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May 17, 2007


I thought we were operating under the assumption that Bush simply CAN'T let Gonzales go under any circumstances.

WOW! Marcy, I think you NAILED it. I have been of the theory that Schumer somehow made a very clever move to get Comey in as he did--but leave it to you to put the puzzle together.

I am in awe....

But ... as usual ... where's the outrage? The traditional media has scarcely touched the Comey bombshell. I just don't get it.

DiFi now knows the extent to which she has been lied to in the Intel Committee; that's why she is out front on the no-confidence vote. Schumer has played rope-a-dope with Gonzales (and Bush) and knew all along what Comey would testify to. The Senators up in 2008 must be quaking in their boots thinking of the commercials that their "confidence" vote may engender after more revelations. Note, they will probably have the vote befpre Monica Goodling testifies.

And then will they also have to vote to override Bush on the Defense Bill that he has threatened to veto because it supports the troops a little too much?

Obssessed: Rock & a hard place.
Bushie CAN'T let Gonzo go under any circumstances. (the confirmation hearings for his successor will be a nightmare for Bushie)
But Gonzo will be gone - soon - hopefully by impeachment.
Rock & a hard place.

I think the bit about Comey not being forced to testify was a jab at Specter. Schumer's making the point that we would have known about this last year if Specter had called Comey.

Wow - nicely done. I think you're right that there's no graceful way for Gonzalez ro go, but I think Bush, if he can, will prop his rotting politial corpse up until he has to leave office, because he won't get anyone he likes to succeed him.

Impeachment would be nice...

These clucks would not know graceful if it hit them in the head. Your logic here on the timeline progression sure looks sound to me. On a related subject, I saw your update at FDL on Griffin's status. As I said before, there really was no other alternative to this position. But it is sleazy and, I still maintain, directly contradicts both statements and sworn testimony. I know John Wesly Hall through NACDL and he is a very good criminal defense lawyer. I'll bet he put them on the spot pretty good. If anybody here remembers the committee tetimony where any DOJ officials, including Gonzales, said the Patriot act was not used,would you please be so kind as to post it.

The assumption that Gonzales would stay was based on Bush not wanting to can him, especially not seemingly to do so to placate Congress. Also his fear of what would come out in the confirmation process for a successor.

But Bush may be approaching the same kind of rock-and-a-hard-place that Comey put him in. If he doesn't can Gonzales, the investigation continues, more and more comes out about the illegalities, and ultimately Congress may well impeach Gonzales to remove him. If he does, the investigations will continue, and there will be all kinds of conditions put on the new AG in his/her confirmation, plus maybe no hearings at all until BushCo coughs up the documents they have been withholding. (Memo to Reid--no official Memorial Day recess--a few have to stay in town.)

The real question is what more there is that Schumer and others know can come out. What is the critical mass that completely undoes Bush?

The problem with the media establishment admitting that there are very, very serious problems with the Bush/Cheney regime is admitting (1) their complicity and (2) their near complete failure of judgment. Plus, we were right and they were wrong. Hard to accept. But the country is at such a dangerous pass that conversions like Fred Hiatt's have to be encouraged.

Am I the only one who has never heard of "deliberative priveledge"? It sounds neat, but I have simply never heard of it before. Now, IANAL, nor do I play one on TV, but I thought I had a good grasp on priveledge, from a study of Watergate. But what is this? The priveledge to deliberate about doing things shamefully illegal, thoroughly immoral and completely unjustifiable?

God bless Chuck Schumer. And God bless Emptywheel. EW kept saying the very "unpublicized" Comey hearing. But sometimes I think, "Well the rest of the world isn't as OCD as the blogosphere." My husband teased me b/c Comey was on our family calendar alongside PTA meetings and soccer games. Anyway, smart Schumer knew best to let this one fly under the radar.

Gonzales has to go or we continue living in a police state so I say bravo Difi. But now my OCD has transferred over to what was this program Comey, Mueller, Ashcroft, et al, objected to, something pretty scarey.

don't be so sure wolfowitz is gonna manage a "graceful" exit

the stupid comb licking puss bucket just can't let go

to steal a quote from the movie "Citizen Cohn":

we're gonna have to lance this boil on the body politic in public

lots of bushista "Boils On The Body Politic" right now

is anybody counting the crooks anymore ???

