how else to account for the fact that several very tedious email exchanges are printed out, in their entirety, about ten times. (Bear in mind that every single email -- even just "sounds great" -- quotes the entire previous exchange.)

Still, there are a few striking points. One is the virtual absence of the Attorney General. I seem to recall hearing somewhere (can't recall where) that he is not a fan of email, so the lack of emails from him is perhaps not surprising. But I've read through Part 8 of the documents posted so far -- easily over 1,000 pages -- and there are no memos from him, and only a very few mentions of him (as in: the Judge wants this, the Attorney General is upset about that, etc.) If I omit things like the million and one copies of the USAttorneys' resignation letters, which are addressed to Gonzales, and other pro forma things, I think I could count the mentions of him that I encountered on my fingers. And many of those come after the scandal has erupted, not while decisions are being taken.

This is really odd. The people writing the emails and letters are often quite senior people in the DoJ, and yet the man who runs the place is almost never mentioned at all, in a plan that might end up costing him his job. I can think of two reasons for this. First, correspondence in which he plays a more prominent role is being held back; second, he actually doesn't do much, and the DoJ is run largely without him.

Whether or not the first is true, I can't see how the second could not be. Even if we were to assume that there are also lots of documents that the DoJ is cleverly concealing, since they reveal Gonzales' secret perfidy, there are just too many decisions being taken with (apparently) no input from him. For the most part, people don't even mention needing to run things by him; it's as though he doesn't exist.

This doesn't surprise me much. Gonzales is the ur-Harriet Miers, and if people took the Attorney General's job as seriously as they take Supreme Court Justices, he would never have been confirmed. Still, it was pretty stunning to see how complete a nonentity he seems to be in the Department he allegedly runs.

Also: you can see Kyle Sampson not just lying, but drafting dishonest letters for his superiors to send to Harry Reid under their own name, in part 3.7 of the documents, pp. 48-9 and 53-5 (pdf). He tells Gonzales that "I am not aware of Karl Rove playing any role in the Attorney General's decision to appoint Griffin", and puts almost the same statement in his draft of a letter sent to Harry Reid under the signature of Richard Hertling, the Assistant Acting Attorney General. I honestly can't imagine why anyone would hire him after this, except for political reasons. And if someone does hire him to curry political favor, I can't imagine they'll trust him much.

Last bit of news: I see that the Senate has voted to repeal the change in the way US Attorneys are replaced -- the one that was snuck into the PATRIOT Act. Good for them.

Comments

[KCinDC]

For those curious, the vote was 94-2, with Bond (R-CO) and Hagel (R-NE) as the only nay votes. Biden, McCain, Mikulski, and the recovering Johnson did not vote.

I do wonder why if Bush wants to bypass the Senate on USA appointments he doesn't just do his usual recess appointment thing. Maybe he'll do that for the AG.

[Ugh]

Froomkin seems to think this latest dump is a bunch of chaff to distract from the last one.

They could at least offer up a really good distraction, like Cheney resigning for health reasons.

[Anderson]

Does the categorical imperative really allow one to write "snuck"?

And WTF was Hagel thinking? I was expecting to see my own Thad Cochran or somesuch.

[KCinDC]

Hey, what's wrong with "snuck"? Now, if she'd written "squozen" or "snozen", you might have something.

Hmm:

The White House will allow Rove and Miers to testify about the US Attorney Purge. But they can't be under oath. It has to be behind closed doors and no transcript can be kept.

[Jim Parish]

Bond (R-CO)

Typo? Bond is from Missouri.

[KCinDC]

Yes, typo (mine). Thanks.

[Ugh]

The White House will allow Rove and Miers to testify about the US Attorney Purge. But they can't be under oath. It has to be behind closed doors and no transcript can be kept.

In other words "we reserve the right to lie to you and then later dispute our own lies." Lovely.

[Ugh]

TPM says the President will speak at 5:45 on the matter. If Gonzales is resigning I'm going to get whiplash.

[Pooh]

it's hard to see how else to account for the fact that several very tedious email exchanges are printed out, in their entirety, about ten times. (Bear in mind that every single email -- even just "sounds great" -- quotes the entire previous exchange.)

SOP.

[LizardBreath]

True. That sort of thing can make you lose your mind during discovery -- the same email string shows up over and over and over and over. Even better is when there's something privileged on it, so you need to redact the same text over and over and over and over...

[Ugh]

Pooh/LB - yeah, but I can just see the outrage if one of these emails had been missed - "you didn't include every email from person X's computer?!!? What else did you not include, counselor?"

[KCinDC]

Yes, trailing the whole previous conversation off the end of each e-mail message is normal in offices. I can't believe that academia, even at Hilzoy's august institution, is entirely populated by conscientious trimmers and top-quoters.

[Josh]

Even better is when there's something privileged on it, so you need to redact the same text over and over and over and over...

But that's what paralegals are for. (Says the former paralegal...)

