Ralston's Deposition

by emptywheel

Oh, this is getting good. As part of his interim report on RNC emails, Waxman released Susan Ralston's testimony before the committee. Reading the deposition, it becomes pretty clear why Tom Davis was trying to warn Rove of the danger of Ralston's testimony. Because even what she was willing to testify to makes it clear that Rove is in some deep legal trouble. And then when you look at the areas where she carves out immunity for herself, you realize that if she were ever to testify under immunity, Rove would be in deeper trouble.

The carved out areas, as already reported, pertain primarily to the Abramoff scandal and the use of RNC emails--both area where Ralston's position as Karl's gatekeeper would implicate her in the larger workings of the WH. For example, here is Brad Berenson, the GOP's  designated firewall defense attorney,  explaining the limites of Ralston's testimony on RNC emails.

Berenson. Yes. We have decided this morning to allow her to talk about some of the mechanics of Mr. Rove's use of e-mail accounts, but when it comes to the reasons of why he vvas using political e-mail accounts, there ìs a reasonable, well-founded concern that a discussion of the reasoning behind the use of those accounts may sweep more broadly than Mr. Rove himself , and may go part of the way toward explaining a pattern of usage among other officials, potentially including Ralston, and so that's why vve are goìng to decline to answer that question this mornìng.

At one point, Berenson reveals something more specific they're trying to hide.

Q Do you know if anybody received briefings about how to use the different e-maiI accounts?

Mr . Berenson. I 'm goìng to interpose our previous objection there for the same reasons stated at the outset.

Anyone want to guess a) that there was a briefing and b) that they made it very clear that they should dump anything illegal into RNC emails? Well, Ralston knows, but she won't tell until you give her a stay out of jail free card.

Later, Ralston describes how someone on the Bush campaign staff contacted her to inform her (and through her, Karl) that they were excepted from the email retention policy.

By somebody on the campaign staff. So it was staff wide e-mail, and the e-maiI explained the retention policy, but somebody on the campaìgn staff -- and I don't recall who specifìcally called me to say that it didn't apply to myself and to Karl, and to let him know that when he
saw it, it did not apply .

And Ralston says this means Rove's emails were retained, rather than specifically not retained.

So we have had general conversations like that with RNC staff , whìch led both of us to believe that they were retaining his e-mails.

Following this exchange, Berenson interrupted to get Ralston to clarify that she had not been told specifically that the policy did not apply.) Just a wildarsed guess, here, but I'm guessing the RNC set it up so Rove and Ralston would have plausible deniability.

Mehlman's Emails

There's a particularly interesting exchange as it pertains to Ken Mehlman. Berenson refuses to let Ralston answer a question about Mehlman generally. But the Majority Counsel points out that RNC claims it has no record of Mehlman using his RNC account.

Ms. Amerling. This question goes to whether Mr. Mehlman actually used his email. We have been seeking information from the RNC on this issue, and at this point they haven't been able to turn up a record of use by Mr. Mehlman .

Mr. Berenson. Well, how about if you ask whether Susan has specific knowledge that Mr. Mehlman ever used his RNC e-mail account. I think that question probably wouldn't be objectionable.
Ms. Amerling. 0kay.

BY MS. AMERLING: Ms. Ralston, do you have specific knowledge about whether Mr. Mehlman ever used his political email account?

A He did.

Q And do you know how frequently he used that?

A I couldn't quantify it. He used it frequently, daìly.

In other words, that 18-minute gap? it includes a lot of Mehlman's emails.

Amerling then goes through a list of people, asking whether they used their political email accounts, presumably because the RNC says it has no record of any activity. That list includes:

• Dan Bartlett
• Israel Hernandez
• Cathie Martin
• Tim Griffin

And a whole bunch others...

Plame Details

As Jeff notes, Ralston provides clear details about Rove's communications relating to Plame--specifically with OVP.

Q Were you aware of any communications by Mr. Rove about Joe Wilson or Valerìe Plame Wilson with the Office of the Vice President?

A You know, it is that investigation was so lengthy that the tìmìng of all of the conversations is not really clear in my mind. I believe he did talk to the Vice President's Office about it, but I just don't remember when, with whom, the context.

Q Why do you believe that he talked with that office about this subject?

A I just have a vague recollectìon that he and Scooter Libby talked about this subject often.

Q Often?

A Often.

Q During what time frame?

A I don't know. I mean, it is really hard for me to say.

But just as interesting is the way that Ralston offers up a piece of Plame information in response to a different question. This passage starts when Majority Counsel Amerling asks whether Rove has received instructions about emails.

