Category Two Documents

by emptywheel

Good thing Rove resigned and finally distracted me from my FISA focus, huh? And in the process of looking up something relating to Rove, I noticed these two letters between Conyers and the RNC (and the RNC's lawyer) regarding documents it won't turn over. Most of these documents fall into "category one;" that is, documents the White House has asserted privilege over. But there's a separate "category two" that attracted my attention:

The White House describes these documents, which the Committee understands to include hundreds of pages, as relating to communications with or among White House officials concerning candidates for U.S. Attorney positions in the Central District of California, the Middle District of Tennessee, and the District of Montana. The White House does not claim executive privilege over these documents, but instead maintains that they "fall outside the Committee's investigative authority" because they relate to the President's purportedly "constitutional prerogative" to nominate U.S. Attorneys, and directs you not to disclose them without a further demonstration of relevance by the Committee. [my emphasis]

Let's take these out of order, starting with Montana.

Montana
Montana, you see, never did need a replacement candidate. Bill Mercer was, of course, playing roles at main DOJ at the same time as he was (and is) US Attorney for Montana. But he never quit. And when it came time to go before the Senate to be confirmed as Associate Attorney General, he balked, withdrawing his nomination just days before the Senate Judiciary dealt with it. When Mercer balked in such a fashion, I noted,

As I said, Bill Mercer hasn't really been focused on day to day events in Montana for several years, since he first got a no-nomination acting appointment at Main DOJ. But one thing has been occurring--or not occurring--in Montana. The biggest beneficiary of Jack Abramoff's largesse, [former Montana Senator] Conrad Burns, has somehow managed to avoid the increasing scrutiny that John Doolittle and Bob Ney received. There has long been a question of whether Mercer has retained his appointment in Montana in an effort to protect Burns, and now it appears he can do little but that.

[snip]

Trust me--the Administration felt it important to retain Mercer out in Montana. It's something Gonzales himself emphasized in his statement on Mercer's resignation:

Gonzales said in a statement that he was "very pleased that the department will continue to benefit" from Mercer's talent in Montana.

It sure sounds like they were worried they'd have to forgo Mercer's services in Montana, and therefore decided to sacrifice him at Main DOJ.

In other words, the discussion of whom to replace Mercer with may well have been as much about how to protect Conrad Burns (and the larger Abramoff mess) as much as it had to do with finding a nice Republican hack to serve as Montana's top law enforcement officer.

Los Angeles
Which is even more true of the Middle District of California--the Los Angeles USA. After all, Debra Yang's departure is stinky enough, what with her big signing bonus at the firm defending Congressman Jerry Lewis. But then DOJ went around the normal selection process in California, bypassing the Parsky Commission that has been selecting judicial candidates in California.

Once Yang resigned in November to pursue private law practice, it was up to the commission to make recommendations to the White House and the Justice Department. But Sampson and Goodling tried to generate candidates of their own. Interviews were scheduled with half a dozen people, many of whom had held political appointments in the department.

Parsky did not respond to e-mailed questions about his role in the process.

After word of the interview schedule leaked, Parsky called the White House and the Justice Department to complain, according to a person familiar with the process who requested anonymity because it involves a personnel matter. Goodling was allowed to proceed with the interviews, but was told she had to tell the candidates that they would have to reapply through the commission.

Ultimately, the commission is believed to have recommended two candidates; the only one interviewed by the Justice officials in Washington was a career prosecutor who has headed the criminal division of the Los Angeles office. The White House has not said whom it will nominate for the post.

Some people close to the selection process suspect Goodling and Sampson were attempting an end-run around the commission to install a politically connected Washington insider, possibly by using a law that permitted the attorney general to appoint interim U.S. attorneys without Senate oversight.

And the last thing Gonzales did with his PATRIOT provision powers was to extend the appointment of George Cardona, who was the USA selected through the abnormal process, with the practical effect of bypassing Parsky once again.

How odd, then, that two of the three US Attorney positions that the White House spent "hundreds of pages" discussing replacement candidates for happened to be two districts covering two of the most powerful Republicans in Congress (before Senator Tester kicked Conrad Burns' ass, that is).

Tennesee
Which leaves Tennessee. Presumably, the replacement in question was for James Vines, who left last year. Curiously, he left "for private practice," which has almost universally had ties to suspicious circumstances in this Administration: Heffelfinger, Yang, Cummins--they all left "for private practice."

More curious is the guy they ended up bringing into Tennessee: Craig Morford. You see, Morford got brought into MI early in Bush's term as an interim USA, after the previous USA left "for private practice." After spending some time as First AUSA back in Northern Ohio (no GOP corruption there), he was brought into this Tennessee job. And from there he's going to ... wait for it ... main DOJ as the Deputy Attorney General. I'm not saying this guy looks like a professional fixer. But if he is, fixer of what?

The Middle District of Tennessee is in Nashville, where the esteemed former Senate Majority Leader, Cat-Killer Frist, was from. But MD TN is not where Frist was under investigation for insider trading--that was a Southern District of NY/SEC investigation. Furthermore, the timing on this is weird; Frist announced he wouldn't run for re-election fairly early, back when he dreamed of playing President one day. So it's unclear why the White House would have such lengthy discussions about replacing Nashville's USA.

It makes me all the more interested why Vines really stepped down, and what Morford will say in his nomination hearings to be Deputy AG.

