Where are the President’s records of internal deliberations about the USA firings?
Earlier today, the Senate followed the House in announcing it was ready to issue subpoenas for testimony and documents showing internal White House deliberations about the decision to fire eight U.S. Attorneys.
White House Counsel Fred Fielding had offered in a letter Tuesday to provide closed door, off the record "interviews", but no internal White House documents.
While many of us would like to see Karl Rove and Harriet Miers grilled under the klieg lights, the real gold is more likely in the documents -- or, rather, in the lack of them.
That’s because the White House probably didn’t keep anything in writing that documents exactly what higher-ups said to each other about "the real problem we have right now", as Kyle Sampson's 05/11/06 e-mail characterized then breaking news that US Attorney Carol Lam was investigating Appropriations Chair Jerry Lewis (R-CA). The failure to make and keep just those sorts of internal Presidential records is a violation of the law, and opens the decision-makers to Obstruction of Justice charges if they fail to turn them over.
MORE below . . .
If you’ve been reading DailyKos this week, you have no doubt heard about the "document dump" on Monday of thousands of White House e-mails. Many of us waded into that pile, and pulled out some interesting morsels.
As Josh Marshall at TPM pointed out there’s even an apparent "18-day gap" in these e-mails. Shades of Nixon’s Secretary, Rosemary Wood.
Nobody, however, has thus far found another "smoking gun", or anything nearly as significant as the original e-mail of May 11, 2006 from Alberto Gonzales’ Chief of Staff to the Deputy White House Counsel, first revealed in the LA Times last week.
In that e-mail, Kyle Sampson made the astonishingly timed and phrased statement that "The real problem we have right now" is US Attorney "Carol Lam." Kyle sent that over to the Deputy White House Counsel the very day the LA Times first reported that Lam was investigating the Chair of the House Appropriations Committee, Jerry Lewis (R-CA)for suspected corruption. See, http://www.latimes.com/...
Nobody should be terribly surprised that another blockbuster e-mail has not been found. After all, how stupid can they all be? But, in all the excitement some of us missed something perhaps just as important:
Where are the internal White House and internal Justice Department memos about the US Attorneys firings?
In all the hullabaloo about the refusal of Rove and Miers to testify, how many of us caught the fact that Fred Fielding’s offer to produce documents excludes internal White House and DOJ communications?
FIELDING: No Rove, No Miers, No Access to Internal White House Documents. Take It or Leave It.
On March 20, White House counsel Fred Fielding, responded to a letter from Congressional leaders demanding production of witnesses and documents related to the firings last January of eight U.S. Attorneys. Fielding’s letter states these conditions: http://www.whitehouse.gov/...
"Such interviews would be private and conducted without the need for an oath, transcript, subsequent testimony, or the subsequent issuance of subpoenas," Fielding wrote. "Such interviews may cover, and would be limited to, the subject of (a) communications between the White House and persons outside the White House concerning the request for resignations of the U.S. Attorneys in question; and (b) communications between the White House and Members of Congress concerning those requests,"
The plain-language of Fielding’s response rules out any possibility of the voluntary release of what may very well have been all-important discussions within the White House itself. Congress should not be expected to accept this condition for a very good legal reason. Under a little-known 1978 law, President Bush and his appointees are required by make and keep records of all "deliberations, decisions, and policies." That means, if anyone talked to Bush about the "problem we have right now", or anyone decided to do anything about it, with or without Bush’s personal okay, there had to be a memo taken.
White House is Obligated by Law to Keep Records
Presidential appointees working in the White House complex, or anywhere when they are acting in their official capacities create "Presidential Records."
The Presidential Records Act of 1978 mandates that "Presidential Records" be maintained and properly archived.
44 U.S.C. Chapter 22 § 2203. Management and custody of Presidential records
(a) Through the implementation of records management controls and other necessary actions, the President shall take all such steps as may be necessary to assure that the activities, deliberations, decisions, and policies that reflect the performance of his constitutional, statutory, or other official or ceremonial duties are adequately documented and that such records are maintained as Presidential records pursuant to the requirements of this section and other provisions of law.