Did Mr. Rove ever receive any instructions from White House officials regarding the use of political e-mail accounts?

Ralston at first says that she knows nothing about it.

A He may have but not to my knowledge.

But then designated firewall defense lawyer interrupts and confers with Ralston, twice. After which she offers the following clarification.

During the Plame leak investigatìon, Patrick Fitzgerald and his team took Karl's political laptop and his BlackBerry during the investigation.

This is where Ralston begins to detail what she knows about Fitzgerald's access to Rove's emails.

I find the sequence curious. While it may be that Berenson just wanted to make sure Ralston gave some Plame goodies before the Committee staff moved on (though they return to Plame in much more detail), it seems like Berenson's intervention here may relate to the question Amerling asked--whether or not Rove had gotten instructions from anyone else about what to do with his RNC emails. In other words, it suggests Rove may have been briefed to do something with his emails, specifically as it pertained to Plame.

Ralston also provides details about how many subpoenas Fitzgerald made of Rove.

Q And when dìd you ask the RNC to do that?

A In response to any given subpoena.

Q Well, you had referred earlier to a request from Mr. Fitzgerald in the Plame investigation. Was there more than one request?

A For documents in that investigation, there was more than one subpoena.

Q How many?

A There may have been as many as six or seven.

That's about as many as Libby got, so not a big surpirse, but certainly a suggestin that he didn't get everything the first time.

The Niger Intelligence

One of my favorite exchanges is when Berenson reminds Ralston that "she doesn't recall" something, rather than that it didn't happen.

Q Did anyone at the Whìte House ever discuss with you the use of that claim 'in any public statements made by Whit House officials?

A No.

Q Karl Rove didn't discuss this claim with you?

A No.

Mr. Berenson. Do you want to clarify that last answer?

The Witness. I don't recall. I don't have a recollection of anyone discussìng with me specifically that claim.

No wonder Berenson's clients don't recall so much--he specifically reminds them to tell them what they don't recall.

Comments

[P J Evans]

The '18 minute gap' seems to include an awful lot of stuff, like half the administration's memories, and all those probably-incriminating e-mails that they don't want anyone else to see.

Maybe it also includes Bush's original brain and Cheney's original heart. [/snark]

[oldtree]

I hate asking my tools in congress, but do you need to be sharpened or just picked up and pointed in the direction of work to do?

[tekel]

whoa. That last bit is HUGE. I'm not a lawyer, yet. But isn't that a clear breach of professional ethics? Berenson *can't* ethically tell Ralston when to take the 5th, but can he interrupt her testimony to remind her to repair her perjury clarify her answer when she forgets her coached testimony and blows a line misspeaks?

Berenson better watch himself, he could get dragged into a RICO prosecution too if it turns out he is protecting one of the crooks.

[freepatriot]

so lets put ms ralston in front of a Grand Jury, and mr berenson can shut the fuck up

if ralston remembers some stuff that berenson previously reminded her that she had forgot, mr berenson can answer some questions too

obstruction of justice seems to be the main theme of the bush whitehouse

that's a real expensive policy at 10 years a pop

[pdaly]

ABCs Brian Ross is leading with an exclusive that "suicide bombers" are on their way to US, Europe.

Well, that's just terrible timing on Al Qaeda's part. Just when Rove and Bush and Gonzales and Rumsfeld and Cheney are in the news for illegal and unconstitutional "doings" and just when the Democrats might be getting traction on removing them from power, Al Qaeda trips up the news cycle with this.
(BTW, isn't in nice that the suicide bombers posed for a photo so that there is something to show on ABC? Hope that immigration officers are allowed to look at the photo, too. Wouldn't want it to be become merely a photo op).

It's almost like Al Qaeda are helping diffuse the story from Bush and Cheney and Rove and Gonzales and ....Hmmmm...

[bmaz]

Tekel - No, I don't think Berenson has any problem here. His intervention actually expanded the answer, not contract it.

[freepatriot]

well, uhm, pardon me for being logical and all ...

but if the suicide bombers are on their way to America, why are we fighting them in Iraq again ???

wasn't there something about fighting them "over there" so we don't have to "fight them over here"

so a single suicide attack anywhere in America renders the whole Iraq invasion a FAILURE

anybody think george is gonna get a pass on that point ???

3500 dead soldiers for what ???

[zhiv]

...and to think I was worried about that "light blogging" feint.

Great post. Thanks, as always, for breaking this down.

