The Foggo-Wilkes Leaks

Related
Dusty & 'the Boys' II: Secrets of the Black Budget Scandal
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May 08, 2007

by emptywheel

Unlike Monday's earlier filing, there is no snark in the government's response to Brent Wilkes' motion to dismiss his indictment because of pre-indictment leaks. Instead, for the purposes of the case, there's just a simple logical argument:

• Before Wilkes lawyer Geragos' complaint, DOJ had already started an investigation into the pre-indictment leaks.

Note: the timing on this is a bit fishy. The filing says only that the San Diego USA Office forwarded the Geragos' February 1 allegations to main DOJ "several weeks" before Geragos' formal complaint, which was April 23. So it's possible that SDUSAO didn't do it immediately upon receiving the letter.

• On November 29, 2006, one of Wilkes' prior lawyers acknowledged that Wilkes was named in the Cunningham indictment.
• Several of the press reports cited by Geragos are not incriminating (for example, the could be based on the earlier revelations about Wilkes mapped onto the Cunningham indictment).
• For the key leaks (specifically, that government officials had shown draft indictments to reporters, that Lam had set a deadline for the indictments, and that Main DOJ was worried about the leaks), Geragos has provided no substantiation--and the substance of the leaks was not published.

That's the legal argument. But I'd like to go back and review the whole back and forth to see if we can get to what happened with the leaks (the ones from January, rather than the ones going back to 2005).

Geragos' February 1 Letter and Lam's Response

The issue started on February 1, when Wilkes lawyer Mark Geragos sent Carol Lam a letter memorializing a conversation he had with AUSA Sanjay Bhandari. Geragos quoted from two newspaper articles that, he said, showed "wholesale leaking of matters occurring before the grand jury."

The first cited two federal officials saying the SD USAO was close to seeking an indictment for Wilkes. The article described the first source this way.

The source, who has intimate knowledge of the case and spoke on condition of anonymity, said a preliminary draft indictment is under review by "many eyes on what is going to be proposed to the grand jury," the Times reported.

And it specified that the second source was from another agency.

Another official who is with a different agency but is also familiar with the case said an indictment is "imminent,"

The second article Geragos cited in his letter also relied on two government officials.

Federal prosecutors are preparing to seek indictments against a former top CIA official and a San Diego defense contractor linked to the bribery scandal that sent former U.S. Rep. Randy "Duke" Cunningham to prison, two government officials familiar with the investigation said Wednesday.

But the article later suggested that these government officials were not prosecutors.

Prosecutors in San Diego would not comment about an ongoing investigation.

Allison Hoffman, the author of this second article, would write a detailed description of the alleged crimes just six days later that clearly relies at least partly on CIA sources. That second Hoffman article again cited the two government officials--and others--and broadened the list of those who refused to comment on the case:

Those officials and others spoke on condition that they not be identified because the charges have not been finalized and because CIA contracting is classified. Justice Department and law enforcement officials in San Diego and Washington declined to comment.

In addition to those two articles (the second Hoffman article post-dates Geragos' letter), Geragos describes another leak.

As I told Mr. Sanjay [note Geragos may be deliberately trying to rile Bhandari, because he misspells his name elsewhere in the letter in addition to referring to him here as Mr. Sanjay] during our phone call today, it has been brought to my attention that yet another reporter who today claims to have been shown two separate indictments of Mr. Wilkes. One in the Foggo matter and one related to Thomas Kontogiannis. In addition, this reporter was apparently told prosecutors wanted to arrest Mr. Wilkes possibly as early as today on one of those indictments.

But this journalist got the story wrong--not only was Wilkes not arrested on February 2, but Kontogiannis was not indicted with Michael and Wilkes. The latter mistake--predicting an indictment for Kontogiannis--is one Hoffman's sources made too.

This was a point Carol Lam made in her response to Geragos--she requested more details about the journalist spreading leaks with wrong information.

We invited you to provide any specific information you have, including contact information for the reporter who claimed that he had seen copies of indictments, but had his facts wrong.

The March 19 Hearing

The leaks to journalists become a central issue in the March 19 hearing, which was ostensibly about arranging the sharing of classified information. Against the background of the discussion of secrecy associated with classified information, Judge Larry Burns scolds the government team about leaks (the AUSA here is Halpern).

Halpern: What I can say is it has nothing from prosecution team. There have been no leaks [of classified information]. There certainly have been no suggestions that any information that we had that we're under control of has been leaked.

The Court: I disagree, Mr. Halpern. Look at their Exhibit B to the motion.

Burns goes on to read from the first Hoffman article (though he did not read the line noting that prosecutors would not comment). Burns labels that leak as a violation of grand jury secrecy rules.

You and I both know that's a violation of Rule 6. Whoever did that shouldn't have done it.

Mr. Halpern: Clearly your honor. But I don't think there's an indication that that's a member of the prosecution team.

The Court: It's somebody associated with the government that's forecasting this for the media and telling them what's going on in front of the grand jury.

Mr. Halpern: There are many people associated with the government. I'm not going to quarrel on the Court's point. I think you're making a valid point.

Burns returns to the issue again.

The Court: Somebody ignored the conventions of federal criminal practice and Rule 6 in the two disclosures that were made. Somebody did.

[snip]

Again, I'm not assuming that this has anything to do with you or Mr. Forge or Ms. Chu. I'm assuming it was somebody else who was anxious to get a headline or do something that led to this.