[KCinDC]

"ha ha, you wanted documents, we'll drown you in documents!!"

A website I'm involved with exists mainly to allow people to find interesting stuff among literally millions of pages of chaff, so I'm familiar with that feeling (though fortunately I'm dealing with the technical side of things and so don't have to read the documents that much).

[Brian]

Ick. I feel dirty when I (infrequently) top-post, to respond to my advisor; I don't know if I could survive in an office environment...

[Morat20]

In other words "we reserve the right to lie to you and then later dispute our own lies." Lovely.

Leahy's response was, if you read between the lines, "No, you're doing it our way. Either volunteer or get subpoenaed. It's all the same to me, but I believe in being polite. You have until Thursday morning to work out that you have no say in the matter."

[john miller]

I hope Leahy sticks to his guns on this. The 9/11 commission gave in too easily in the testimony from Bush and Cheney. In fact, I really hesitate to use the word testimony.

[Nell]

I'm with you there, John. A commenter at Digby's was laying out scenarios if the WH resists the subpoenas. He was pretty confident that enforcing them would take a Senate vote, and if that's subject to a cloture vote, would we be able to get 60...?

I'm expecting the 5:45 Bush thing to be an expression of defiance about subpoena'd testimony, etc., not announcing Gonzales' resignation. But you never know.

[Ugh]

I'm expecting the 5:45 Bush thing to be an expression of defiance about subpoena'd testimony, etc., not announcing Gonzales' resignation. But you never know.

TPMMuck notes that CNN said he was expected to announce that Gonzales had his full support. Chances he mentions "September the 11th" at some point?

[Pooh]

True. That sort of thing can make you lose your mind during discovery -- the same email string shows up over and over and over and over. Even better is when there's something privileged on it, so you need to redact the same text over and over and over and over...

Hey wait, are you In My Offiz Watching My Redakshuns? In other news, the partner I'm working for wrote to say that the Hawaiian vacation is going very well.

[KCinDC]

Wow, Bush compares congressional hearings to "show trials" while he has people "voluntarily" confessing to lists of crimes in Guantanamo Bay.

[Ugh]

Bush compares congressional hearings to "show trials"

Well, they can be show trials - but yes, Bush asserting that while running wholesale show trials in Gittmo is a bit much.

Did he mention "September the 11th"?

[Ugh]

hee, Bush:

We will not go along with a partisan fishing expedition aimed at honorable public servants.

Not unless he's orchestrating it, of course.

[hilzoy]

Ugh: and all this time I thought our expedition was aimed at Rove, Miers, and Gonzales ...

[russell]

I can think of two reasons for this.

I can think of a third. He was aware that what he was involved with was questionable and possibly illegal, and he didn't want to leave a paper trail.

Thanks -

[Katherine]

oh yeah, I know from repetitive documents. I think they grab every relevant email from everyone's documents, so if 10 people are on the exchange, you get 10 copies, and if people reply all and don't delete the rest of the string...fun stuff.

[Tom Hilton]

But that's what paralegals are for. (Says the former paralegal...)

Sadly, true (says the guy still stuck in the paralegal ghetto).

[Jon H]

A Mac user ought to let Spotlight index the files and then go trolling for keywords that way.

[Jon H]

Er, assuming the pdf's contain machine-readable text and not bitmap text.

[Jon H]

Okay, scratch that, they are images. In that case, someone should send the PDFs through an OCR engine, and into files, and then index *those* with Spotlight.

[KCinDC]

Unfortunately these are scanned paper documents, so you have to run OCR of some sort to get text to index. Still possibly worth doing, but fewer people have the software.

[KCinDC]

And I see you realized that as I was writing.

[Spartacvs]

Unfortunately these are scanned paper documents, so you have to run OCR of some sort to get text to index. Still possibly worth doing, but fewer people have the software.

Someone already did it.

[CaseyL]

Congress says it will issue subpeonas; Bush says he will refuse to obey them. That's a clear line drawn in the sand.

Congress, if it wants to be able to fulfill its oversight duties, has to press the issue. It has to be ready to find Bush, Gonzales, et al. in contempt.

Bush, if he wants to continue pushing Executive Privilege, will have to defy the contempt order as well as the subpeonas.

Where things get really dicey is, the agent responsible for acting on the subpeonas and the contempt order is... the Justice Department, and the US Attorneys' Office(s).

Does anyone think Gonzales will honor subpeonas or contempt orders which his own conduct, and his boss' conduct, necessitated in the first place? He will not. Bet on it.

And what Congress does at that point is... go to the courts, or go for impeachment (of Gonzales, surely; and possibly Bush) because at that point, there's really nothing else it can do.

This is where the rubber meets the road.

[Spartacvs]

This is where the rubber meets the road.

Perhaps Bush will leave office the way he entered after all, with a decision of the US Supreme Court. Or perhaps he's done enough to stack the deck in his favor?