(b) Documentary materials produced or received by the President, his staff, or units or individuals in the Executive Office of the President the function of which is to advise and assist the President, shall, to the extent practicable, be categorized as Presidential records or personal records upon their creation or receipt and be filed separately.
As the collective dumpster-dive following the release of the e-mails a couple days ago showed, many of the best ideas, notions, and activities of the Blogs are collaborative. Much of the discussion since has dealt with the question of what are the legal requirements for White House recordkeeping, and can we reasonably expect they were followed? In a post-dive roundup here yesterday, DKos own Citizen92 informs us: http://www.dailykos.com/...
The EOP's e-mail system is specifically set up to help White House staffers comply with the PRA, so they don't have to waste a lot of their time archiving.
Using different methods or e-mails to communicate, however, does not alleviate the staffers from their responsibility to comply with PRA -- it is not e-mail specific, rather it is specific to the staffer. If a staffer wrote a White House personnel decision on a stone in his own blood, that would have to be properly archived.
This strikes me as a bid to game the system. And in the end, it's going to boil down to the classic Bush argument about the "root" of the law -- here, specifically, that the Presidential Records Act is unconstitutional because Congress wrote it to regulate the Executive Branch... And President Bush has chosen to ignore it. Congressman Dan Burton getting his panties in a huge wad -- http://archives.cnn.com/...
-- when the e-mail system at the White House under Clinton wasn't properly archiving.
The conservative group Judicial Watch alleged in a lawsuit that White House lawyers and top presidential aides learned 2 1/2 years ago about an e-mail problem and threatened Northrop Grumman computer employees with jail time and loss of their jobs if they spoke to anyone about the problem.
A 1998 problem with the system prevented thousands of incoming messages from being archived. As a result, the e-mails were not reviewed by White House lawyers to determine whether they should have been turned over to investigators probing cases that included the Monica Lewinsky scandal, Whitewater and campaign fund raising.
Allegations of coverups were alleged, employees supposedly threatened.
But, then millions of dollars were spent to fix the problem. And guess what? That same, improved computer system still serves the White House TODAY.
The system stays with the White House, regardless of President.
I would guess that Karl Rove took notice of what went on with Burton and realized that he'd have to establish a work around.
This could be the equivalent of the Nixon tapes.
Citizen92 further reminds us that it is unlikely that political appointees at the White House would leave blatant evidence of attempted evidence destruction behind. More probably, Rove and others would have come up with a "work around" for sensitive communications, one which did not involve use of White House e-mail system.
The White House e-mail system (or rather who.eop.gov) is run by career civil servants, many of whom have been through subpoenas and testimony under previous Administrations.
The current politicals recognize this fact and realize that once e-mail is sent, it is out of their hands. Hence, the work around.
The comments of Citizen92 prompted me to look up the language of the Presidential Records Act (PRA), which I doubtlessly am not alone to say, I had scarcely heard of before. After reading the Act -- http://www.archives.gov/... -- I responded, without having really thought the issue through, "the PRA (is) a toothless wonder – (there are) no penalties for violating the statute, that I saw on a quick look. Check it out yourself, and tell us if it's otherwise."
That led to some back and forth about the origins of the law as an attempt by Congress to legislate a solution to issues of Presidential privilege and personal ownership over official White House records (unsuccessfully raised) by Richard Nixon.
My initial conclusion, which I now realize was hasty, was that the PRA is "little more than a guide to custody of records, and poses no impediment to not making or keeping records of communications and actions." But, then, I started to think about how the law might be used creatively, if any Congressional Committee were of a mind to raise the issue. I responded with a question,
"If no memo is ever made to avoid later discovery, does that constitute Obstruction of Justice? Might be an interesting legal precedent here. Anyone (want to address the OOJ issue)?"
That prompted citizen92 to remark,
"Well, now Absence of penalties in a law does not translate that the law can be ignored.
I would agree that, when rubber hits the road, absence of penalty might encourage flouting of the law -- hence rendering it fairly ineffective, but at the end of the day, breaking the law is still breaking the law.
And the PRA is a law, passed by Congress, proscriptively spelling out steps necessary for compliance. . .(An Obstruction charge) would be a lengthy chain of events to prove.
First, need to identify the conspiratorial act.
Second, need to pinpoint a date where the firings can be deemed a conspiracy.
