The Secrets They're Still Protecting

by emptywheel

Breaking: Well, I guess we know why DOJ released all the outstanding Harriet Miers and Sara Taylor emails yesterday--because she just got a subpoena.

As I mentioned, yesterday's document dump was a bunch of emails that had previously appeared on the list of documents that Kyle Sampson had not turned over. There are some doozies in here--where Harriet talks about asking "the Chief" about something, where Kyle Sampson admits to deleting an email from Bill Kelley on the Pryor/Griffin affair, and Sara Taylor's repeated attempts to ram Tim Griffin into Arkansas at all costs.

But I find another question just as interesting. What are the emails that they're still refusing to turn over. After all, although the emails they had previously withheld are embarrassing and outline the White House's intimate involvement in the purge, they're still not that damning. So what is it that they're still keeping hidden?

What follows is a list of some of the outstanding withheld emails. It is not complete--just a list of emails that I find it curious, to say the least, that DOJ won't release.

No.	Date	Recipient	Content
1, 2	12/8, 12/11	J Clinger	Request for info from Senator Ensign on Bogden firing, with follow-up requesting conversation
5	12/13	Moschella	Request to discuss Paul McNulty's conversation with Ensign
19	12/19	Goodling	Discussion on AP story on Iglesias resignation
60	1/17	Samspon self-foward	Forwarding email on voicemails to Senator Sessions re: Griffin
78-80	1/22	Multiple	Draft response to Conyers letter on Lam
87	1/25	Sampson self-foward	Request from Oprison for a meeting on Iglesias
94, 95	1/26, 1/30	Jim Comey	Request for talking points, discussion about Comey's potential testimony before SJC
99	2/3	Hertling	HJC looking for Cummins contact so they could subpoena him
109	2/8	Ken Lee (WHCO)	Discussion re: articles on McKay resignation
118, 119	2/22	Multiple	Discussion on responses, press release on Chiara resignation
147	3/1	McNulty	Fred Fielding looking for briefing re: USA firings
158-162	3/7	Multiple	Discussion of draft subpoenas for Sampson, Goodling, Elston, Moschella, and Battle

When you look at the table of still outstanding emails, a few things become clear.

Iglesias Still a Secret

First, DOJ is still hiding a big part of their panic on Iglesias' firing. There were two emails in today's batch that directly address Iglesias. First, when Kyle Sampson told David Higbee (the name is redacted from this dump, but was included in the list of emails withheld) that he would hire Iglesias.

And then there's the email between Sampson and Andrew Beach (who is Gonzales' scheduler) looking for a list of the trips Gonzales had made to New Mexico. The urgency is easy to explain. DOJ had told Congress that Gonzales had not discussed firing Iglesias on any phone calls with Senator Domenici. They were, of course, parsing, hiding the fact that they had discussed such a topic in person.

Add these two emails to the several they're still withholding, and it strongly suggests that DOJ knows Domenici intervened to have Iglesias--who Sampson would hire--fired.

Jim Comey

Can anyone explain to me why the fuck no one asked Comey about those emails when he testified before the HJC and SJC? Please?

Because it sure looks like Comey got pissed off in response to those emails. So it'd sure be nice to see precisely what Sampson said that pissed Comey off so much.

Subpoenas

Notice how DOJ is still withholding every single email discussion of how they would respond to subpoenas (this includes the Comey discussion, one on Cummins, and discussions on the clique in March). Now those emails actually might be discussions about whether or not to claim executive privilege on this. But they also might be panicked emails, recognizing what someone who received a subpoena would say.

I'm most interested in the subpoena discussion in March, the one looking for Sampson's and Goodling's testimony. Because shortly after that email, Sampson resigned, Goodling took a leave, invoked her Fifth Amendment privilege, and then resigned, and Gonzales tried to coach Goodling's testimony. I'd imagine that discussion--as DOJ realized the clique was going to have to testify--is mighty interesting.

Comments

[oldtree]

Thanks Marcy. I appreciate this site among the best 5 there are. the ones that care about truth and exposure of same. For no matter what, a hidden puzzle is easier to solve as it's pieces come into light. and I thank you for allowing us to share.

[Cranky Observer]

Were I a Senator, the next letter I would send to Gonzales and the RNC would be along the lines of "you have received requests for documents A, B, C, ... Z. In each case carefully prepared and filtered subsets of these documents have been provided just prior to testimony that undercuts a storyline set up by previous subsets of documents. Please provide a full and complete list of who is preparing and filtering these document sets, and all documentation on the criteria being used to filter them".

