Senate Dems Corner Bush and Gonzales on Their Attempt to Game Appointments

by emptywheel

Oh, this is getting fun.

Remember how I pointed out that Steven Bradbury, the guy who wrote the opinion declaring Harriet immune from having to appear before Congress, was not acting with proper authority?

Well, Leahy, Durbin, Feingold, and Kennedy have raised the stakes on that issue.

We write seeking information about a memorandum issued on July 10, 2007, by the Justice Department's Office of Legal Counsel (OLC), concluding that former White House Counsel Harriet Miers should be absolutely immunized from responding to a subpoena to appear and testify before Congress. The White House and Ms. Miers are relying on this opinion as the basis for Ms. Miers' refusal to appear yesterday before the House Judiciary Committee.

There is a serious question about whether this OLC opinion was properly issued. Under applicable law and regulations, the Attorney General has delegated to the Assistant Attorney General of OLC the authority to render opinions and legal advice to the various agencies of the government. The Assistant Attorney General may delegate this authority, but he or she must supervise the delegated work. When there is no Assistant Attorney General, confirmed or acting, the Attorney General must supervise the delegated work. Since you have recused yourself from matters relating to the U.S. Attorney's scandal, it is unclear under whose supervision the July 10th OLC opinion was issued.

The letter goes on to describe why Bradbury cannot be the acting AAG, explaining what I reported yesterday about the Vacancies Act violation, and therefore had no authority to write the letter.

This move is so priceless on a number of levels. The letter goes on to place this against the background of Bush's attempts to game the appointments process with the original PATRIOT provision. The suggestion is that this is another attempt to do so (one that parallels his apparent attempt to stretch out the tenure of the USAs currently serving under the PATRIOT provision). It also emphasizes that Bradbury was never approved as AAG (by a Republican Senate) because of his implication in the NSA scandal. And then reminds Gonzales that the problem is that Bush refused to allow OPR to investigate whether the OLC acted improperly under Bradbury. This letter has it all: USA Purge, NSA Scandal, and abuse of Executive Privilege, all rolled up into one.

And if the letter was written without the proper authority? Well, then, Harriet is in contempt by anyone's measure, not just John Conyers'.

Comments

[Frank Probst]

I have to disagree with you on the last point. Harriet Miers isn't the one in trouble here. Gonzales is. He appears to have delegated an authority that he was required to supervise, but he didn't actually supervise it. Miers can reasonably argue that she believed the memo was properly issued. Gonzo, on the other hand, can't say that he followed the law here. Either he supervised the memo, in which case he was involved in an issue that he'd already recused himself on, or he didn't supervise it, in which case he illegally delegated his authority. Either way, Gonzo is the one on the hook, not Miers.

POTENTIAL IRONY BONUS POINT: The whole story will move up one whole notch on the irony scale if Gonzo "can't recall" whether or not he supervised the memo.

[jonno]

well let's hope that this all comes to a head SOON. need to start reigning these folks in.

[*xyz]

The point of the impeachment spear is being sharpened.

[Taxpayer]

This story needs to be repeated ad nauseum. Very true, this brings together a number of elements of Bush's malfeasance: USA Purge, NSA Scandal, and abuse of Executive Privilege. I agree that this puts Gonzales in a little more hot water (though that hasn't gotten him burned yet), Miers is also a lawyer, was White House Counsel, so she should be familiar enough with the law to know that her refusal to testify was bogus.

[Neil]

EW, So many new developments so little progress. I've been aware of the drip, drip, drip of corruption scandals for years now. When will the flood gates burst open? I'm not impatient, I'm just unconvinced we can get it turned around.

[Neil]

OT
Have you written your congressmen today to explain why impeachment proceedings are necessary to protect our constitional democracy?

[Kagro X]

I don't know how much weight it carries in determining the validity (or lack thereof) of the opinion rendered in the memo that Bradbury shouldn't have been delegated the task of writing it. It can certainly be reissued under someone else's name with no changes.

The issue that comes to my mind with the fact that Bradbury shouldn't be serving is what recourse does the Congress have when they discover that people are serving in these positions who shouldn't be? And what implications might that question have for, say, the continuance in office of Jeffrey Taylor, when the time comes to sit on contempt of Congress referrals?

[looseheadprop]

Oh, how much do I love this?

Leahy is snarking up the place, alright. This is priceless.

If Gonzo tries to claim that HE supervised, wanna bet we will be treated to a "Paper Chase" quality Socratic method questionng of Gonzo on the particulars of the case law?

Oh, and sorry to disagree with you Frank, but Harriet Meyers in potentially in disbarment land.

As an officer of the court she CANNOT (at least in most state, maybe Texas is different) flought duly issued legal process such as a subpeona.

She didn't move to quash, she didn't show up like Sara Talyor (acting on the excellent legal advice of the obvioulsy not crazy Neil Eggelston, a lawyer who enjoyed a superb reputation when he was an AUSA in SDNY)did, the only legal defense she would have in a disbarrment proceeding would be that she was relying on this memo from OLC.

In some states that might not be enough b/c she would have her own duty to read the research and conclude in her own mind that the memeo was correct.

[albert fall]

Coiled spring.

67 Senators needed for impeachment.

The Reps won't move until they have the video from the bank camera showing Gonzo with a gun and a note to the teller, but things keep getting closer.

The WH has to make up lies on the fly, and so the lie they told before won't always match up with the lie they need to tell now, or with the evidence.

[realworld]

Hmmm, can she sue Bradbury for malpractice?

[looseheadprop]

Kagro,
When you say it could be re-issued in someone else's name, how would that change things?