[KCinDC]

CaseyL, unfortunately I don't think the congressional leadership can do what needs to be done on their own. And there's no way that enough Republicans will go along -- they've been content to give away congressional power all through this administration, and I see no reason for them to stop now. Hell, there are probably a fair number of Democrats who won't go along.

I'd be glad to be proven wrong on that.

[Ugh]

Ugh: and all this time I thought our expedition was aimed at Rove, Miers, and Gonzales ...

Yes, but ours is not a fishing expedition but a harpooning expedition - which the President, being a vegan, is just not going to go along with.

[CaseyL]

Well, there are certainly precedents for dragging White House officials and aides in via subpeona to testify before Congress. And I'm not sure how many Republicans would line up with Bush on this one, since he's no longer an asset to them.

The Committees issue subpeonas, so that depends on how good the leadership of said Committees is. Leahy in the Senate and, I think, Conyers in the House - have both been spoiling for a fight for a long time. I'd be surprised and disappointed if they can't get subpeonas out of Committee.

A contempt order (for refusing to obey the subpeonas) might be trickier, since I think the whole House and Senate have to pass that.

[KCinDC]

The only thing that gives me a little hope is that for once our side has the simple argument that witnesses should be under oath, while theirs has to explain the nuances of why it's important that they say what they have to say in secret, without swearing to tell the truth, and without any records. That should help with public perception of the struggle, especially since the conditions coincidentally happen to be those that minimize any possibility of holding people accountable for what they say.

The argument that it's not a violation of executive privilege for them to show up, but it would be if they were under oath seems bizarre. But they did get away with it earlier, that time when Bush brought along Cheney to hold his hand.

[Jon H]

If bush insists that it happens not under oath, no transcripts, in private, Congress should counter that, in that case, they'll bring someone in from Gitmo to do the questioning.

[Jon H]

"Someone already did it."

Thanks!

Spotlight makes quick work of searching, even with the split-up version rather than the all-in-one-pdf version.

[jrudkis]

Doesn't it depend on what they are asking? For example, whether it is with regard to executive powers? I know that on Legal Fiction we kicked this issue around a few times, and when one branch of government is asking for information from another branch of government, some things are reasonable, and others are not.

Congress gets up in arms when the congresional office of Rep. Jefferson is raided by the FBI after they find $90,000 dollars in his freezer. No one seems to think that Congress could subpeona a USSC justice to see what happened in deliberations. Most people accept that presidents need to have unvarnished opinions offered in order to make decisions, and therefore some level of executive privilege is warranted.

I find it hard to square the Congressional position on the Jefferson investigation violating separation of powers with the idea that Congress can investigate anything.

[moe99]

Well, jrudkis how do you square Clinton allowing his WH aides to testify before Congress on 47 different occasions?

[kvenlander]

Bush: "And if the staff of the President operated in constant fear of being hauled before various Committees to discuss internal deliberations, the President would not receive candid advice and the American people would be ill served."

Question: Did you personally have deliberations about the purge?

Anybody with a press pass? Please?

[jrudkis]

As a mistake and capitulation to another branch of government? Just as Congress cannot cede its Constitutional power to the president and impact a future Congress, one executive cannot reduce the Constitutional power of a future President.

And I think it matters regarding what the probe is about. Congress can probably subpeona a USSC clerk regarding an alleged murder at the court house. But cannot subpeona one regarding inherent powers of the Court. The AG's work at the pleasure and appointment of the president, as part of the executive. it is an inherent executive power to fire them.

[hilzoy]

jrudkis: where in the Constitution is executive privilege mentioned?

[Spartacvs]

My only worry is that Republicans in Congress may see the confrontation as an opportunity to rally around their President, something they are not really willing or able to do in respect of the Iraq situation. Other than to block initiatives by the Democrats for which they aren't yet really paying a price.

[jrudkis]

Right with the part where USSC deliberations and Congressional offices are privileged.

[hilzoy]

My point exactly. (Although I seem to recall that Congressional offices have a stronger case.)

[jrudkis]

Where does the subpeona power of Congress come from? Or even the investigational power? Does the executive need an explicit power to counter an assumed one?

I don't see where the offices have a stronger case at all. Legislators are protected during attendance and transport during sessions, there is no mention of their offices being protected. And Felony is excepted.

They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

[Yukoner]

Kos has a post up claiming that there is a gap of roughly 18 days, from mid November to early December, in the e-mails released by the Department of Justice.

I must admit that I'm finding this story more than a little interesting.

[Steve]

Just as Congress cannot cede its Constitutional power to the president and impact a future Congress, one executive cannot reduce the Constitutional power of a future President.

At some point, though, history and text actually make a difference, or you're just asserting a right to have the Constitution mean whatever you want it to mean.

Never in the history of the Republic has anyone recognized the principle that Presidential aides can't be compelled to testify before Congress. Now, of course we haven't had 220 years of Congressional subpoenas, but still, I'll put the principle of inter-branch oversight up against your nonhistory any day.