[Sharon]

3500 dead soldiers for Halliburton, DeadEye and CrazyHOJoe.

[pdaly]

And if it ever comes to that, with our National Guardsmen deployed to Iraq, it's a good thing we have weaponized private contractors like Blackwater at home here in the good ol' USA to keep our streets safe to tuck us into our beds at mandatory curfew.

[orionATL]

every time i read a column like this one

i ask my self:

how can they get away with this (here, hiding possible illegal activity by ignoring the presidential records act)?

are this point that i've lost track of how many times i've asked myself that question.

myself has not yet come up with an answer.

it is really astounding how little political pressure is brought to bear on these white house operators even after their misdeeds are publicly revealed.

each set of questionable conduct(s) is treated publicly as if had occurred in isolation from all the others.

it's as if the entire nation were on political soma.

[Mimikatz]

Because the Independent Counsel/Special Prosecutor laws were allowed to lapse and ther eis no one to guard the guardians, in Plato's phrase.

This is why, for the umpteenth time, in 2009 we have to go after these criminals so that we don't fight the same battles 20 years from now.

[MB Williams]

I've only gotten halfway through the deposition, but there's no reason to provide her with immunity regarding her use of the RNC account. Waxman already has this, from Feb., 2003:

Kevin Ring: Your email to Susan was forwarded to Ruben Barrales and on to Jen Farley, who read it to me last night. I don't know what to think about this, but she said it is better to not put this stuff in writing in their email system because it might actually limit what they can do to help us, especially since there could be lawsuits, etc. Who knows? Just letting you know what she said.

Jack Abramoff: Dammit. It was sent to Susan on her rnc pager and was not supposed to go into the WH system.

[MarkH]

Can they arrange a limited immunity deal which would allow Ralston to testify about other people's activities while protecting herself?

If they can they should continue to use this loose thread to keep unraveling the White House.

[Lisa]

per MBWilliams comment: Doesn't the Justice Department and McCain's Indian Affairs Committee have all of Abramoff's emails which presumably would contain messages from RNC.com, KarlRove.com, BushCheney2004.com, etc? Can't Waxman get them from Indian Affairs--I'm guessing he couldn't get from Justice since it is could affect current case against Abramoff. Also, don't you think Abramoff would be willing to give up all he knows about the email accounts and their usage so that he can get a reduced sentence. Wouldn't testifying before Waxman's committee be a good start to that reduced sentence?

I'm with orionATL. The scope of criminality with this bunch is just astounding and utterly depressing.

[emptywheel]

I strongly suspect that Waxman would not give her immunity because doing so might hurt the ongoing DOJ investigation into Abramoff.

[MB Williams]

Regarding the Abramoff/GT emails acquired by McCain/Indian Affairs: There were apparently 17,000 emails and documents, of which less than 1,000 have been released. One would think that Waxman, or at least the Senate Finance Committee (which released it's report last year), would be able to provide Waxman with at least some of the emails.

I don't know how their release, however, would impact other ongoing DoJ investigations. At this point, both Norton and Norquist are in pretty clear jeopardy. (I suspect DoJ is going after Norquist, as Federici is cooperating, while Griles is not.)

I agree with Marcy - Giving Ralston immunity could seriously damage the ongoing investigation, which, at this point, could net a whole lot more people, from former Congresscritters such as Tom Delay, Conrad Burns, Ben Campbell and Richard Pombo, to current ones like Barbara Cubin, John Doolittle and Ted Stevens. And a bunch of current and former Administration cronies as well (Norton and Sansonetti come to mind immediately.)

[MB Williams]

Ugh, clearly I need more coffee. That should have read, "One would think that Dorgan, or at least the Senate Finance Committee (which released it's report last year), would be able to provide Waxman with at least some of the emails."

[Sebastian Dangerfield]

Tekel, bmaz:

Berenson's little woodshedding there seems pretty damn close to big trouble. As EW suggests, when you read just a bit between the lines, it seems clear that Berenson must have known, based on his own prep sessions with Ralston, that her flat-out denial was false. If I'm correct, then what has happened is that he has just witnessed his client commit perjury. So he gives her a nudge -- borderline behavior, but I think just about any lawyer would feel the need to do something to allow his client to fix what might have been a goof. The problem is that Ralston cannily picks up the cue and then goes straight to what I infer was an instruction -- explicit or implicit -- to fall back on "I don't recall" in problem areas, as everyone knows that proving that someone did not in fact recall is quite difficult. This certainly suggests that some pretty sleazy advising was going on in the prep. There are, however, ways to do this without flat-out telling your client to lie while giving them the signal that lack of recollection is the safest. (I know, all experienced litigators are now doing their best Claude Raines expression of being "shocked, shocked"!)