Cranky

[JGabriel]

Withheld Email (or regular mail?): "Request for info from Senator Ensign on Bogden firing, with follow-up requesting conversation."

Wouldn't Ensign's office have a copy of this? I find it curious that Ensign hasn't provided a copy.

[Mauimom]

Marcy, as I read these this morning, I noticed @ p. 1780 a reference to "the replacement plan." E-mail was on 12/12/06.

But I thought there "was" no plan.

[Mauimom]

I particularly liked their panic over Diane Feinstein calling, and their scurring around to put together a plan to respond.

Right now I'm watching Rep. Davis (Idiot-VA) filibuster rather than question Doan. Now handing off to that idiot Mica. Shessh, can anyone watch these fools and not see what total slimeballs they are?

[Rayne]

There's another reason they don't want to go back to Higbee; he's all over the place in CNMI/Guam/Abramoff. So is Sampson. (Higbee may be responsible for Stoddard ending up in Guam; did Higbee also move or encourage moving Stoddard elsewhere?) Note the process described in the link for appointments; it's what eventually got handed off to Sampson/Goodling, with the process being completely abandoned if Sampson's and Goodling's emails and testimony are to be believed.

I think I'd be asking why the process described by Higbee was no longer SOP.

[Sojourner]

Mauimom -- that reference to "the replacement plan" stood out to me, as well, late last night when I read through them. I do not know if there has ever been a direct question asked of anyone who has testified before the judiciary committees as to whether or not a plan existed, but that reference really jumped out at me. BMAZ and maybe a couple of others late last night observed as how there was absolutely no direction to anything that anyone was doing, and no one seemed to know anything. BMAZ (I think) pointed a finger directly a Karl Rove; I think the reference here to the "plan" helps to further that thought. Rove is the man with the plan, and he is sitting behind Door #3 pulling every string he can.

[nolo]

hey EW -- it sure does
explain the release last night!

it fits, like a glove, in fact. . .

now, also BREAKING, and
very likely related to
the subpoenas issuing
this morning:

john conyers has decided
to play a game of “what’s
my line” (ref. 1960s-era
television show!) — holding
a hearing tomorrow at one p.m. on. . .

wait for it. . .

“XXXXXXXXXXXXXXX”

i am crappin’ you negative!

take a look!

[i suspect sara taylor or
harriet miers will appear. . .]

[orionATL]

well,

one reason, no doubt among many, might be that the white house fears losing troops-discipline in the congress.

even with the current crop of boot-licking republican congressmen, the white house may fear a back-lash if the perception takes root that they have treated their own congresspeople like they treated the evangelicals -

with contempt for their importance and their prerogatives.

[dalloway]

In addition to our undying gratitude for all your analysis, EW, I think you also deserve a big shout-out for mobilizing a (virtual?) army of bloggers to comb through these documents along with you, resulting in nuggets like the one spotted by Mauimom and Sojourner above. You rock, guys! Keep up the good work!

[Mimikatz]

Marcy, for you they should create a new Pulitzer category for live response to breaking news or some such Blogger Prize. You are truly amazing.

How can they claim Exec Privilege for conversations that didn't involve the Prez? For advice that wasn't for the Prez himself but on how to cover their own backsides? Or to protect Rove? (Who is my bet for "the Chief")? It seems to me that for Exec Privilege to really apply, they have to connect it to Bush directly. Otherwise any conversations among underlings automatically are covered by Ex Priv, and I don't think that is how it works.

And I do think they are trying to hide the contempt with which they treat Congress when speaking among themselves in their sandbox.

[bmaz]

Mimikatz - Fielding is counsel of record for the Whitehouse. That, really, is no different than any other lawyer. He has a client and must protect privileged communications between he and his client; but he is also the contact point and representative for procedural issues etc. If I am suing you and you are represented by counsel, I cannot talk to you in or out of court, but I sure as hell can your lawyer and he is obligated legally and ethically to have such conversation. The committees should bring Mr. Fielding down for an extensive chat and be prepared with a litany of questions on procedural issues, record keeping etc., anything not definitively protected by privilege. And don't accept any dissembling. If you want records, haul the freaking custodian in and put him on the record. NOW. Sometimes I start to think the committees are being smart. There are few of these moments; mostly it has looked like timid rank rookies at work.