I thought the Congressional position on the Jefferson raid was just as silly as you did, but still, at least they had the legitimate argument that this sort of thing simply hasn't been done in the past. In fact, one of the historical abuses which concerned the Founding Fathers was that, in England, the King would routinely send his goons to ransack Parliament and harass legislators who weren't doing his bidding. So at least there was a reasonable argument on paper, even if I still think they were being silly.

[Spartacvs]

Per Glenn Greenwald:

"Most of us want no part of a president who is cynical enough to use the majesty of his office to evade the one thing he is sworn to uphold the rule of law."—Tony Snow, 3/29/1998

A keeper.

[DaveC]

I'm with Andy McCarthy. I would like to see unautorized leaks prosecuted too.

It's remarkable that this is what it comes down to after the disgraceful Sandy Berger sweetheart plea; the inexplicable lack of movement on the Jefferson investigation (the congressman is now on the Homeland Security Committee notwithstanding two people who've pled guilty to bribing him, the happenstance of his being on tape taking a $100K bribe — $90K of which was seized from his refigerator — and an agent who's sworn under oath that he obstructed the search of his home); the about-face on Jose Padilla (now he's an enemy combatant, now he's a criminal defendant); the sudden shift of the NSA's terrorist surveillance program to the FISA court (after a year of asserting that this vital program could not work under the FISA statute); the lack of movement on any of the wartime classified information leaks; the absence of meaningful immigration enforcement against employers and on the borders; etc.

All that, which just kills those of us who care about the Justice Department ... and what ends up getting congress whipped up is nonsense — the proper political use of a political power that the last Democratic president and Democratic Justice Department used systematically and remorselessly.

How did the Swift program get leaked?

What about the CIA pilots. How did the information about them get leaked?

I think Jay Rockefeller, Jimmy Carter, John Kerry, Howard Dean violated the Logan Act. The FBI should subpeona them.

[Steve]

And yet, they haven't. How frustrating. Time to fire some folks at the FBI!

[Pooh]

Kos has a post up claiming that there is a gap of roughly 18 days, from mid November to early December, in the e-mails released by the Department of Justice.

Are they trying to remake watergate shot-for-shot like Gus Van Sant and "Psycho?"

[dutchmarbel]

Maybe it is time that "The house that Jack built" was updated to the *current* George...

This is THE MAN--all shaven and shorn, All cover'd with Orders--and all forlorn; THE DANDY OF SIXTY, who bows with a grace, And has taste in wigs, collars, cuirasses and lace; Who, to tricksters, and fools, leaves the State and its treasure, And, when Britain's in tears, sails about at his pleasure: Who spurn'd from his presence the Friends of his youth, And now has not one who will tell him the truth; Who took to his counsels, in evil hour, The Friends of the Reasons of lawless Power; That back the Public Informer, Who would put down the Thing, That, in spite of new Acts, And attempts to restrain it, by Soldiers or Tax, Will poison the Vermin, that plunder the Wealth That lay in the House, That Jack Built.

[KCinDC]

DaveC, don't you think it's a little ridiculous to take the instances when the administration changed course at the last minute specifically to avoid judicial scrutiny of its bogus arguments and cite them as evidence of Democratic sympathies in the DOJ? J. Michael Luttig could see what was going on. Is he a closet liberal?

I've wondered about the lack of indictment of Jefferson as well. Perhaps the administration is enjoying watching the problems he causes House Democrats, which would go away if they'd indicted him and thus allowed him to be excluded from positions without accusations of inconsistent treatment and racism. Or maybe the charges are bogus -- an idea I'd initially dismissed out of hand but have started to consider slightly more thinkable as the time drags on, and with recent revelations.

[Hartmut]

I'm expecting the 5:45 Bush thing to be an expression of defiance about subpoena'd testimony, etc., not announcing Gonzales' resignation. But you never know.

In Central Europe noone would risk a political statement with any connection to "5:45".
It's on the same level as "Noone has the intention..." ;-)

[John Doe]

There's now reams of evidence that the Bush administration really was concerned about Carol Lam's record on immigration and gun cases. See this post and the first comment.

[cleek]

now that Patterico has throw up his hands in disgust, will his followers do the same ?

[cleek]

s/throw/thrown/g

[john miller]

I have mostly stayed out of this fray, but just one comment. I have no doubt that at least one and maybe a couple of the fired USAs were low performers, and Lam was probably one of those.

And it is easy to muddy the waters by focusing on those few, and Patterico has tended to do so.

On a side point, I have tried to read the Patterico columns to keep an even perspective and he really appears to be a sincere person. However, he tends to display his overall bias and disingenuousness by constantly saying things like "the media and the Democtratic Party, but I repeat myself."

This tends to make me view anything else he says with a great deal of skepticism.

[Ugh]

I think Lam's record on immigration was right in line with the administration's policies (guest workers, some sort of amnesty, etc.) - until they turned on a dime in the run up to the 2006 elections and decided they were all about enforcement and fences and suddenly Lam made them look bad.

