The Documents Not Turned Over

by emptywheel

Last night, DOJ provided Congress with a list of Kyle Sampson documents it wasn't going to turn over. They begin on December 19, not long after the firings, and continue until March 8, when Sampson resigned. The withheld emails suggest some of the key issues the WH is trying to hide, particularly:

• Harriet Miers' involvement in the Cummins firing
• Efforts to pretend Gonzales had not told Pryor Griffin would be appointed with or without Senate approval
• The exchange between Domenici and Iglesias leading to the latter's firing
• The real reason behind Chiara's firing
• Efforts to withhold James Comey and the DOJ clique's testimony from Congress

Update: for those asking the grounds for withholding these documents, here is an excerpt from Richard Hertling's letter negotiating DOJ interviews. This is the follow-on to the email discussions listed in the last item below, no doubt, the terms on which DOJ will willingly allow the clique to testify.

The interviews may encompass queries about their knowledge of a) whether any resignation was related to concerns about acts or omissions of a U.S. Attorney with regard to office management, law enforcement priorities, policies, and/or particular law enforcement matters; b) whether any resignation was requested in order to facilitate the appointment of particular replacements; and c) the provision of incomplete or inaccurate information to the Committees about the requested resignations. Except as described above, questions about their knowledge of other matters, such as the judicial-nominee selection process, the Department's deliberations on responding to congressional and media inquiries on this matter, and pending law enforcement investigations and litigation, would be beyond the scope of these interviews. [my emphasis]

Presumably, Hertling used the same justification to withhold these documents--which would make it a separation of powers argument. But the list like the one they've now released may well be the first step towards subpoenaing them directly.

One more note: what doesn't show up in this list is any discussion of ongoing investigations. That, in and of itself, is interesting. Are you telling me that Kyle Sampson had no discussion about the Foggo/Wilkes indictment, which took place on February 13, solidly in the middle of this time period? Particularly since Foggo's lawyer has argued that there was a good deal of discussion about the final form of the indictment? Nuh uh. I don't believe that for a minute.

Some highlights include:

A 3-email discussion between Sampson and Harriet Miers on "processes for filling USA vacancies." The exchange is interesting for its timing: It took place on Sunday, January 7, just three days after the WH announced Miers' resignation, and just one day before Fred Fielding's name was leaked as her replacement. In other words, one of the last things Harriet did as WH Counsel was instruct Sampson on how to go about replacing the USAs. Just after that exchange, Sampson forwards those emails to Paul McNulty, Michael Elston, William Moschella, and Monica Goodling.

Response to Dan Dzwilewski's comment that politics was involved in Lam's firing. Dzwilewski's comment is still one of the most damning pieces of evidence that Lam was fired to spike the Foggo/Wilkes investigation. And the response to that comment may well have revealed that he was right. (Note, many of the other withheld documents also deal with responses to media coverage that this is political. I find that rather instructive.)

A discussion relating to AGAG's response to a DiFi question regarding how many prosecutors were asked to resign in 2006. They may be withholding this just to hide the fact that they were hiding the Chiara firing still. Or, they may be hiding earlier requests for resignations, of people like Tom Heffelfinger and Todd Graves. Or, more importantly, given DiFi's focus on Yang's ouster, they are likely hiding details relating to the circumstances surrounding Yang's departure. (Note, there's a similar list, noting all the USAs who have resigned since January 16, 2006, that goes to similar issues.)

An email Sampson forwarded to himself, originally received from Chris Oprison, regarding the Iglesias resignation letter. I'm guessing here--but I suspect Sampson forwarded the email from his DOJ account to another one, from which he could forward it to someone else (someone in Domenici's office? Karl Rove?).

A great number of emails relating to Senators Pryor's and Lincoln's responses to the attempt to place Griffin permanently as USA. Surely, these emails discuss how to accuse Pryor of lying about his claim that Sampson told him Griffin would be appointed with or without the Senators' approval, which is how DOJ responded to Pryor's damning claim. DOJ was trying as recently as Wednesday to woo Pryor in order to fix it's terrible handling of relations with him. With no success.

A late January email exchange with Jim Comey regarding his potential testimony before the SJC. I find this particularly interesting, given that Comey has just been scheduled to appear before HJC next Thursday [corrected per iu fan]--and HJC is prepared to subpoena him, if necessary. Note, I suspect HJC is voting on a subpoena for the same reasons they did so for the USAs who have testified, to free Comey of any obligation to clear the testimony through DOJ. In any case, that likely means the email exchange in January went something like, "No! Don't testify! You'll reveal these folks were all very competent! And you'll reveal our other attempts to oust prosecutors!" In which case I can see why they'd withhold it.

A 3-email exchange between Sampson and Sara Taylor regarding a NYT article on Miers' involvement in the firing of Bud Cummins. Note, Taylor has since resigned (the email exchange took place on February 16 and she resigned on March 30). And like Comey, SJC is ready to subpoena her to appear before the committee (in Taylor's case, they have voted, but not issued the subpoena yet).

