According to Time:
The letter to Mukasey is a signal that Democrats intend to probe what critics call the "dark side" of the Bush Administration even after it leaves office, according to congressional sources. Besides the Siegelman prosecution, such investigations could focus on the authorization of harsh interrogation methods and the role of Karl Rove and former White House aide Harriet E. Miers in the firing of U.S. Attorneys....
When the House Judiciary Committee looked into the Siegelman affair earlier this year, the DOJ issued statements, placed in the Congressional Record, maintaining that the case had been handled only by career prosecutors, not political appointees, and that Canary had recused herself in 2002, "before any significant decisions ... were made."
But new documents furnished by DOJ staffer Tamarah T. Grimes tell a different story. A legal aide who worked in the Montgomery office that prosecuted Siegelman, Grimes first submitted her documents to DOJ watchdogs in 2007, and now finds herself in an employment dispute that could result in her dismissal. Grimes' lawyer had no comment.
The documents - whose authenticity is not in dispute - include e-mails written by Canary, long after her recusal, offering legal advice to subordinates handling the case. At the time Canary wrote the e-mails, her husband - Alabama GOP operative William J. Canary - was a vocal booster of the state's Republican governor, Bob Riley, who had defeated Siegelman for the office and against whom Siegelman was preparing to run again. Canary also received tens of thousands of dollars in fees from other political opponents of Siegelman.
In one of Leura Canary's e-mails, dated Sept. 19, 2005, she forwarded a three-page political commentary by Siegelman to senior prosecutors on the case. Canary highlighted a single passage, which, she told her subordinates, "Ya'll need to read, because he refers to a 'survey' which allegedly shows that 67% of Alabamans believe the investigation of him to be politically motivated." Canary then suggested: "Perhaps [this is] grounds not to let [Siegelman] discuss court activities in the media!"
Prosecutors in the case seem to have followed Canary's advice. A few months later they petitioned the court to prevent Siegelman from arguing that politics had any bearing on the case against him. After trial, they persuaded the judge to use Siegelman's public statements about political bias - like the one Canary had flagged in her e-mail - as grounds for increasing his prison sentence. The judge's action is now one target of next month's appeal.
"A recused United States Attorney should not be providing factual information ... to the team working on the case under recusal," Conyers wrote to Mukasey last week.
Isn't that rich? Political operatives use their victim's statement about them conspiring against him to get his prison sentence increased. I wonder if that will work on Rove, once the tables have turned completely? No, didn't think so.
Meanwhile, in the Times, Charlie Savage writes about the various Bush-era investigations and the likelihood of them going forward.
"The Bush administration overstepped in its exertion of executive privilege, and may very well try to continue to shield information from the American people after it leaves office," said Senator Sheldon Whitehouse, Democrat of Rhode Island, who sits on two committees, Judiciary and Intelligence, that are examining aspects of Mr. Bush's policies.
Topics of open investigations include the harsh interrogation of detainees, the prosecution of former Gov. Don Siegelman of Alabama, secret legal memorandums from the Justice Department's Office of Legal Counsel and the role of the former White House aides Karl Rove and Harriet E. Miers in the firing of federal prosecutors.
Mr. Bush has used his executive powers to block Congressional requests for executive branch documents and testimony from former aides. But investigators hope that the Obama administration will open the filing cabinets and withdraw assertions of executive privilege that Bush officials have invoked to keep from testifying.
"I intend to ensure that our outstanding subpoenas and document requests relating to the U.S. attorneys matter are enforced," said Representative John Conyers Jr., Democrat of Michigan and chairman of the House Judiciary Committee. "I am hopeful that progress can be made with the coming of the new administration."
Also, two advocacy groups, the American Civil Liberties Union and Human Rights First, have prepared detailed reports for the new administration calling for criminal investigations into accusations of abuse of detainees.
It is not clear, though, how a President Barack Obama will handle such requests. Legal specialists said the pressure to investigate the Bush years would raise tough political and legal questions.