And what's with the idea that she wasn't prosecuting enough gun cases? Does the NRA know the administration's position on this?

[Steve]

It's clear that there were legitimate concerns about Lam's record on enforcement cases. It's not at all clear that this was the primary reason she was replaced, given that:

1) There's no evidence to this point that anyone at DOJ ever talked to her about it;

2) As Sen. Feinstein has noted, the very next day after Lam notified the DOJ of pending search warrants in the Wilkes/Foggo investigation, Sampson sent an email to the White House asking to discuss "the real problem that we have right now with Carol Lam" - which is obviously a reference to something other than an ongoing issue involving immigration enforcement;

3) Sampson said the problem "leads me to conclude that we should have someone ready to be nominated on 11/18, the day her 4-year term expires." Considering they had no problem firing other US Attorneys in the middle of their term, the only reason you'd wait for her term to expire naturally is if, for some reason, it was very important to you that it look like an innocuous end-of-term replacement.

[cleek]

Aunt Harriet and Uncle Karl have been invited to stop by the House to tell some of their wondrous stories. i wonder if Grumpy Grampa George will lock them in the woodshed till fall...

[John Doe]

Thanks for actually considering the evidence, Steve.

Here's why I disagree with your analysis:

1. The mere fact that no one talked to Lam about immigration (if that's the case) isn't dispositive here, or even all that relevant. She was in office for a little over four years, and her term was up. When the President can look at a four-year track record that clearly shows a prosecutor's philosophy and approach, the President has no obligation whatsoever to give her a second chance to completely revamp her office in a second four-year term.

2) As Sen. Feinstein has noted, the very next day after Lam notified the DOJ of pending search warrants in the Wilkes/Foggo investigation, Sampson sent an email to the White House asking to discuss "the real problem that we have right now with Carol Lam" - which is obviously a reference to something other than an ongoing issue involving immigration enforcement;

This isn't "obviously" a reference to the ongoing searches at all. First, the email in question was sent to Bill Kelley on May 11, 2006, "Per your inquiry yesterday after JSC." It is unknown whether Bill Kelley's "inquiry" came before or after the "pending search warrants" -- or whether these guys would even have known about the search warrants. We have a large federal government that experiences important legal developments constantly, and DOJ lawyers aren't omniscient, such that they are constantly up-to-the-minute on everything that happens anywhere in the country.

Second, if you look at the documents compiled at the Patterico link, Kyle Sampson and Bill Mercer, in private emails, talked exclusively about Lam's record on immigration cases, throughout May and June of 2006. This was all just a smokescreen because they thought that their emails would be publicly disclosed someday? Come on.

3) Sampson said the problem "leads me to conclude that we should have someone ready to be nominated on 11/18, the day her 4-year term expires." Considering they had no problem firing other US Attorneys in the middle of their term, the only reason you'd wait for her term to expire naturally is if, for some reason, it was very important to you that it look like an innocuous end-of-term replacement.

Be specific here: Who was "fired" in the "middle of their term"? Every other document that I've seen discusses the end-date of the four-year term for each of the US Attorneys at issue here (see, e.g., page 20-21 here). The reason that "you'd wait for her term to expire naturally" is because that was the procedure for everyone.

Moreover, what neither you nor any other liberal blogger seems to comprehend is that removing Lam would never have had any effect on any of her ongoing investigations/prosecutions. She had over 100 prosecutors working in her office, and no matter who the replacement is, it's just not the case that the replacement could ditch a high-profile corruption investigation that several career prosecutors were working on.

As Andy McCarthy said, "In 18 years as a prosecutor I served under six different U.S. attorneys. The cases are investigated and prosecuted by the assistant U.S. attorneys. In all the changes of administrations I experienced, I can't remember a single time when the transition resulted in a major investigation — especially a corruption investigation — being shut down. . . . New U.S. attorneys just don't come in and knock over all the furniture — not as a rule."

[John Doe]

Or let me put it like this: All of these US Attorneys were appointed by Bush near the beginning of his first term. Which ones do you think were still "in the middle of their term" at the end of 2006?

[John Doe]

Just noticed in the Patterico thread that something is relevant to Hilzoy's point about Gonzales.

I think I could count the mentions of [Gonzales] that I encountered on my fingers. And many of those come after the scandal has erupted, not while decisions are being taken.

Lo and behold, there's a June 1, 2006 email that mentions that Gonzales was concerned about Lam's performance on immigration cases, and was threatening her removal for precisely that reason:

Email from Kyle Sampson to Bill Mercer, June 1, 2006:

Bill, this relates (certainly in the AG’s mind) to the e-mail I just sent to Elston (cc to you) re our pressing need to, in the very short term, generate some deliverables on immigration enforcement, and in the long-term, insulate the Department from criticism by improving our numbers. AG has given additional thought to the SD [SAN DIEGO] situation and now believes that we should adopt a plan — something like the following:

Have a heart-to-heart with Lam about the urgent need to improve immigration enforcement in SD.