Lizard--re "deliberative privilege:" Its rethug-speak for conspiracy to commit a crime.

The failure of the media to get this is a reflection of corporate efforts to usurp professionalism that have been underway for nearly three decades now. The media and the medical profession were the first to succumb. The ascendancy of accountancy is another reflection of this trend. It is an effort to elevate actuarial and profit motive concerns above professional concerns of truth, justice and health for instance. Dean was campaigning on this theme in 2004 and this is one of the points of policy clarity that made him so threatening to the minders of the corporate media.

The legal profession has been one of the last bastions of professional independence, but the practices of the current administration with respect to the Department of Justice have intentionally targeted this independence. It is the same campaign designed to smear "trial lawyers" like Edwards, revamp the jurisidtional rules around credit engendered in the new bankruptcy bill and to limit the federal jurisdictions where class actions may originate. The corporate media is not outraged at the behaviour of Gonzales and Card because the corporate interest would expect the same thing from their own legal counsel irrespective of professional ethical concerns. Part and parcel to this are memes of plausible deniability, pretext and authority shell games that have devolved in defense of corporations away from accountability again in the spirit of maximizing the monterization of the society where professional goals serving individuals are sacrificed for the bottom line and the accrual of power to the executive class. It is the Enron game.

There is some glimmer of hope that there are some lawyers left, who though belatedly, are standing up against the temptation to sacrifice their duty to the rule of law for expedient positions advocated my administration principles that disregard the rule and serve merely political interests. This rings of tyranny, no? The existence of an objectivity of standard is the mark of legal professionalism. Inherent in legal professionalism is the right to make a good faith argument for a change in law or interpretation. To pursue arbitrary purposes using sophistry and disengenuous rhetorical trops of misdirection, suborning undue influence, and failing to as governmental lawyers to exercise the quasi-judicial functions of an office with stict adherence to existing standards misses the professional mark severely.

The question then is how to get the genie back in the bottle. With Democratic presidential front runners seduced by the power the executive now exercises, the courts yet engaged, and the majority in Congress slim one can only hope that the professions and the population find ways to reassert independence in the face of the tyrannical instinct now so fully gripping the imagination of our both our politicians and the media.

The ultimate risk is the slow creep toward a control economy that in many ways must motivate any push toward a "permanent majority."


Yes, I often return to your point--that they need to get Gonzales gone, but they also need to get him gone in such a way as to be able to dictate successors. Schumer has already named Comey as one person he'd find acceptable (you think). And I do believe he's throwing nukes now to get there.

"Deliberative process privilege" is a privilege claimed by people in the Executive Branch to cover advice given to and discussions with the President (or Governor or other high official). The basis of the claim is that unless the decider gets advixe that will not be later revealed, s/he won't get the candid opinions of the advisors. It includes advisors who are not lawyers. But while the attorney-cleint privilege is based on the constitutional right to an attorney (the advice has to be confidential or the representation is undermined), the deliberative process privilege is made up and has had varying success. It has some reasonable basis, but usually the situations in which demands are made to know the advice given are where there is a strong suggestion that there was wrongdoing of some sort, and so the interest in getting to the bottom of the issue might outweigh the need for candid advice.

Am I the only one who has never heard of "deliberative priveledge"?

no, but you may be the only one who's ever spelled it like that!

so what is it anyway?

the stupid comb licking puss bucket just can't let go

Actually, MSNBC sez it's "breaking" taht he's about about to kick the puss bucket


Mimikatz, if I understand you correctly, it is identical to executive priviledge, or, rather, executive priviledge is an example of deliberative process priviledge? If so, I must say that I am struck by the way he is choosing his words, and wonder if he isn't trying to lay the basis (dumbing us down beforehand?) to expand the traditional meaning of executive priviledge.

Forgive me, I am almost incapable of remembering to spell-check posts. I blame it on Righteous Liberal Anger and laziness.

J. Thomason's point is well taken. There is (or sued to be) a difference between government and private lawyers. While private lawyers should give candid advice, too often they become facilitators for whatever illegalities their clients want to indulge in or have indulged in. This is not new--I remember my father saying that 50 years ago in reference to crooked businessmen.