Third, need to show that continued disregard of PRA protocol following that established date was in furtherance of covering up the initial conspiratorial act.
That forced me to think through the chain of events that have brought the White House into conflict with Congress. What are the actual elements of a crime if the Executive sought to avoid the requirements in the PRA to make and keep records of the internal discussions and decisions to fire Lam and the other US Attorneys? What if that was indeed done to Obstruct her investigation of Congressman Lewis? Related, what if the White House somehow involved itself in obtaining a golden parachute for former US Attorney Yang. How would one prove such charges?
Then it occurred to me: what if the White House made the same mistake I did in initially reading the PRA as being inherently toothless? What if Bush, Rove, Harriet and Abu failed to consider how failure to make, keep, and surrender records of their own deliberations in the matter could be used as the basis for an Obstruction charge against them?
I responded to citizen92’s points, trying to address each in turn,
"Yes, those are the elements of conspiracy charges:
- The "18-day gap" (in e-mails) and the "240-day gap (in other Presidential records)"
- Let's start with May 11, 2006. That's the date that Sampson e-mailed the White House Deputy Counsel Bill Kelly that "we have a real problem with Lam", who was investigating then House appropriations Chair Jerry Lewis.
That would also be about the time that a second USA, Debra Wong Yang, started investigating Lewis. Shortly thereafter, Yang started looking for another job. On Oct 17, 2006 Yang announced she would be resigning as US Attorney for Southern California, effective November 10th, accepting a partnership with Ginbson, Dunn, the LA law firm that had been representing Rep. Jerry Lewis. Wong stated at the time of her announced departure that her decision to leave her US Attorney post dated back to the summer. http://www.metnews.com/... The job offer came with a $1.7 million signing bonus. At that time, Yang's office had been investigating Lewis' relationship with lobbyist(s) for five months. http://www.fortwayne.com/... The date of Yang’s decision to resign seems to have followed immediately on the heals of both the May 11 Sampson e-mail to the White House Counsel about the "serious problem with Lam" , and the date that her own office reportedly started its investigation of Congressman Lewis.
Both events – the Sampson e-mail and the departure and rehiring of Yang by the law firm representing Cong. Lewis -- appear related to the the same conspiracy that involves the January 2007 firing of USA Carol Lam, who was also investigating criminal matters involving Rep. Lewis' PAC and his relationship with MZM and other funders giving money to Cunningham, Lewis, other GOP Congressmen, and the White House. That firing was approximately 240 days after Sampson's e-mail, but where are the memos of discussions about that within the White House?
- There seems to be a 18-day gap in e-mail records provided Congress, according to TPM Muckraker -- http://www.talkingpointsmemo.com/... -- between November 15, 2006, the date the DoJ originally planned to start making calls notifying US Attorneys of their dismissals,and December 4 only one e-mail was forwarded to investigators as part of the "data dump". We also have yet to see any notes taken at DOJ and the White House related to personal discussions between Kelly, Meiers and Bush that would have occurred subsequent to the Sampson e-mail on May 11. Sampson references issues that would have required further discussion, such as the Lam "problem". Further discussions between Sampson and Gonzales, and between Gonzales and Bush, would reasonably be expected to follow. We know that an action was taken (Lam's firing by Bush's order in January), but there doesn't seem to be documentation of such communications, as required by PRA.
I believe we could get a Title III warrant with that kind of circumstantial evidence of conspiracy and OOJ. "
As Richard Nixon found, the President does not have privilege to withhold materials bearing on his own wrongdoing or that of his aides. There is already prima facie evidence that a crime has occurred. Bush will lose on that point, just as he lost before this Court in the Hamdan case on the issue of his imagined "unitary executive" powers. If the Bush White House refuses to hand over documents, or it turns out these documents were never created as required by law, then that is grounds for impeachment that the Republicans resist at their extreme political peril.
If the White House suddenly smartens up, they will renounce Fielding’s letter, at least the part about refusing to produce internal memos. They should endeavor to locate and produce every piece of paper, memo, and other record of internal deliberations, decisions and communications remotely related to this. If they don’t, Congress should simply call today for a Grand Jury to commence criminal Obstruction proceedings.
It's always the cover-up. We'll see if they've learned anything.