The AG had to "supervise" in order to delegate. If he did not supervise it when it was first drafted, ie, did not read any of the research or approve any of the conclusions; how could getting some forced plagerist to put their name on it cure that?

[Frank Probst]

looseheadprop--In Texas, I suspect that the OLC memo will serve as her get-out-of-jail-free card. The state bar won't touch her on this.

[looseheadprop]

Meirs cannot sue Bradbury for malpractice. He was not her lawyer and he had no duty to her.

In some states, as I noted above, she has her own independant duty to come to her own conclusion about the correctness of the OLC memo.

Even so, she still may have had an obligation to move to quash (using the memo as a basis for her motion)

[looseheadprop]

Frank,

You are probably right, but that makes me sooooo sad

[emptywheel]

Kagro

The issue is a little different with Taylor than it is with Bradbury. There is a legal means to replace Taylor--a district court judge does it.

And oh wouldn't Reggie love an opportunity to tweak BushCo at this point? Not sure it'd be Reggie, but still...

Also, I think AGAG is between a rock and a hard place. I don't think he can delegate his supervision here. And he certainly hasn't done so. So he can't delegate it to Clement, which is where it would properly go (since Clement, in spite of the fact that he is already defending the WH on this stuff, is "in charge" of the investigation since Gonzales recused himself). But the other thing is--CLement is getting cold feet on some of this stuff. This opinion may well have come from Bradbury because he was willing to write it. And I'm not sure Clement is willing to do so.

[Kagro X]

I just don't see the questions of supervision as a fatal defect in the memo. The substance of the memo is defective enough as it is.

What's of interest in the supervision question is why DOJ isn't abiding by applicable statutes and regulations when rendering OLC opinions. So what do we think the SJC does if DOJ says, "Oops, that's right. Our bad. Here's the same memo, but with a full explanation of the chain of command that went into it."

With so many other clear and inexplicable violations on their plate, I have a hard time believing the SJC won't consider this defect cured if DOJ sends someone to beg forgiveness, but then hand over the same opinion.

[emptywheel]

I'm not sure I agree, Kagro, for several reasons. One, because by raising the issue of BushCo abusing appointments, then it places appointments back front and center as a leg issue--thereby refuting Clement's whole argument for executive privilege. I also think DOJ CAN'T just reissue. Either Gonzales has to unrecuse (in which case you've got your fifth reason why HJC must take over this investigation--which is where I think they're going). Or Clement has to do it, if it's legal, and I rather suspect he won't do so (could be wrong, though).

The other effect this has is to back up all the DOJ issues--they can't give Harriet immunity until they get a new OLC head, they can't get that until they start cooperating, they can't get either until they turn over the NSA stuff. Sure it might not work. BUt it's certainly an interesting chess move.

[Frank Probst]

Kagro X--They're running out of people who can legally render an opinion. The DOJ is falling apart. I'm not sure they've got many people left who are both eligible to write such an opinion and willing to do so. They're trying to run out the clock here, but it doesn't look like they're going to make it. Eventually, Bush is going to have to nominate someone who needs to be confirmed by the Senate. Then the fun is REALLY going to begin.

[Kagro X]

It certainly has the effect of refocusing the issue of abuse of the appointments power. But I don't think it advances the ball all that much. You can never tell, but I would think that dam is either going to break or not based on the million other pieces of the puzzle. But if it helps, I'll take it.

Still, aren't the immunity claims are both makable testable whether OLC issues an opinion or not? It's nice to be able to carry an OLC opinion with you into court, but I don't think it's necessary to have beforehand. Especially if it's a stupid and specious opinion to begin with.

[John Lopresti]

Leahy has sent a brief, yet verbose, set of interrogatories to Gonzales, allowing a few days for the attorney general to reply prior to the hearing scheduled. One interrog captures some of the complaints Leahy et al air regarding of the OLC advice on Miers, citing the appointment statute, there.

[emptywheel]

Um, John? I did a post on that yesterday, which I reference in this post.

[readerOfTeaLeaves]

Burnham Wood may not be on its way to Dunsinaine quite yet, but I hope this signifies that tree cutting has commenced.

If I correctly understand this post, the OLC memorandum is the legal equivilent of letting someone replace my car tires with four donuts, and allow them to attach the donuts to my vehicle using the legal equivilents of paper clips and spittle.
Good to know.

Please don't let these fools prosecute actual terrorists; they're over their heads even trying to write a memorandum, for Chrissake.

On one level, funnier than hell. On another... utterly terrifying.
Leahy and the Dems need to prevail, and the sooner the better (simply for the national security implications alone).

[tekel]

Had an interesting suggestion at the bar last night- if we sell Texas to the Mexicans, does that instantly de-president Bush, becuase his official residence will no longer be part of the United States?

We were three or four pints in, so of course it sounded like a great idea at the time.

[pseudonymous in nc]

Oops. The DOJ and WH appear to have, um, shat in their own nest on this one. I hope the staffer who pointed this out -- if it was a staffer, since I don't think a blogger caught it -- gets a Christmas bonus.

Emptywheel's point, I think, is that this little vignette illustrates how compromised the upper echelons of DOJ have become thanks to the combination of resignations and recusals, delegation powers and dodgy appointments, and the White House's role therein. They've painted themselves in a corner to the point of having white-tipped shoes.

[sojourner]

Tekel, that is an interesting thought... But, could we draw the line at about 20 miles north of Waco? I live in north Texas, and aside from the fact that some of his supporters live in this area, it is not a bad place to live ;-) They would not have anyone to support then, so maybe it would restore them to sanity... Nice thought, anyway ;-)