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July 25, 2005

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Today's story adds to what we know in this sense: The most serious corruption scandal facing the country since Watergate now involves the White House Chief of Staff directly, instead of peripherally.

So let's see. Chief of Staff, current Attorney General, former Attorney General, the Deputy Chief of Staff, the Vice President's Chief of Staff, the National Security Advisor... am I leaving anyone directly in the crosshairs out?

Wow, those are some "extraordinary circumstances" under which to be nominating a Justice to the Supreme Court.

especially one who forgot he was on the steering commitee of the federalist Society.

I('m sure he was distracted by this widening scandal.

Kagro,

There are a few more: Hadley, Bolton, everyone at OSP. It'll be one crowded paddywagon if they actually indict everyone who ought to be indicted.

DemFrom,

It's important to remember, when we're talking about obstruction charges, that there are 4 times when Abu G may have been involved in obstruction charges.

  • First, there was a 4 day delay before the WH was officially told about the investigation.

  • Then there was this famous 11-12 hour gap, in which Andy Card definitely knew what was coming.

  • Then there were the two weeks Abu G's shop took to review the materials.

  • Then, when Fitzgerald came on in December and asked for more records of conversations, there was the same stall, review gap.

    I speculated that there is a document that was in Condi's briefing book that didn't make it to the SSCI. What are the chances that that memo got buried in the roughly 3 weeks total that Abu G bought the WH?

Gonzales talking to Card is the clearly suspicious part of this whole process. Transposing things to the private sector, if I found out in the evening about a criminal investigation involving my client, I might indicate that I'll let them know to preserve all their documents in the morning. And when documents are gathered, you can bet I'm going to review each and every document to make sure it's relevant to the investigation and not subject to a privilege, and that could take a while.

But there would be absolutely no excuse, after I've told the authorities I'll pass the message on in the morning, for me to give my client a heads up. That's extremely unethical. But more to the point, regardless of when Gonzales sent around the e-mail, I feel confident in saying that the order to preserve documents was binding from the moment Gonzales talked to Card, as a matter of law. Once the White House is on actual notice of the investigation, no way are they free to destroy documents until they get the "formal" notice.

This stuff is notoriously hard to prove, of course, which is why people do it.

It is certainly a lawyer's duty to review all his/her client's documents before passing them on via a document request. Steve is right that that is not suspicious in itself. And without the tip to Card, waiting until the morning isn't so suspicious. But with the tip-off to Card, the big question is who did he talk to, because at that point neither he nor Gonzo would probably have known about relevant documents in intimate detail, given the size of the federal gov't. This what Arthur Anderson went down for, IIRC.

And for the detail-obsessed, a series on the Niger stuff is running on The Left Coaster, which promises new revelations on the forgeries from someone in the know.

I takes a lot of destroying to destroy a White House document. Every primary document leaves footprints and reflections and shadows and echoes and ghosts.

Still, the heads-up is unseemly.

The heads-up may be more than just unseemly. Gonzales, calling his "client" in his capacity as White House Counsel, gives advanced notice of the investigation, but not the order to preserve documents? Wouldn't he have an affirmative duty to explain that order, and its ramifications, to his non-attorney "client?"

If the knowledge of the order to preserve documents can be imputed to the White House by this phone call from its Counsel to its Chief of Staff (and it should), then wouldn't Gonzales also have had a duty to pass on an explanation of the order? Of course. And yet, no mention of it. In fact, the only discussion of notice to the White House of that order is that it was given twelve hours later. That in itself may be malpractice. And when you're the White House Counsel and your client is the White House, and the issue you're giving counsel about is the outing of a covert CIA operative, which itself was executed as part of a larger scheme to impede and impair the work of the established military and intelligence functions of the United States, you may have a problem on your hands.

Steve,

It was you I was having the conversation at DKos about whether the recent SCOTUS decision on Arthur Anderson would affect this, right? Mimikatz (or other people who are smarter about the law than I), care to weigh in? Does the SCOTUS decision give WH an out for the delay in informing people? (Although, the document retention rules are certainly different for the WH than even an accounting firm).

RonK,

I suspect that if things were tampered with, it was in the replacement of records or the editing of emails. Which might make it easier. Particularly since, as has been pointed out frequently, Fitz has been relying on Scooter's hand-written notes.

The Carpetbagger expands on this to point out that since the White House actually knew the investigation was coming on Friday, Sept. 26. Sept. 29 was the formal notification. Which means they had an entire weekend to dispose of inconvenient documents.

My quick read is that the Supreme Court overturned the Arthur Andersen conviction because the jury instructions were too broad--they allowed a conviction even if Andersen people sincerely believed that what they did was lawful.

Remember the Andersen guy sent around an e-mail reminding everyone of the "document retention policy", which actually allowed many relevant documents to be shredded, before the order to retain documents came from the SEC. The Supremes said that for an obstruction conviction it had to be shown that the subsequent destruction was done for the purpose of evading the SEC inquiry.

Here I would think it would be easier to prove that any shredding that went on wasn't innocent. The problem, of course, is proving that documents were destroyed. And as Ron says, so much paper and electronic records are kept that it is hard for the gov't to hide things forever. Witness the e-mails in the Iran-Contra hearing that they thought were deleted.

In this case I think that if the prosecutor is going down the obstruction road there will be a fair amount of evidence. These folks don't seem to have believed they were doing anything wrong, and certainly didn't believe themselves to be in any danger, especially at the outset. Certainly the prosecutor would not embark on indictments without a pretty water-tight case. That's why he's going after Miller.

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