Speaking of Back-Dating Signatures

by emptywheel

There has been a bit of discussion about the Comey hospital story. Why would Gonzales and Card get Ashcroft's signature to authorize their domestic spying program? Any idiot who knew about Ashcroft's gallbladder surgery wouldn't accept his signature, on March 10, as valid. Is it possible they intended to backdate the signature? Nahhh! Gonzales wouldn't do that, would he?

Yes he would.

Yesterday's document dump includes the Control Sheet for Tim Griffin's appointment. The control sheet makes it very clear:

Alberto Gonzales signed the appointment on December 18 ... but it was dated December 15.

So why would Alberto Gonzales backdate the Tim Griffin appointment from a Monday to a Friday?

Because Alberto Gonzales and Senator Pryor had a conversation on December 15 at which Pryor asked for reasons why Cummins was resigning and indicated he did not support Griffin for USA. It appears that, after that conversation, they quickly made Griffin's appointment a done deal, only later submitting the paperwork for it. And then, according to the list of documents not turned over, the White House and DOJ had a flurry of conversations:

• December 15: Notifying C. Oprison of Cummins resignation announcement (Oprison, Goodling)
• December 15: Scheduling call with C. Oprison re: Cummins resignation (Oprison, Goodling, Tracy Washington, B Meadows)
• December 15: Discussion of issues relating to Cummins resignation/replacement by Griffin (Goodling)
• December 18: Forwarding message to Sen. Pryor staff re: ways a person can become a USA (Oprison, Goodling)
• December 18: Discussion with Sen. Pryor staff re: ways a person can become a USA (B Russell)
• December 18: Request to send Arkansas press clippings to C. Oprison
• December 19: Forwarding DeMillo (AP) story: re: Sen. Lincoln's response to appointment of Griffin (From Goodling, to Sampson and Oprison)
• December 19: Discussion re: response to DeMillo (AP) story re: Sen. Lincoln's response to appointment of Griffin (Goodling, Scolinos)
• December 19: Fowarding discussion re: response to DeMillo (AP) story re: Sen. Lincoln's response to appointment of Griffin (Oprison)
• December 19: Fowarding discussion re: response to DeMillo (AP) story re: Sen. Lincoln's response to appointment of Griffin (Goodling)
• December 19: Question re: response to DeMillo (AP) story re: Sen. Lincoln's response to appointment of Griffin (Goodling)

At which point, on December 19, Kyle Sampson launches into his "gumming it to death" strategy. Apparently, after having retroactively appointed Griffin so as to pretend it occurred before the Pryor conversation, Goodling, Sampson, and Oprison went into a flurry of activity to try to pull off this retroactive fuck-you to the Senator from Arkansas.

This also explains a bit about a passage in a recent Murray Waas story (though I think the dates on the story are wrong):

The next day, on December 20, Cummins formally resigned as U.S. attorney and Griffin was named as his interim replacement. Cummins said in an interview that officials at Justice sped up the timetable on his departure, going so far as to call him on a cellphone when he was on a hunting trip with his son to say he must leave on December 20.

Cummins had settled on December 20 as his resignation date much earlier in the year. But his resignation was officially December 15. It's unclear when DOJ called Cummins, but if he was hunting over the weekend, that would be either December 16 or 17. In any case, I think I can understand why they needed to contact Cummins while he was hunting--they had to put everything in order to backdate this appointment.

If Gonzales was willing to backdate Griffin's appointment, why wouldn't he backdate the authorization for Bush's domestic wiretap program?

Update: Here's a question for the lawyers and government employees in the crowd. The original appointment was sent to OLC for "numbering and handling." Is that normal procedure? Does OLC have to "number and handle" every appointment document out there? It sure seems like a menial task for the smartest lawyers in DOJ. Or did they need to do this to find some way to slip the document into the normal document control list, thereby hiding that it was post-dated? And did OLC have to do some fancy lawyering to justify the retroactive date?

Update: TP notes some funkiness with the date of Griffin's appointment too.

Update: More cover your assing. During the drafting process of a letter answering questions a number of Senators asked about the Cummins firing, DOJ changed this statement:

Although the decision to appoint Mr. Griffin to replace Mr. Cummins was first contemplated in the spring or summer of 2006, the final decision to appoint Mr. Griffin to be interim U.S. Attorney in the Eastern District of Arkansas was made on or about December 15,2006, after the second of the Attorney General's telephone conversations with Senator Pryor.

To this statement:

Although the decision to appoint Mr. Griffin to replace Mr. Cummins was first contemplated in the spring or summer of 2006, the final decision to appoint Mr. Griffin to be interim U.S. Attomey in the Eastern District of Arkansas was made on or about December 15,2006, after the Attorney General's telephone conversation with Senator Pryor.