Work with her to develop a plan for addressing the problem — to include alteration of prosecution thresholds; additional DOJ prosecutors; additional DHS SAUSA resources; etc.

Put her on a very short leash;

If she balks on any of the foregoing or otherwise does not perform in a measurable way by July 15 [my date], remove her.

AG then appoints new USA from outside the office.

Steve, notice that this email shows that the AG actually was considering the removal of Lam before her four-year term was up.

[Hartmut]

Without talking about the merits concerning the firing I think that email smells bad.
For me it sounds like "We need to improve our image with certain people (it's an election year, you know). Concentrate on that!"
In other words to me that looks like just another case of using law enforcement for mainly political means.
That might not be illegal in the strict sense but does nothing to increase my confidence.

[spartikus]

Moreover, what neither you nor any other liberal blogger seems to comprehend is that removing Lam would never have had any effect on any of her ongoing investigations/prosecutions.

I think I would have no problem believing this sentence if it ended "under any Administration other than this one."

[rea]

John Doe, notice that they didn't actually do any of the things outlined in the e-mail.

[John Doe]

Your sense of smell is too sensitive. Every administration inevitably thinks about the politics of this issue -- i.e., whether the administration could be depicted as having let significant crimes slip through the cracks. Pick any Democrats you can think of in the entire country to be President and AG, and they will ask themselves about the political results of prioritizing certain prosecutions over others.

[Steve]

This isn't "obviously" a reference to the ongoing searches at all.

I didn't say it was "obviously" a reference to the ongoing searches. I said it was "obviously" a reference to something other than the long-standing immigration issue.

First, the email in question was sent to Bill Kelley on May 11, 2006, "Per your inquiry yesterday after JSC."

The email clearly discusses two separate things. First, it says "per your inquiry," here's a copy of that email I sent last month. Second, it says "please call me to discuss various matters." There's no indication that the "inquiry yesterday" had anything to do with Carol Lam.

Be specific here: Who was "fired" in the "middle of their term"?

I think you're right about this. I withdraw the point.

I'm perfectly open, by the way, to the possibility that the evidence may show Lam's firing was legit. She seems to present the strongest case for "performance-related" issues, which is probably why many people choose to focus on her and ignore the less favorable cases. However, I think the May 11 email still needs to be addressed.

[John Doe]

notice that they didn't actually do any of the things outlined in the e-mail.

First of all, you don't know that. Someone might have had a phone call with Lam that isn't mentioned in one of the documents. Second of all, the administration did follow through with the latter item on the list -- removing Lam.

Third of all, your point is irrelevant. Maybe you live in a world where everyone always follows through 100% of the time on every initial thought that is jotted down in an email, and whenever they fail to do so or change their mind, that means that they were lying. In my world, people talk about all kinds of things in emails -- and then later they decide to take a different approach, or maybe they don't get around to something. That doesn't mean that their underlying goal or concern is a lie.

[John Doe]

Close italics

[Ugh]

Has anyone called the administration on their executive privilege b.s., especially with respect to their "compromise" offer of "we want to lie and have no record so later we can lie some more"? Specifically, if the point of executive privilege is to let the President receive confidential advice (which I believe the Decider™ referred to yesterday), then it is just as undermined with their compromise offer as it would be in open hearings?

[John Doe]

I didn't say it was "obviously" a reference to the ongoing searches. I said it was "obviously" a reference to something other than the long-standing immigration issue.

Thanks for clarifying the point. I still disagree, however -- Sampson and Kelley had obviously had a conversation on the previous day at some sort of meeting. A more likely explanation is that Kelley, who doesn't seem to have been closely involved in the attorney issue, said something about Lam that indicated that he didn't understand the issue. Maybe he thought Lam's removal was just about the issue of gun cases, for example. So Sampson could easily have responded with, "Let me tell you about the real problem," which would then refer to the same immigration issue that was the subject of just about EVERYTHING that was said about Lam.

So for the Democrats' (i.e., Hilzoy's) theory to be true, this is what you have to believe: Over a period of more than a year, everyone is chattering about Lam's lack of prosecution of immigration cases. All of the California congressmen write a letter about it. Feinstein writes a letter about it. Emails and official memoes fly back and forth analyzing the incredible drop in prosecutions under Lam. The only other issue that anybody mentions is that she also failed to prosecute enough gun cases (i.e., about 12, compared to over 100 in similar jurisdictions elsewhere).

In the midst of all this, Sampson writes all of one email that doesn't expressly refer to "immigration." Instead, it vaguely refers to the "real problem" with Lam.

Because this email came out one day after Lam's office served search warrants in an ongoing investigation, what Sampson really meant is that these search warrants were the "real problem," meaning that this whole thing was a huge political conspiracy to get rid of the search warrants.

But rather than removing Lam immediately, they wait until about 7 months later, long after the search warrants in question were water under the bridge. What's more, all of the subsequent communications refer to immigration. The AG, for example, is described as wanting Lam removed if she doesn't shape up on the immigration issue.