Discussions how to respond to communications between Margaret Chiara and Senators Levin and Stabenow--as well as DOJ responses to the Senators. This is interesting for two reasons: first, we've never seen the letter DOJ sent to Stabenow and Levin (though we've tried to get it). And Fred Fielding was involved in that response. Clearly, there's more they're hiding about the Chiara firing than just that they hid it for two months.

A very interesting exchange responding to an Iglesias interview on Domenici's pressuring phone calls. The email exchange starts with Scott Jennings emailing Kyle Sampson, Karl Rove, Fred Fielding, K Sullivan, and Dana Perino (and cc'ing Sara Taylor). Then Courtney Eldwood forwards an update (no indication who originally sent this update) to William Moschella, Paul McNulty, Kyle Sampson, and Michael Elston. Finally, there's a press officer email forwarded to Elwood, Goodling, Sampson, Richard Hertling, and Tasia Scolinos. Interesting to note both Karl Rove's presence in the exchange--and the direction of the discussion, from the WH to DOJ. Many of the other documents withheld also relate to the press surrounding Iglesias' allegations.

A discussion of draft subpoenas for Sampson, Goodling, Elston, Moschella, and Michael Battle. I suspect this discussion went something like, "They say they're going to subpoena you all, so we might as well have you testify 'willingly' to put on an appearance of cooperation."

Comments

[lizard]

On what grounds are they withholding these e-mails? Executive priveledge would not apply (not that that would stop them) unless it was a communication between the Prez and his advisors, right?

[Jane S.]

Does anyone know if the Comey appearance before the SJC will be televised? I have a very exalted view of Mr. Comey; I hope he doesn't let us down. I have a strong suspicion Ms. Goodling will have a lot of difficulty remembering as did her colleagues at Justice.

[hauksdottir]

Lawyers' "work product" is often shielded, but that is for communications between lawyer and client. Despite the super-abundance of lawyers, they don't have that contractual relationship. They aren't representing anyone. Whether co-worker or superior, this discussion is mostly among employees of the same office. If Bush wasn't sitting in there directing the meetings, or if they weren't reporting directly to Bush, I don't see how any claim of executive privilege can be asserted. Where's the executive?

If they wish to claim that Rove was keeping Bush in the loop, and offer proof of Presidential involvement, THEN a claim of privilege can pass muster. Of course, that would shift the focus of the investigation. Slightly.

[zhiv]

Following Lizard, yes, EW, please tell us a little more: what's the rationale for holding back these emails? especially interesting after you break it all down like this, showing it's easy to speculate, based on their short headings, on exactly what they're discussing and what the emails contain. They're releasing a flood of documents but are keeping back the ones that are clearly incriminating, and that's okay because....?

[Gromit]

"In other words, one of the last things Harriet did as WH Counsel was instruct Sampson on how to go about replacing the USAs. Just after that exchange, Sampson forwards those emails to Paul McNulty, Michael Elston, William Moschella, and Monica Goodling."

Says a lot about who was in charge, doesn't it? So much for independence of OAG.

[Mimikatz]

I think the reasons for holding back the e-mails are "because they would be embarassing" and "because we think we can".

[tekel]

I suppose it would be too much to ask DOJ for a cross-reference between the categories of withheld email and email sent to RNCHQ.COM or GWB43.com email addresses.

For example, all the Foggo/Wilkes emails that EW suggests Sampson must have sent? I bet they didn't go to anybody at EOP.gov. That's got RNCHQ.com written all over it.

[tekel]

also note this diary over at dkos. They've been graphing the volume of Kyle's email to three groups of recipients, before and after he "resigned." Turns out (shocking, I know) that before he stepped down, he sent a lot of mail to the white house. Afterwards, not so much. Maybe the whitehouse intertube gets plugged when you go under the bus.

[emptywheel]

Just to clarify tekel, that diary purports to show how much of the email was withheld, not a before and after on Kyle's resignation. But note--the N is so small, it's not really surprising we get those conclusions. Most importantly, note that these withheld emails are mostly from document dumps that came after WH realized the shit was hitting the fan, so the withheld decisions are not that surprising.

[Mimikatz]

A little OT, but you'll love this, 'Wheel. From Laura Rozen

Update: House Oversight committee press release: "Waxman has invited former CIA Director George Tenet to testify before the Committee on May 10th regarding one of the claims used to justify the war in Iraq - the assertion that Iraq sought to import uranium from Niger - and related issues."

Posted by Laura at 10:28 AM

[John Lopresti]

mk, GeorgeT's book preview.

[tekel]

I clearly misunderstood- of course you're correct EW. Not sure where I got the before/after Sampson's resignation divider from; I would assume that Sampson would lose access to his DOJ email account as a consequence of his resignation, so there should be ZERO emails from him after he resigned. in the diary I linked above there is a reference to this OTHER earlier diary by the same author (drational) which is a partial traffic analysis of the emails sent by Sampson before and after the USA firings occurred on December 8, NOT before/after Sampson stepped down in March.