Executive Privilege
All of this raises a further issue. Why did the White House not claim executive privilege over these documents? After all, the choice of whom to appoint as USA--rather than the choice of whom to fire--would seem to be deliberative advice. And the White House did invoke executive privilege for the rest of these documents. But for these, they're just saying HJC has no legitimate investigative interest in the documents, in spite of all the weirdness surrounding Yang's resignation and the Parsky work-around, which seems like reason enough to claim investigative interest.

All in all, two out of three of these cases are clearly suspicious. Which begs a closer look at the third--and at Morford, before it's too late.

Comments

[freepatriot]

thats a real fancy statement, and it doesn't mean a FUCKING THING

"fall outside the Committee's investigative authority" because they relate to the President's purportedly "constitutional prerogative" to nominate U.S. Attorneys, and directs you not to disclose them without a further demonstration of relevance by the Committee

last I checked, the presnit was an employee of the United States Government

there ain't anything that is done by the United States Government that falls beyond Congress' oversight authority

if these people were paid a wage by the federal government, their actions fall within the oversight authority of Congress

if these people did any business inside a federally owned building, their actions fall within the oversight authority of congress

if these people ever TALKED to a Federally employeed person, during the course of that person's job duties, those actions fall under the oversight jurisdiction of the Congress

if george bush wants to create a special area where the presnit can do whatever he wants outsiide the law, then trhe repuglican party has yet to see the bottom of their current plight

somebody better splain to some repuglican congresscritters that we're planning on using george bush's newfound presnitential powers AGAINST repuglicans soon

I wonder how scalia, alioto, tomas and roberts are gonna feel about the "Illegal Enemy Combattant" law when they're rotting away in GITMO

what goes around comes around

[greenhouse]

Nice to see you back freepat!

[bmaz]

Rove will sort out in due time. It is the right thing to do to get back to the critical aspects of the situation, which are the nuts and bolts of retrieving the Constitution, Department of Justice and rule of law. Most everything that matters will shake out from that process. Impeach. Gonzales. Now.

[DeeLoralei in Memphis]

Marcy, I'm in Memphis (as the sn implies) and this may have nothing to do with Frist, since as you said, he had already decided not to seek re-election. If it was to protect Corker, from East TN it makes little sense. Because beleive me, Corker was into some dirty stuff as mayor of Chattanooga. And the RNC servers are also in Chatt. And it couldn't be to get Harold Jr, because he is in West TN. But what is in Mid TN is Nashvegas, state capitol. And several state dems were caught up in the Tennessee Waltz scandal, before the 06 elections. (only 1 rep) and most of the powerful Ford machine is Memphis-centric, but he has several relatives in the state legislature. So, I'd say this might have had more to do with. or perhaps to stop the Ford machine, or to be in place for a possible frist presidential bid.

The other reason I could think to place a "known Bushie" in Nashvegas would be in case there was an investigation of a Rep, say in MO or AR, and the USA had to recuse themselves. Then having a loyalist in nearby to step in, would give all the apperance of propriety, whilst still insuring and ensuring the best outcome for the republicans.

See, now I've gone all tin-foil-hatty. These people make me teh crazy.

[pseudonymous in nc]

thats a real fancy statement, and it doesn't mean a FUCKING THING

You'd assume that the Youngstown test would apply: Congress has an interest because it created the structure for appointments of US Attorneys. After all, it was the sneak PATRIOT revision that tried, under the table, to create legislative precedent so that Congressional oversight might fail that test.

but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

Look at the force of that sentence: the Congress giveth appointment powers, and the Congress can take it away.

But it's a 'use it or lose it' situation, to some extent: unless the H/SJC take it to court -- with all the risks that entails with the DC Circuit and SCOTUS -- it becomes a de facto power grab.

there ain't anything that is done by the United States Government that falls beyond Congress' oversight authority

Well, there are enumerated executive powers that offer fewer inroads to exert oversight: pardons, recess appointments. And then there's the whole murky area of C-in-C powers, which Yoo and company loved as a means to evade oversight.

[EW Fan]

EW,

Sometimes a cigar is just a cigar. Morford is clean. Nashville has nothing of substance going on that the GOP cares about. Vines leaving was just office politics, and he faced an employment lawsuit for age discrimination -- he pushed out some older, less productive attorneys. I think the Morford appointment is less about cover and more about an internal war within DOJ. The USAs were outraged at what was going on and, to quell the mutiny, AGAG (or, more likely, the White House) felt compelled to pick a career guy. Look at Morford's work in Michigan: He investigated an AUSA who wrongly convicted a defendant on terrorism charges. Morford prepared a report and, ultimately, asked the court to overturn the conviction. Not exactly what you'd expect were he there to cover for the department. As to why it took so long to replace Vines with a permanent USA, look at the earlier documents. Morford had asked to be nominated for the permanent post. Of course, he's not from Nashville, so he's got no local political support. That must have put McNulty & Co in a bind, as they surely had Senator preferences to deal with, too. Long story short, Morford is the odd man out, but for the right reasons. We should be asking how the hell he got tapped to be DAG. There's sure to be a real story there.

[emptywheel]

EWF

Gotcha

I had long assumed that Morford was clean--for many of the reasons you state. The first thing that made me look twice was this request.

[Eliot Ness]

You don't know the half of it. The Bush administration has really stepped in it this time:
www.Craig-Morford.com

This afternoon all of the US Attorneys and every US Senator and Congressman got this FAX:
Open Fax To Louis Freeh About Morford