All that said, however, if I'm right in inferring that Ralston had told Berenson during the prep that she did indeed have such a conversation with Rove, query whether changing her answer from "no" to "I don't recall" would relieve the attorney of the responsibility to withdraw -- noisily -- from representing the client.. (Most jurisdictions ethics rules require a lawyer who knows that a client has perjured herself to withdraw, usually under circumstances in which it's easy to infer why, but not to snitch on the client, as the attorney's duties to the client prohibit ratting the cleint out (unless there is an ongoing crime or fraud).

[Adie]

Morning Marcy.

Thanks for all the juicy details!

rover in hot water? dare we hope?

[John Krogman]

From emptywheel above:

Q Do you know if anybody received briefings about how to use the different e-maiI accounts?

Mr . Berenson. I 'm goìng to interpose our previous objection there for the same reasons stated at the outset.

Anyone want to guess a) that there was a briefing and b) that they made it very clear that they should dump anything illegal into RNC emails?

******

If this is the case, then obviously there is a criminal conspiracy that may be directed by the RNC, Republican National Committee.

In other words, the RNC is a criminal enterprise.

We need a special prosecutor.

Yesterday.

[Marc in Denver]

Re: Sebastian Dangerfield's last comment: In Berensen's defense, Ralston _may_ have told him that there was such a conversation, or that there may have been a related conversation (remember the clarified answer "I don't have a recollection of anyone discussìng with me _specifically_ that claim.", my emphasis on the "specifically"), but that she either did not recall all the details, or specific ones that would be responsive to the question. Yes, it is parsing, but it does matter what the definition of "is" is.

[GB16]

I agree we need a special prosecutor but currently the appointment is controlled by 28 CFR Part 600. The term is sometimes used as a synonym for Independent Counsel, but under the former law authorizing the Independent Counsel, the appointment was made by a special panel of the United States Court of Appeals for the District of Columbia Circuit. The Independent Counsels law expired in 1999, and was effectively replaced by Department of Justice regulation 28 CFR Part 600, under which Special Counsel Patrick Fitzgerald was appointed to look into the Plame affair.

http://a257.g.akamaitech.net/7/257/2422/08aug20031600/edocket.access.gpo.gov/cfr_2003/julqtr/pdf/28cfr600.1.pdf

You really couldn't dream that the current EOUSA structure that is literally like Tony Soprano's back room at the Bing with David Margolis analagous to Sylvio Dante played by Stevie Van Zandt, and "I don't remember who dressed me today" Gonzales who is a White House Puppet is going to appoint a Special Counsel.

The entire DOJ control now is done by Rove, Cheney and the White House Counsel--aka the law firm in the white house. After Fitzgerald has done a superlative and competent job, they aren't about to let a special counsel see the light of day no matter how much pressure the democrats on Senate and House Judy exert.

Remember that the twit Monica Goodling with about as much litigation experience as my dog who went to one of the arguably worst "law schools" in the country and is nearly fresh out was in charge of hiring or not hiring immigration judges who had no immigration litigation experience and no federal litigation experience. As it is of the 1200 plus federal judges who didn't come from the ranks of DOJ as AUSAs or US Attorneys, a very substantial percentage of them have not one minute of federal litigation experience at the trial or appellate court level! This is a dirty little legal secret that is not widely discussed in law reviews.

Take a look at the D.C. Circuit: As Christy Hardin Smith at FireDogLale a former U.S. Attorney and Tom McGuire at Just One Minute have pointed out, the D.C. Circuit is a club of Bush robots, with 14/17 current judges ruling for "whatever this White House wants" every single time. Brett Kavanaugh is a former White House Counsel who will jump or feint any way the current White House and their counsel want him to jump.

He refuses to recuse himself in any matters that are obviously within the epicenter of recusal per the Federal Judicial Cannons, and he will certainly try to jockey his way on to a panel for Libby's emergency appeal or Libby's appeal of his sentence. Do the math.

If 14/17 judges are Bush Robots, what is the odds of getting an honest panel in the Libby case on the D.C. Circuit? Next to none.

[ford detroit locker]

We are killing the rainforest

[2006 duck hunting in lake reelfoot]

I haven't been up to anything. My mind is like an empty room, but such is life. Maybe tomorrow. Today was a loss, but eh.