But as Comey pointed out in his farewell address, government lawyers are different, because they have the power of the State behind them. They should never a accuse without cause, and it is their duty to make the government follow the law. They are the limit setters, in other words. The government lawyer's clients are the People and the Constitution, not the individuals who temporarily hold an office. The system of government, and keeping it healthy. One thing I am proudest of is a footnote in a major appellate opinion in a case i argued remarking on the "commendable candor" of the State's Attorney in admitting that something had not been done properly.

The Gonzales DOJ has spit on that tradition to facilitate the power grabs of Bush/Cheney. That way lies dictatorship. These are people who have no sense of right and wrong.

Lizard--I don't remember exactly, but I think Nixon argued a very expansive version of Executive Privilege. Deliberative process is a way to try to extend privilege to drafts, advice memos and the actual substance of discussions that led up to a decision, at least in cases where either an administrative record isn't required or its contents are not specified to include such things.

There is also a principle that courts don't inquire into the motives of an executive or legislative decision--the decision speaks for itself. The problem is that most administrative law presupposes the gov't being basically honest and playing by the rules. Definitely not so with this crowd.


"The real question is what more there is that Schumer and others know can come out. What is the critical mass that completely undoes Bush?"

That's exactly the point I have been trying to make with my comments over the past couple days. I am convinced that Schumer, Leahy, DiFi, Rockefeller know a lot more than has been publicized. The Intelligence Committee must know what the "legal" issue with "that" program was that caused Comey and even Ashcroft to puke. They also know about many "programs" - maybe not everything. The question I have is do they have the evidence or do they need more testimony or a grand jury to unearth the evidence that all TNH readers know were criminal actions by the President and the WH?

"The problem with the media establishment admitting that there are very, very serious problems with the Bush/Cheney regime is admitting (1) their complicity and (2) their near complete failure of judgment."

The corporate media will try to do a Tenet. Absolve themselves of any blame. Since they control the airwaves and the printed word in the major publications they will not rock the boat until it is clear that the boat is taking water and there's no way to plug it. I don't really believe that there was a failure of judgment in the corporate media - they were collaborators in the Bush/Rove/Cheney enterprise. I was particularly interested in Kelly O'Donnell's question about the role Bush played in the Ashcroft hospital bed drama and Bush's duck. Will the corporate media now take it to him on the "programs" and the criminality involved? Or will they wait until there is clear evidence of criminality that they cannot ignore? This is not about what the President knew and when, this is about what the President did!

I remember seeing Wolfie in line at the supermarket once, when I lived in Bethesda. This would have been around late 2003, when it was clear to the world that there wasn't WMD's and his predictions about the war paying for itself were revealed to be fantasies.

I wanted to call him out as a scumbag - right there in line with all the old Chevy Chase matrons - but common sense got the better of me... his SS detail was right out there in the parking lot.

So good to finally see him getting some of his.

I've been thinking about Olsen's role in all of this. Interesting that he resigned in July of that year. The WaPo wrote: While his departure at the end of the Supreme Court term is not a surprise, Olson is known inside the Justice Department to be unhappy that he was not informed about controversial memos authored by the Office of Legal Counsel on the use of harsh interrogation methods on detainees overseas, according to a department official who declined to be identified because of the sensitivity of the issue.

Olson was among the last remaining Justice officials who helped craft the administration's controversial and aggressive legal strategy on terrorism after the attacks. His departure closely follows the announcement last week that the head of the OLC, Jack L. Goldsmith III, also is resigning.

We'd have some real fireworks if Schumer asked old Teddy-tay to give his recollection of events.

Cheney and Rove must be burning the lines twisting arms expecting most of the Repubs to be like Specter - all bark but click the heels when its time.

This vote will be critical. What's the implication of no-confidence? Its not the same as impeachment when he is forced out. Bush will not remove AbuG unless he knows he will lose the impeachment vote as that would mean a more independent AG and then the walls come down as there is no way any independent AG would not investigate the Presidential order to proceeed with the "program" despite OLC refusing to certify. And of course that would also mean the Abramoff, Wilkes-Foggo, etc prosecutions and investigations will keep coming closer to the Oval Office.