In both, they keep the "on or about," which sure makes a lot of sense now that we know about the backdating. But I'm particularly interested in the substitution of, "after the Attorney General's telephone conversation with Senator Pryor" for "after the second of the Attorney General's telephone conversations with Senator Pryor." By changing the wording the document can legally mean either before or after the conversation.

Update: At my DKos Diary on this, Carolita points out that the Griffin nomination was made public immediately.

A surprise late-afternoon announcement Friday that J. Timothy Griffin will become the new U. S. attorney for the Eastern District of Arkansas drew the ire of U. S. Sen. Mark Pryor, whose spokesman said the maneuver amounts to "basically circumventing the normal process."
...
U. S. Attorney General Alberto Gonzales made the appointment, which takes effect Wednesday. The announcement caught even the current U. S. attorney, Bud Cummins, off guard as he hiked through deer woods with his son.

Shortly after being notified that the announcement was being moved up, Cummins said over a cell phone in the woods that he had been planning to announce next week

So it's not that the appointment didn't happen on December 15. Rather, it's that someone besides Attorney General made the appointment. When that press report went out, after all, Gonzales had not yet made this official.

Comments

[orionATL]

george w. bush really IS

the CEO president, isn't he?

[lizard]

Excellent find! Thank you. I am going back over Gonzo's testimony carefully to determine if he said exactly what date Griffin was appointed. Possible perjury, again. The more I read of his testimony, the more convinced I am that Gonzo is very slick, not the bumbling moron circumstances have forced him to play on TV.

[Ishmael]

EW - while I think that AGAG and Card would have had no problem with slipping a backdated re-authorization under the nose of a woozy Ashcroft (and no doubt Comey, Mueller and Goldsmith also considered it possible) I'm not sure the Griffin "appointment" is in the same league as a deliberate deception of an incapacitated person. An appointment can be made with retroactive effect without skulduggery being involved, and I believe it would be legal if AGAG were confirming in writing the appointment made earlier - not to say that it was made earlier, but it is more easily defensible. I would love to know if Comey saw the documents that Card & AGAG brought to the hospital room, I suspect that since Comey made a point of testifying sans subpoena, he and Schumer had a careful agreement as to what would be asked and how it would be answered. Whether this is tactical or strategic on the part of Schumer, or whether Comey indicated that he would not or could not answer certain questions as a result of the classified nature of the documents or the program in question is the tantalizing part for me. I remember Sen. Rockefeller being hogtied in what he could say or do, as a US Senator on SSIC in regards to disclosure of this program, so clearly Comey must be under similar strictures.

BTW, as a lawyer I would be challenging the standing of any indictment or other process coming under Griffin's jurisdiction - has anyone thought to do this, to force him to disclose the source of his jurisdiction?

[emptywheel]

Ishmael

I'm not sure the backdating was illegal, I agree. But it clearly had to do with an attempt to get this "in place" before the Pryor conversation on the 15th, if for no other reason than to say they didn't use PATRIOT to bypass Congress (in the last days before the Republicans lost Congress, of course).

And yes, there was a discussion of the Constitutionality of Griffin's appoint already, the judge ruled it legal.

Though that has limited application. It was to challenge the second superseding indictment on a Capital murder case. The first and second indictments came under Cummins, so they could not argue the indictment itself or the superseding to make death penalty an option was improper. The third indictment came under Griffin, signed by an AUSA, sothe AUSA's sign would make it valid in any case. But the judge did say that, even if the PATRIOT appoint was illegal, Griffin was still within the 120 days he'd be able to serve under the old law. So it's probably ripe for another challenge.

[bmaz]

Beautiful. Add falsification of government documents to the list. Well, Its not like we couldn't have guessed i suppose. When is enough enough? It is time for this nonsense to end. Sara, if you see this comment, I left a comment a couple of posts down about your postulation of a Peter Rodino type process and why the current situation differs. Time is of the essence.

[emptywheel]

Here's a question though.

The document got forwarded to OLC for "numbering, and handling."

Would OLC really have to normally oversee an appointment? Or was Gonzales sending it to OLC so that they could simultaneously invent a number that hid that the control sheet came out of order, and justified the retroactive post-dating.

[ExcuseMeExcuseMe]

EW - Have you given any consideration, or is there any reason to wonder or question exactly what document or how many documents were in that envelope for Ashcroft's signature? Is there any reason to safely assume that it was only what "everyone" thinks it was? I don't remember SJC asking Comey if he had ever actually seen/read what was in the envelope; just the reference to an envelope.