Because every president eventually leaves office, incoming chief executives have an incentive to quash investigations into their predecessor's tenure. Mr. Bush used executive privilege for the first time in 2001, to block a subpoena by Congressional Republicans investigating the Clinton administration.
In addition, Mr. Obama has expressed worries about too many investigations. In April, he told The Philadelphia Daily News that people needed to distinguish "between really dumb policies and policies that rise to the level of criminal activity."
"If crimes have been committed, they should be investigated," Mr. Obama said, but added, "I would not want my first term consumed by what was perceived on the part of Republicans as a partisan witch hunt, because I think we've got too many problems we've got to solve."
But even if his administration rejects the calls for investigations, Mr. Obama cannot control what the courts or Congress do.
If all this is eerily and sickeningly reminiscent of Clinton's disastrous attempt to "let bygones be bygones" by not pursue Reagan/Bush era crimes, with a similar rationale, Savage adds a deeper level of warning to the mix. The precedent of granting executive privilege to a former President derives from Harry Truman's response to the McCarthyite witch hunting in the House Unamerican Activities Committee-a response that was hastily drafted by lawyers who later came to believe their arguments were basically unsound:
The idea that ex-presidents may possess residual constitutional powers to keep information secret traces back to Truman.
In November 1953, after Dwight D. Eisenhower became president, the House Un-American Activities Committee subpoenaed Truman to testify about why he had appointed a suspected Communist to the International Monetary Fund.
Truman decided not to comply and asked his lawyer, Samuel I. Rosenman, for help. But there was little time for research.
Edward M. Cramer, a young associate at Mr. Rosenman's law firm, recalled being summoned with two colleagues to their boss's office at 6 p.m. and told to come up with something. The next morning, they helped dictate Truman's letter telling the panel he did not have to testify - or even appear at the hearing.
"I think, legally, we were wrong" about whether Truman had to show up, Mr. Cramer, now 83, said in a phone interview from his home in New York.
But the committee did not call the former president's bluff. It dropped the matter, and Truman's hastily devised legal claim became a historical precedent.
In 1973, President Nixon cited Truman's letter when he refused to testify or give documents to the committee investigating the Watergate scandal.
Mr. Cramer recalled, "Nixon used it, and we said 'Oh, Jesus, what have we done?' "
There's an old saying, "Bad cases make bad law." This is certainly part of the story here. But there's a deeper truth, particularly in political affairs, that bad judgment makes bad cases. And fighting on defense, rather than offense is the most fundamental form of bad judgment there is.
It's a mistake that Truman made early on, even before anyone outside of Wisconsin had ever heard of Joe McCarthy. He attempted to coopt the witch-hunters, and ended up only emboldening them in the end, to the point where he was forced to come up with some bad law to defend himself, which Richard Nixon was only too happy to use 20 years later. The ultimate irony here was that Nixon was one of the leading witch-hunters at the time-McCarthy's first red-baiting speech depended almost entirely on material developed by Nixon, who had been at it for years before McCarthy got into the act.
Likewise, Clinton made the same mistake in 1992 and '93, when he decided it was more important to "get things done" and figured he could do that better if he showed some "goodwill" to the GOP by setting aside any serious pursuit of Reagan/Bush era lawbreaking. That same rationale has been invoked this year as well-infrequently and somewhat mutedly by Obama, more forcefully by others. The reality here is quite simple: no matter how much all of us might wish--Obama included-there really is a red/blue culture divide in our country, and it goes back much farther than the 1960s. In fact, it goes back 500 years at least.
Conservative, red state culture derives from warrior roots. It sees signs of compromise as signs of weakness. The more reasonable one seeks to be, the more antagonistic the underlying response, because weakness invites attack to those steeped in this cultural mentality. The antagonism may or may not show itself immediately, depending on a variety of factors, but the underlying tendency is virtually inevitable. The only thing that the warrior culture understands is overwhelming shows of strength: throw the bastards in jail, and then negotiate. Speak to them in the language they understand. |