Heh. 'Splains why Swopa didn't answer me at FDL...

A very long letter explaining to Gonzo how the world works.

From the Gavel:

"Conyers and Nadler Write to AG Gonzales

May 17th, 2007 by Jesse Lee
Today, House Judiciary Committee Chairman John Conyers and Constitution, Civil Rights and Civil Liberties Subcommittee Chairman Jerrold Nadler sent a letter to U.S. Attorney General Alberto Gonzales urgently requesting answers to specific questions as well as greater access to information on the NSA’s domestic wiretapping program, in light of new revelations from Deputy Attorney General James Comey’s testimony before the Senate Judiciary Committee. Comey described, in great detail, former White House Counsel Gonzales’ attempt to override Justice Department recommendations not to re-certify the program.

The letter asks for responses to the following questions:

1) Is Mr. Comey’s testimony about the events of March, 2004 as provided this week to the Senate Judiciary Committee (a copy of which is enclosed with this letter) accurate and, if not, please explain your version of what happened; 2) Was the classified program referred to by Mr. Comey the Terrorist Surveillance Program, as it existed prior to the changes made according to the Justice Department’s recommendations and, if not, what was the classified program that Mr. Comey was referring to? 3) Who was involved in deciding to seek approval from Attorney General Ashcroft from his hospital bed and who made the telephone call to arrange your visit to his bedside; 4) What was the basis for the Administration’s decision on March 10-11 to continue with the program despite the Department’s objections, how long did it so continue. Please provide copies of any legal or other memoranda on the subject; 5) What was the basis for the Department’s objections to the program. Please provide copies of any Office of Legal Counsel or other documents relating to those objections; and 6) What changes were made to the program to resolve the Department’s objections?"


"The Gonzales DOJ has spit on that tradition to facilitate the power grabs of Bush/Cheney. That way lies dictatorship. These are people who have no sense of right and wrong."

Nicely said mimikatz! "Just trust me" has no basis in law or democracy.

The only thing I'd disagree with is that I DO believe they know the difference between right and wrong. You don't work so hard to cover up those things you truly believe are right.

Even their hero, Raygun, stated "trust but verify." When one is right (and lawful) they have no fear of the truth or transparency.

randiego: I remember seeing Wolfie in line at the supermarket once [...] I wanted to call him out as a scumbag

You should have beat him to death with a sack of oranges.

ab initio --

I agree that the vote will determine whether Bush can hold on to Gonzales. I've been convinced all along that AGAG won't resign and Bush won't fire him. They have been counting on Congress being too spineless to impeach Gonzales, and so far it was working for them. Comey just blew that all to hell this week though, so now it comes down to the question, if enough Repubs turn their back on W for this one, then impeachment becomes inevitable and the resignation will happen before you can say "golden parachute".

This week though, I'm finally beginning to think the WH has overplayed it's hand. They waited too long to cut Fredo loose and line up someone like Alito or Roberts (i.e., a Bushie at heart, who doesn't smell too bad to get through confirmation) to take his place and cover their backsides. All of the scandals have big neon signs pointing directly at the WH and now with Comey's testimony, Bush himself. So much for the fall back position that everything bad was Cheney's fault. Had that remained intact, Bush could have set Cheney up as a fall guy if needed, but that looks less likely with Bush making threatening phone calls to worried spouses.

Yep, I'm more optimistic than I've been in weeks. Best not get my hopes up though -- Congress still has to pull itself together to do the right thing...

Does anyone know what the great urgencey was involving the dramatic showdown at the hospital. Why did they need to get Ashcroft to sign off on the eavesdropping that night and at that time of day? Was there a deadline of some kind? They operated whatever program anyway without authorization before and after.

i hope abu g doesn't leave anytime soon.

it seems the doj has been doing a good job lately of going after congressional and white house crooks.


new guy + background investigation + confirmation + "getting to know the organization" =

months of delay of any doj investigations/prosecutions.

Steve Elliot --

As I understand it, the program had to be reauthorized every 45(?) days or so. The deadline came up while Ashcroft was in the hospital, the WH already knew Comey (as acting AG) would not authorize it, and if they continued to implement the program without authorization, they would be breaking the law. That was the urgency. It was a CYA operation, necessary because there were people at DOJ who were going to try to restrain their overreach of the law (via mass resignations if all else failed) -- something that had not been done previously because of previous DOJ employees who were on board with the program (e.g., John Yoo).