I'm not thinking tin-foil territory, but it might figure into the drama of the hospital visit since we now know they went ahead with the program without the signature on what was supposed to be in the envelope.

[earlofhuntingdon]

Apparently, a federal district judge in Griffin's district has concluded as a matter of law that because Griffin remains in office after his first 120 days, and his name has not been submitted for Senate confirmation, he is an AG/Patriot Act appointment whose tenure is at the discretion of the President. Seems a valid application of the maxim that the law abhors a vacuum. Sorry, no site; believe it was last week. I have not seen any response from the AG, WH, etc.

It may be like getting Capone on tax evasion, but I am delighted that the Texas Bar may soon receive an ethics complaint, alleging unethical behavior related to Gonzales' visit to Ashcroft's bedside.

Gonzo had actual knowledge that Ashcroft did not then have authority to sign as Attorney General. Ashcroft was semi-conscious and on narcotic pain killers, and so sick he'd been in ICU nearly a week. His signture would have been invalid and Gonzo knew it. If he'd played that game over a signature on a will, an SEC financial disclosure, or a twenty-year lease on a downtown Houston office building, and been caught, I think he'd be worried about censure or suspension, even in Texas.

I think that's one reason for the absurd WH spin that the Justice Dept had not informed it that Ashcroft had delegated his authority to Comey. No knowledge, no intent to break the law or commit unethical behavior. Simple mistake. Right. It's all over the newspapers that the guy who's response the President might need within minutes has been in hospital a week after surgery and general anasthesia. Glad that even Ashcroft's office has a "confirmed receipt" showing the WH received their fax notice of the delegation of authority to Comey.

Except that this is not a legal dispute about whether the WH actually knew it was committing a wrong. It's a public relations dispute - like everything in this administration - and that WH announcement that "no one told me" is an effective gambit unless this really ends up in court.

[bmaz]

EW - You wouldn't think so would you? I agree, it looks more like a laundering process.

[Andrew Foland]

Can I just be a fanboy for a moment?

EW, you're amazing.

[Petesmom]

earlofhuntingdon @ 12:12 sez, "I think that's one reason for the absurd WH spin that the Justice Dept had not informed it that Ashcroft had delegated his authority to Comey. No knowledge, no intent to break the law or commit unethical behavior."
This denial is even more transparent, if I recall correctly. The White House had already been notified by James Comey that, in his capacity as acting AG, he was refusing to sign off. Even if they were so clueless as to be unaware of SOP, they had written notification ON THE PROGRAM DOCUMENTS that Comey was acting AG. This is just an other insultingly transparent lie along the lines of, "What do you mean, after the behavior you saw in his room? We were just there to wish him well {smirk, smirk}."

These guys really are thugs. I was about to write Mafia thugs, but the Mafia seems to have more honor.

[bmaz]

This is a mindless red herring from the White House. Ashcroft's condition was crystal clear and spoke for itself. He was incapacitated and authority automatically transferred to Comey because of that incapicitation. Any discussion beyond that as an explanation is flat dishonest and laughable.

[radiofreewill]

Comey testified that during the time Ashcroft was in the hospital, he - as Acting AG - and Mueller went to the White House every morning to brief the President.

They KNEW he was the Acting AG - as delegated within DoJ.

The reason for the powerplay in the Hospital room was because Ashcroft was still the Kingdom's Designated AG - the 'paper' delegation by Ashcroft to Comey was worthless in Bush's eyes.

In the Kingdom, NOBODY tells Bush anything - his word is Law. He FULLY expected Ashcroft to sign ANY paper he put in front of him.

This is the great hope of Monica's testimony - that her witness will make it clear - in BushWorld: Bush is God - and she, as a cross-carrying, Bush-worshipping member in good standing, at the time - did his bidding without question or regard for the 'paper laws.'

She was an acolyte for Bush's higher power - Just like Gonzo and Card.

[marksb]

I can imagine Tony Snow: "No one could have anticipated that the Attorney General would be sedated..."
Great. The dog-ate-my-homework presidency. Please, can we wake up from this nightmare soon?

[Jeff]

28cfr0.180 says all AG orders (or at least it seems to be all AG orders) have to be numbered in a separate series, and 28cfr0.182 says all orders prepared for the approval or signature of the AG have to be submitted to the OLC for approval as to form and legality and consistency with existing orders. That doesn't necessarily answer the question, but perhaps the numbering is done as part of that process at OLC.

[emptywheel]

Doesn't answer the question, Jeff, but it raises a bunch of new ones. Such as: Does the OLC review normally take place before teh AG signs an AG order? You'd sure think so, since then they would have the ability to review it before it went into effect.