Do you see how baseless this conspiracy theory is? All that your side has is a strained interpretation of one vague phrase in one email. On the other side, we now know that there were dozens of communications both within the Dept. of Justice and from Congress indicating that everyone at all levels was displeased with Lam's failure to prosecute immigrant smugglers and gun traffickers.

[John Doe]

I'm perfectly open, by the way, to the possibility that the evidence may show Lam's firing was legit.

I wish you get more liberals to share in your open-mindedness as to the evidence here.

She seems to present the strongest case for "performance-related" issues, which is probably why many people choose to focus on her and ignore the less favorable cases.

Fair enough. On the other hand, I just haven't heard enough about many of the other cases. The Lam case, it seems to me, is being highlighted on this blog and elsewhere as perhaps the chief example of alleged "corruption," i.e., firing somebody for improper political reasons. And yet even the most cursory examination of the evidence shows that this charge is, at best, almost completely unsubstantiated.

[hilzoy]

John Doe: "the Democrats' (i.e., Hilzoy's) theory "

Do I have a theory? Please let me know what it is. I do believe that the administration has been unbelievably inept about this (with the 18 day gap being just the latest thing they've done that might have been designed to prolong this.) I believe that they have clearly shown that Alberto Gonzales is an incompetent manager, and that Kyle Sampson is pretty much flat-out lying in some of the stuff in the document dump, as noted above.

I also think that firing attorneys in this fashion, not at the beginning of a new President's term (which I understand to be standard) but in the middle, is highly unusual, and that the administration's claims of executive privilege requiring no transcripts for Rove et al are silly.

I was not, however, aware of having taken a position on anything else.

[Steve]

The Lam case, it seems to me, is being highlighted on this blog and elsewhere as perhaps the chief example of alleged "corruption," i.e., firing somebody for improper political reasons.

The chief example? How about David Iglesias, who got calls from two Republican lawmakers asking if he would be indicting any Democrats before the November election, and then got added shortly thereafter to the list of prosecutors to be fired?

How about John McKay, who was constantly the subject of complaints from big Republican donors who were outraged that he wouldn't go after Democrats in connection with the disputed 2004 governor's race?

Maybe you're hearing all about Carol Lam because you're reading a bunch of blogs that choose to focus on Carol Lam. Iglesias has an op-ed in today's NYT, so it's not like his situation is buried in obscurity. His allegations, if true, are absolutely damning.

[cleek]

I was not, however, aware of having taken a position on anything else.

email is slow today. but, be assured, your new positions have been assigned. be prepared to defend them!

[moe99]

http://www.tpmmuckraker.com/archives/002836.php

Seems to shoot down a number of Doe's claims wrt to Lam

[Ugh]

Seems to shoot down a number of Doe's claims wrt to Lam

hmmm...is that her politicizing her office?

[Steve]

It's not politicizing your office to follow instructions as to what your prosecutorial priorities should be. The DOJ, and by extension the President, are entitled to set those broad policies. What they're not allowed to do, without interfering with the concept of prosecutorial discretion, is to give orders like "prosecute this person" "don't prosecute this person" and so forth.

But if the US Attorneys were supposed to be completely independent decisionmakers, their positions would be civil service jobs, as opposed to Presidential appointments. They're still expected to be on board with the administration's broad priorities, but within those constraints they're independent.

[Ugh]

Steve - I don't disagree with your point about the USA's, but I expect the right's talking point on this email will be "see, she's politicizing her office herself, so she should have been fired." (not that anyone could tell from my comment)

[John Doe]

Hilzoy,

Direct your attention to this recent post. After quoting two bits about Lam, you agree with Josh Marshall that "this is the big one." After another quote about Lam, you add, "What this is about is an attempt to subvert the system of justice."

You were merely attempting to suggest that the firing of Lam was "unusual" and/or "inept"? Really? How is the average reader supposed to glean that from your remarks?

http://www.tpmmuckraker.com/archives/002836.php Seems to shoot down a number of Doe's claims wrt to Lam

Not so. The post itself points out that Lam's willingness to "change course" referred to media strategy, not to prosecutions.

[John Doe]

Note that the latest TPM link disproves the speculation that no one ever talked to Lam about the immigration problem.

[KCinDC]

New U.S. attorneys just don't come in and knock over all the furniture — not as a rule.

How is that relevant to this administration (and the recently departed Republican-controlled Congress)? If things never happen that don't happen "as a rule", then how many events of the past six years must have been hallucinations?

[Steve]

Note that the latest TPM link disproves the speculation that no one ever talked to Lam about the immigration problem.

Who is it that claimed "no one" ever talked to Lam about immigration? Quite clearly, Rep. Issa was waging an open war against her in the media and elsewhere. The point is, there's no evidence that anyone from the DOJ ever "woodshedded" her as was proposed, or told her that she needed to focus more resources on immigration. Whether a Congressman publicly complained about her is not on point.