Ok, I am a scoffer.

I don't see that anything is changing.

Same old thing.

Politics, and the search for a chargeable crime.

The politics is going great, but no crimes.

Feingold is also a member of both the SSCI and the Judiciary Committee.

Steve Elliott, with all due respect, I think there is a more important question.

Why would any individual of sound judgment place demands on a Critical Care patient?! That's heartless.

Mr Ashcroft had handed over legal responsibility to Mr Comey. Look up 'pancreatitis.' Not something you would ever want to have. There is a case to be made that the very act of intruding upon Mr Ashcroft posed an additional, serious health risk at at time when he simply didn't have the stamina to withstand such a request. (It's not a big stretch to suppose that his physicians and nurses were worried, angry, and/or appalled. It's also not any stretch to commend Mrs Ashcroft for having enough sense to call Comey for help.)

It doesn't matter how 'urgent' the decision was -- Comey had been lawfully handed the authority to sign. He wouldn't. So Gonzo and Card (acting for Bush) compromised the health of an extremely ill man for the sake of the Unitary Executive's wishes.

Nothing is more urgent than letting an ICU patient get rest. And I mean *nothing.* Ashcroft was almost certainly medicated, which raises the further point that EVEN IF he'd signed the documents, they wouldn't have withstood a legal challenge (due to the fact that he was in a compromised physical and intellectual condition).

So they risked Ashcroft's health for the sake of something that, had they obtained it, would not have been legally defensible. Mendacious idiocy.

"Does anyone know what the great urgencey was involving the dramatic showdown at the hospital. Why did they need to get Ashcroft to sign off on the eavesdropping that night and at that time of day? Was there a deadline of some kind? They operated whatever program anyway without authorization before and after."

SE, I think it is just how these people operate...like thugs. Ashcroft wouldn't sign off on the spying before he got sick so they thought they might be able to hit him when he wasn't fully aware, as stupid as it seems, considering Ashcroft didn't even have the AG power at that time. They thought they could get the signature and then later Ashcroft would quietly fold. They underestimated both he and Comey. They were already spying, illegally, and that desperation for legitimacy shows how wrong they knew they were. Impeach. Start with Gonzalez and move up.

Lest we forget, we must impeach Cheney first!

What if Goldsmith (now a tenured Harvard Law professor with every reason to spill what he knows about BushCo's crimes) was asked and agreed to testify? How could the White House prevent him (or Ashcroft) on the basis of executive privilege? Could the White House sue him for civil damages for breaching executive privilege, a vague concept based not on statute but on precedent?

Are there any civil penalties against a private citizen who testifies when the White House claims executive privilege regarding his former public employment?

I'll bet not. I'll also bet that the SJC has been talking to Professor Goldsmith. He may be a conservative, but he has very strong opinions about the rule of law, and a complete intolerance for those who flaunt it.

Steve Elliott:
The approval was going to expire. So I don't think they had operated the program before then without approval (they had AG Ashcroft's approval, but needed reapproval before deadline). And _yes_, they did reauthorize after the hospital visit, which is one of the most outrageous aspects of all this, I think--that the Executive (President) was doing something the Executive (OLC) had not approved as legal. Bush had gone so far that Comey (and Ashcroft, one gathers) felt he (they) had no choice but to resign. It was this (the fear of calling attention to problems bc of resignations) that seems to have prompted Bush to allow for changes to the Program. Or so I understood from Comey's testimony.

-what's the mood these days over at Karl's shop? Are you still on message 24/7...
or do they let you out for walks in the dog park?

Keep on Ratf**cking!!!!

rex applegate,

I am not even a fly on an outside window. Just a passerby out on the highway. Not sure I would recognize Karl. But I got Bush down pat. And Condi!

Jodi - You got down with Bush, Pat and Condi? You vixen!! Hubba, hubba!

steve elliot--Once Ashcroft signs, any query abt his condition, or delegation of authority to Comey, can then be legally ignored by terming it a NationalSecurity matter, which is not arguable. No one could pursue it any further.

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