[tekel]

hey bmaz, a question for you: if Mr. Fielding, as an officer of the court, becomes aware of illegal behavior on the part of his client (the White House), would a professional code of conduct obligate him to disclose that?

And an interesting (although somewhat OT?) thought for all the Constitutional Law scholars out there. I've been doing some reading this summer of the debates at the constitutional convention and the Federalist. I find it pretty ironic that the same people who claim to be "textualists" or "strict constructionists" are in the same camp as people pushing the theory of the "unitary executive."

As the neocons use the term, Unitary Executive means that everyone who works for the President should be covered by essentially the same legal protections and privileges that apply to the President himself. But that's not what Madison or Hamilton had in mind when they wrote the Constitution in the first place.

The whole point of having a so-called "unitary Executive," that is, of vesting executive power in one person, was to avoid the kind of buck-passing kabuki we've been subjected to for the past four years. Madison and Hamilton both wrote extensively about how a single executive officer would be more responsible for his actions, and less able to hide behind a privy council to justify decisions he had made. They also wrote about the remedies that citizens would have against a malfeasant executive- they would not re-elect him, or they would demand an impeachment. Madison recognized that impeachment would function much better when there was only one guy on the hook. Hamilton argued that having a single guy who could be removed if he led the nation in the wrong direction was an important distinction between electing a President and creating a King.

The current administration, and conlaw nutjobs like John Yoo, seem to be arguing that the exact opposite is true. Their position is effectively, "Never mind strict construction or original intent, unitary executive means what we say it means, not what Madison or Hamilton said it means. And we say it means that the Office of the President includes lots of people." Given the text of the debates and the Federalist essays written by Hamilton, this strikes me as a remarkably flawed interpretation of the meaning of the supreme law of the land. Kinda makes me wonder why Berkeley is still paying John Yoo, when he's so obviously wrong about something so fundamental to his claimed area of expertise.

[bmaz]

Tekel - Interesting question. I don't know the answer, but my knee jerk (I may be a bigger jerk than just the knee, mind you) reaction is yes, he has the same ethical duties as any other lawyer. This is a good question for John Dean. As to your Constitutional interpretation and reading of the Federalist Papers etc., I absolutely agree with you.

[tnhblog]

Sarah Taylor just about indicted herself and Rove with this statement she made in an email:

"Taylor called Cummins "lazy" and said that was "why we got rid of him in the first place." Cummins, reached Tuesday, said, "I don't know how Sara Taylor would have any information about my work ethic."

Who is this "we" and what business did they have in "getting rid" of Cummins?

[dotsright]

Someone on another site said that the subjects of these released emails didn't seem to match up very well with the titles or subjects they were given when they were still among the unreleased documents. I don't have access to their original subjects so can't comment.

Perhaps giving misleading subjects to the still withheld emails is going on.

[Jodi]

emptywheel,

it appears very simple to me. The Bush Administration knows that whatever info they give out, there will be more and more demands. So what they are doing is just slowly, ever so slowly, maddeningly slowly dribbling the information out.

Another thing that I know you never think of is that, there may actually be no smoking guns there.

[freepatriot]

well shit stain, you're about the only person on the planet whoi believes there is no smoking gun

so I'll let you in on a few clues:

google the name "Wilhelm Kietel", and study the Nuremberg ruling about the "sentencing enhancment" that made Kietel eligible for the death penalty

then go read john yoo's memo about the Geneva Conventions

that's called a "Smoking Gun"

and it relates to a clearly defined legal prinicple in international law

and it results in a undoubted sentence of death

you could look it up

but i doubt that facts and historical prescedent will affect anything you "Believe", shit stain

so you just cling to your "Beliefs" and remain a shit stain for the rest of your life

you seem to be happy as a shit stain

[Mimikatz]

Bmaz, I understand attorney-client privilege, but I thought Exec Privilege was for the advice given to the Pres or a top exec officer, different from a-c privilege.

And didn't one of the Clinton cases say that the Prez as Prez doesn't have the same a-c privilege as an individual because the Counsel to the Pres is a government employee, not paid privately by Bush (as opposed to his personal criminal lawyer who he hired a couple of years ago when the Plame first hit the fan)?

[bmaz]

Yes and yes. But for the limited analogy I am making, that only reinforces what I am saying; which is simply that there is a lot that IS proper to ask Fielding and they should start asking on the record. I am tired and frustrated with the letters. It is a tic I have; I like to put assholes on the record ass being assholes. They never like that and every now and then it comes in handy. Probably I am just cranky.