[Nell]

Ugh: Has anyone called the administration on their executive privilege b.s....?

Yes, the press briefing was pretty brutal, I gather. Tony Snow had his column of 1998 quoted back to him by an Agence-France-Press reporter, Olivier Knox (who may have been inspired by today's Glenn Greenwald column).

He stepped deeper into it, too, undermining the privilege claim further by saying that Bush "does not recall being briefed on the matter" of fired U.S. Attorneys. If that's true, that Bush was sealed off, then it's damned hard to see how any of the people who provably did discuss it can gain executive privilege.

If, as Digby and others speculate, they're fighting these subpoenas in order to set a precedent for other Congressional investigations from which they have even more to fear, then they're doing a sorry job of it. Fred Fielding may wish he'd chosen a better client.

[moe99]

From what I've read, Carol Lam's immigration cases may have been fewer but she was not targeting the underlings, but rather those further up the food chain, so the investigations in and of themselves were more complex, took longer and the fact that she obtained more significant sentences also should factor into the mix.

and the fact that in May, 2006 the DoJ defended her quite strongly from not only criticism from Issa but also a query letter sent by Feinstein as well if you review the document dump.

[John Doe]

Also Hilzoy:

I do believe that the administration has been unbelievably inept about this (with the 18 day gap being just the latest thing they've done that might have been designed to prolong this.)

You shouldn't believe every half-cocked thing that Josh Marshall says. One of his own commenters made this point:

There isn't an 18-day gap! I found an e-mail on Nov 29 from Elston to Long (#1-7), an e-mail exchange between Griffin and Goodling on 11/16 (#7-9) and another on December 1 (#7-9). Granted this isn't a lot of e-mails considering how many you'd expect to see, but there isn't a total gap.

Posted by: ccinnc
Date: March 21, 2007 03:06 PM

I'd also add that I just looked at Document 7-2 (here, and I found emails from Nov. 20 and Nov. 22 (see pages 35-36). Thus, there are several emails that fall within the supposed gap, and there could be plenty more for all we know. Also, not everybody emails about everything; people could have been discussing this over the phone or in personal meetings. (It's not unknown for federal officials to have meetings.)

[Nell]

Sorry, JD. The "18-day-gap" is going to stick, no matter if a dozen puny little emails turn up. It's too powerful a brand, having been seared into the public memory by a previous coverup of Republican criminal corruption.

[KCinDC]

You may have a point, John Doe, but I was amused by your phrase "one of his own commenters", as if disagreement from a commenter was somehow unexpected or a statement against interest. After all, you're one of Hilzoy's own commenters, but no one pays extra attention or gives extra credence to your criticisms of her posts for that reason.

[chdb]

The point, JD, is during that eighteen-day period the rate of produced email falls precipitously, hence the term "gap." It's metaphorical, not literal. When they send out hundreds of emails per day and only three or four for the eighteen days in question - well, your "maybe they were just all going to meetings" suggestion doesn't quite satisfy common sense.

[John Doe]

"One of his own commenters" -- it struck me as funny too, but for a different reason. Marshall had no basis whatsoever for claiming that there was an 18-day gap other than the fact that some commenter made that claim in the midst of an extremely lengthy thread. But then another commenter points out that it's not, you know, true. So how come Marshall isn't aware of that comment? That's the point.

The "18-day-gap" is going to stick, no matter if a dozen puny little emails turn up.

I agree with you that most liberals are going to disregard the facts here.

[John Doe]

The point, JD, is during that eighteen-day period the rate of produced email falls precipitously, hence the term "gap." It's metaphorical, not literal. When they send out hundreds of emails per day and only three or four for the eighteen days in question - well, your "maybe they were just all going to meetings" suggestion doesn't quite satisfy common sense.

Hundreds of emails? Where are you getting this? I certainly haven't looked at all the documents, but in the few I've seen, there are scattered emails spread out over several months or a year. As Hilzoy has pointed out, a lot emails appear many, many times in the documents, because every response carries with it all of the previous emails in the same chain. What on earth makes you think that there ought to be "hundreds" within a two-week period?

[Ugh]

Marshall had no basis whatsoever for claiming that there was an 18-day gap other than the fact that some commenter made that claim in the midst of an extremely lengthy thread. But then another commenter points out that it's not, you know, true. So how come Marshall isn't aware of that comment?

Currently at TPM there a post and an update linking to additional emails from the gap - apparently he (or more accurately one of his co-bloggers) is aware.

[chdb]

What on earth makes you think that there ought to be "hundreds" within a two-week period?

Er, the fact that any investigation of a federal agency or the executive branch - and this is technically both - produces hundreds of thousands of documents. Boxes upon boxes upon boxes. Seriously, the U.S. government produces a shitload of documentation, and these days a lot of it is electronic.

What the Bush administration has released isn't a surfeit to begin with; it's a paucity, and their trumpeting of "3,000 pages" over and over again isn't much more than marketing and spin.