That analysis was done on documents that have already been produced by DOJ, not on the new information in the privilege log of what the DOJ refuses to produce. I was thinking it would be interesting to compare the distribution of senders and recipients between these two populations of email, small though the sample may be. I guess I didn't communicate that very clearly. I'm in the middle of final exams this week, so I'm a little preoccupied.

Apologies for any confusion I may have caused...

[LM]

Jane S. wrote:
Lawyers' "work product" is often shielded, but that is for communications between lawyer and client. Despite the super-abundance of lawyers, they don't have that contractual relationship.

Actually, "work product" (unlike attorney-client privilege) does not have to take the form of a communication between lawyer and client. It can be in the form of an internal legal memo, draft pleadings, or brief, etc. HOWEVER, to be covered by the "work product" doctrine, the work product has to have been generated "in anticipation of litigation." I do not believe that the anticipation of having to testify before, or produce documents to, a Congressional committee exercising its oversight responsibilities qualifies as "the anticipation of litigation."

[pseudonymous in nc]

I see that one of the dumpettes shows Sampson well pleased with a WaPo story by reliable GOP stenographer and anti-Dem shit-stirrer John Solomon.

[zhiv]

Thanks for the update. You're a truth beast, EW, even way out in front of TPM on this one. They're a little busy with JM doing a quick and useful Iraq paper bag primer and yet another camera crew stomping through their world headquarters to show where the dissection of this USA scandal went viral. Hope you're ready to welcome Moyers and Lowell Bergman and others to your futuristic HQ while introduce the dozens of young, idealistic crack EW staff in the near future.

[DGOQ]

If Sampson uses the same technique I use then the reason he forwarded an email to himself was because everyone else on the recipient list was BCC (Blind Carbon Copy) and none of them would be aware of the other recipients. The only way to get the recipient list is to retrieve the original headers.

[obsessed]

futuristic HQ while introducing the dozens of young, idealistic crack EW staff in the near future.

that would be the dog I think

[Neil]

Attorney Scott Turow, a former assistant U.S. attorney and the best-selling author of legal thrillers, said during a UW-Madison speech that the Bush administration overstepped its bounds in the controversial mass firing of federal prosecutors.

"It is true that all U.S. attorneys serve at the pleasure of the president, (but) prosecution of the crime is necessarily a local event," said Turow, who served as an assistant U.S. attorney in Chicago and was lead government counsel in trials connected to Operation Greylord, a federal investigation of corruption in the Illinois judiciary.

[snip]

"Because the course of events indicates that these U.S. attorneys were being replaced because of the way they handled particular cases without contravening established policy, is an extremely troubling thing for those of us who have been federal prosecutors," Turow said. "The thought that they would take people's jobs because of whom they prosecute is deeply troubling."
Author says U.S. went too far in lawyer firings

- Anita Weier, The Capital Times, link

[emptywheel]

Neil

Are you on the master list of all Alumni news? ;-p

[Mickey]

In reviewing the Constitution, I can't locate the I don't want to testify or turn over documents that make me look bad amendment. Am I missing something?

[P J Evans]

mickey @ 15:33, that's in the version that only Republics get to read.

[iu fan]

When you mention SJC, do you mean the Senate Judiciary Committee or the House Subcommittee on Commercial and Administrative Law, when you discuss Comey testifying next Thursday? Because he is testifying in the House and not the Senate. Just thought I would make things more precise.

[Neil]

EW

Yep. One L was on the reading list for one of the ILS courses, "Professions" I think.

I didn't know Turow was a Asst. US Attorney until I read the article, which I saw here: www.amerst.com

Truth be told, I do have a googlesearch bot feeding my newsreader all news "Amherst College"

[hauksdottir]

LM,

Authorship of posts on this site is noted below the blue line, so I have to take responsibility for not being quite clear about work product.

Although I did say the staffers weren't representing anyone (the essential point), work product indeed includes internal preparation and notes for a case being brought. A conscientious lawyer will mark WP or some such note on these documents. Large law firms probably have stamps. Would Gonzales and his minions have anticipated a Democratic Congress back in 2005 when they were first discussing politicizing the DoJ? If they didn't anticipate ever being investigated, or sued, they wouldn't have prepared for discovery.

Years ago there was a famous magazine cover with a circle of politicians pointing the finger of blame at each other. I can imagine another cartoon of the DoJ with them representing each other before the judge. But in real life would anyone risk jail time by having a lawyer who is perhaps even more guilty of the charges in question? You'd have to trust each and every person in the office, because if anybody cuts a deal, the entire circle implodes. The prisoner dilemna should be a matter for textbooks.

The only circular firewall that I know of, was the one around Brunhilde... and it didn't deter Sigurd. ;^)