Thursday, May 3, 2007
Although the controversy over the firing of eight U.S. Attorneys has largely receded from the media's view, the Senate Judiciary Committee is pressing forward by issuing a subpoena to Attorney General Alberto Gonzales requiring the production of e-mails to or from senior Presidential adviser Karl Rove. The subpoena marks a turn in the investigation for the Senate Committee because this is the first subpoena for documents it has issued, although its House counterpart has subpoenaed records. The subpoena (here) requires production of the following:
Complete and unredacted versions of any and all emails and attachments to emails to, from, or copied to Karl Rove related to the Committee’s investigation into the preservation of prosecutorial independence and the Department of Justice’s politicization of the hiring and firing and decision-making of United States Attorneys, from any (1) White House account, (2) Republican National Committee Account, or (3) other account, in the possession, custody or control of the Department of Justice, including any such emails that were obtained by U.S. Attorney Patrick Fitzgerald as part of the investigation into the leak of the identity of a covert CIA officer by officials in the Administration that led to the conviction of I. Lewis “Scooter” Libby.
The third source is particularly interesting because it seeks e-mails obtained previously by Patrick Fitzgerald in the Valerie Plame leak investigation, which stretched well into 2005. By subpoenaing the Department of Justice and not the White House, the Committee should avoid any claim of executive privilege to prevent the production, and seeking the Special Counsel's documents means that some internal White House e-mails may be available. One problem may be if the Department of Justice claims the e-mails gathered by Fitzgerald are grand jury material and therefore protected by the secrecy requirement of Federal Rule of Criminal Procedure 6(e) that prevents disclosure of such information without prior judicial approval.
A bi-partisan group of Judiciary Committee members (Leahy, Specter, Feinstein, Grassley, Schumer, and Sessions) also sent a letter (here) to Gonzales requesting production of the 2006 confidential order delegating in large measure authority to hire and fire political appointees in the Department of Justice to the AG's chief of staff (Kyle Sampson) and White House liaison (Monica Goodling) . The order had gone unmentioned in Gonzales' earlier testimony before the Committee, and the Senators expressed more than a little bit of exasperation at the failure to turn it over earlier:
The Committee has issued multiple requests for the Department to produce documents in its custody, possession or control related to the Committee’s investigation into the firings of U.S. Attorneys and alleged politicization at the Department, and to provide the Committee with the precise scope of the production. Despite these requests, the order has not been produced and its existence has not been disclosed. The order appears to be responsive to the Committee’s requests insofar as it dealt with the appointment and removal of inferior officers who are not subject to Senate confirmation, which would include interim and acting U.S. Attorneys. Consequently, we ask that you please produce the order and all related documents immediately.
Is the firing of the U.S. Attorneys headed back to the front pages? An AP report (here) states that the Department of Justice's Inspector General and the Office of Professional Responsibility are investigating whether Goodling used political criteria in hiring Assistant U.S. Attorneys, a career position insulated from such considerations. It's unclear why someone in the AG's office would even get involved in hiring decisions in the local federal prosecutors offices aside from the appointment of the U.S. Attorney, even if it only occurred in offices headed by interim or acting U.S. Attorneys. The fact that the AG's White House liaison might have had a say in the hiring of line AUSAs raises substantial questions about the politicization of the U.S. Attorney's Offices. The Congressional committees show no sign of moving on from the investigation, and the House Judiciary Committee will hear testimony from Gonzales later in May, so it should stay alive at least that long. The internal DOJ investigation of Goodling may disrupt plans for Congress to grant her immunity if her participation in hiring decisions violated federal law. (ph)