[Rayne]

Wow. There's something that needs to be requested if not subpoenaed, Jeff.

EW, you already asked in your list of questions for Goodling if there were other delegations. The Delegation is an AG Order and should be numbered -- and all the orders by the AG should be public, shouldn't they? what does the list of orders look like, how many orders, what numbers, covering what items? Don't even need to look at content of the order, only the title. Were there other delegations in those orders identified by number? Were there other "internal only - not published to Federal Register" AG orders?

[looseheadprop]

"The third indictment came under Griffin, signed by an AUSA, sothe AUSA's sign would make it valid in any case. But the judge did say that, even if the PATRIOT appoint was illegal, Griffin was still within the 120 days he'd be able to serve under the old law."

AUSA's signature cannot make it legal. Indictments MUST be signed by USA unless there is a written delegation in place usually to the First Deputy USA. A regular AUSA's signature and a token, gets you on the subway.

[looseheadprop]

"Does the OLC review normally take place before teh AG signs an AG order? "

Absent some kind of emergency, YES

[bmaz]

LHP - Been a while, but I recall the Criminal Chief having that authority in the local district. If Cummins had already so delegated to FAUSA or Crim Chief, until revoked or modified wouldn't that still hold even with transfer to Griffin?

[emptywheel]

I'll go look for teh opinion again--I don't think I saved it. But no, Griffin was just a SAUA when he was appointed.

What I'd love to see is if someone did something on December 15 or 18--would that be legal?

[JEP]

With all this retro-Reaganeering resurrection the R's are attempting, maybe its time to do a remake of "Bedtime for Gonzo..."

Or did I spell that wrong?

Also, as for the Ashcroft/Gonzales sick-bed intrigue, one of the most revealing, yet subtle, statements Comey made during his recent testimony was the description of Card and Gonzo's reaction when Ashcroft pointed at Comey and said "He's the AG for now."

Then Comey says, (loosely paraphrased) "Card and Gonzales refused to acknowledge me.."

That is, at least to the Sherlockian receptors in my brain, clear proof that THEY KNEW EXACTLY who was the official AG at that point in time; had they actually been unaware of the fact, and learned it from Ashcroft at that moment, there would doubtless have been some sort of verbal exchange in the follow-up.

Considering their transparent desperation, they surely would have at least tried to "convince" Comey of their case for a signature, if they "suddenly" discovered he had "the power." But their refusal do so only proves they already knew.

The fact that they refused to even acknowledge Comey's presence proves they knew everything that they later deny. They already KNEW Comey wouldn't acquiesce, which means they already KNEW he was the official AG, or they wouldn't have done the end-run around him.

Simple logic...

[JEP]

Here's one for the future online dictionary...
"Reaganeering"
Marketing and using the name and delusionary images of dead, once-popular politicians, to defer voters away from dirty laundry of the sleazy candidates available in the current election"

Gotta go...

Marcy, you are onto something here (again) so just keep after em.'

[bmaz]

EW - Not sure if your question was directed at me or not. If so, here is my best stab, at least as to what I was talking about vis a vis LHP's statement. LHP is correct that a line level AUSA would not be a binding signature/authorization on an indictment or original direct complaint; i.e. initial charging document. Such a line level signature is fine for subsequent pleadings, motions etc. once the case is filed. The initial charges, however, must be brought by the United States through it's duly authorized agent/representative, which is the USA of that district. LHP discussed that there could be a proper delegation of this authority in that particular district to the FAUSA. That is very true. I added that I actually recall seeing such authority delegated to the head or chief criminal deputy in districts I have practiced in (its been a while, but I am fairly certain). My point was simply that once such a formal delgation is made in a district USA office, I think it would hold, or stay in effect, until rescinded, revoked or modified. If Cummins had indeed entered such a delegation, even years ago, (and, again, this would be expected, the actual USA probably does not want to see every indictment generated in the office), there is no reason that order would terminate with the shift in USA duties from Cummins to Griffin, irrespective of Griffin's status before assuming the helm. After assuming control, Griffin could change it or not at his discretion. I am not sure this really impacts the angles you are covering that much; but does explain why John Weley Hall's Motion to Dismiss in Arkansas went nowhere. Quite frankly, I doubt that he thought it would, he was probably just trolling for soft spots.

[MayBee]

It doesn't say "he signed and dated Order 12/15/06".
It says he signed the order dated 12/15/06 (a way to refer to the order) on 12/18/06.

Meaning, the order was written and dated 12/15/06 and he signed it on 12/18/06. That isn't back dating.