I take your point, Mr. Halpern, that whoever it was didn't disclose confidential secret national security information, but it was still--it's a pretty egregious violation to say, "here's what's going on in front of the grand jury, and expect an indictment in the next couple of weeks."

Mr. Halpern: Your honor, there's no way I will defend that action be whoever it was made, and I don't intend to.

All of this makes something crystal clear to the defense attorneys: Burns is pissed about the leaks, and they can use that to their advantage. Which Geragos then does.

Could I also address one other area, which is the leaks and the idea of the stand-alone order.

I had suggested in a letter prior to my client's indictment, because I was so irate at the time and I've mentioned before, that I wanted all of the people on the prosecution team, however we want to define that, to file declarations under penalty of perjury.

[snip]

As this court well knows, the source privilege is not met with a whole lot of success in the federal courts anymore. Unfortunately, in the state courts it's still there. And you can't get to the bottom of this. Here we can get to the bottom of this. Clearly, as they've conceded, it did not come from the defense. I think it potentially is Brady or Giglio information as to who it is who willingly will go out and violate 6(e).

And the way to find out is to get these people to put their declarations under penalty of perjury and bring in the reporters and put them under oath and let them say who it was who disclosed the information.

Note Geragos' move here. He says that, because this is a federal case, the reporters privilege does not hold up, so the Court can order the journalists to reveal their sources.

At this, one of Foggo's lawyers, Randolph Teslik pipes up to note that he, too, learned the details of the indictment from a reporter.

Just for the record, we learned the details of the indictment from a telephone call from a reporter before the indictment was returned as well. We didn't put that in our motion. But given the nature of the representations and the Court's concerns here about 6(e), I think it's important that the record reflect that we got the same telephone call as Mr. Geragos.

The hearing as a whole served to get Burns riled up about leaks to reporters and to get Halpern to cede the seriousness of the leaks. Which Geragos then uses to set up his May 23 motion to have the entire indictment dismissed because of the leaks.

Geragos' May 23 Motion to Dismiss the Indictments

Foggo's lawyers file a motion regarding the leaks on May 23, too. But they don't ask for a dismissal. They only ask for a thorough investigation. But Geragos, as is his wont, goes big, asking to have all the charges dismissed. I don't think he really hopes this will work. But he does use it to foreground the Lam dismissal, suggesting Lam leaked the information personally to pressure main DOJ to approve the charges.

Before indictments were returned against Mr. Wilkes, news articles cited government officials as the source of secret grand-jury material. Those government leaks to reporters disclosed secret matters before the grand jury violating of Federal Rule of Criminal Procedure 6(e), including the targets of the grand jury, the nature and focus of the investigation, and the likelihood that an indictment would be returned and when.

During the grand jury proceedings, counsel for Mr. Wilkes regularly received phone calls from reporters relaying specific information about the pending indictments. The reporters had even seen drafts of the indictments weeks before the indictments were returned. The government’s illegal disclosure of secret grand jury matter to the press was not accidental or haphazard. It was part of a deliberate campaign by the former United States Attorney, Carol Lam, to use Mr. Wilkes and the other defendants here in her political squabble with the Justice Department’s main office in Washington D.C. The United States Attorney used the leaks to create a public atmosphere that compelled the grand jury to return indictments and present Main Justice with a fait accompli, a gesture of defiance by Carol Lam as she was forced out of office.

There are important points that Geragos makes in his statement supporting the motion. First, he uses Halpern's concessions from the March 19 hearing to put the blame back on the prosecution team.

As the prosecutors have conceded in open court, these leaks can only have been from members of the prosecution team.

Second (though I'm presenting this out of order), he describes hearing from six different reporters, two of whom have printed all the information shared with Geragos, his colleagues, or Wilkes. He then explains he has attached the stories representing these leaks.

At least six reporters telephoned me, my co-counsel, or my client. At least two of those reporters published all or part of the information disclosed to them by government officials in violation of Rule 6(e). Attached hereto as Exhibit 2 are true and correct copies of newspaper articles from a few of those outlets as authored by some of those reporters disclosing secret grand jury matters illegally disclosed to them by government officials.

As the government points out in its response, some of these articles could be based entirely on Wilkes' previous lawyers' own revelations coupled with reading the Cunningham indictment. Further, two of these articles are those described above in connection with the February 1 letter, which report that the prosecution team would not comment. Also, it includes the article apparently relying on CIA sources. In other words, the visible evidence Geragos supplies doesn't really prove that the prosecution team was behind the leaks--one point the government made in its response.

I'm curious, though, about the reference to Wilkes. Because I'd be deeply curious about any so-called leaks going directly to Wilkes. Was Wilkes, for example, the one who received the erroneous leak referenced in Geragos' February 1 letter?

The leaks for which Geragos provides evidence don't really support his larger argument to dismiss the case. But Geragos uses another leak--one not apparently reported--to implicate Lam in the leak.

A few days before the indictments were unsealed, I received a telephone call from a local reporter who told me that the United States Attorney would ask the Grand Jury to issue the indictments against Mr. Wilkes the following day, and described, in detail, the contents of those indictments. When I asked the reporter about the timing of the indictments, the reporter told me that United States Attorney, Carol Lam, wanted the indictments issued and announced before her departure date the following Thursday, two days later.

This is the basis, presumably, for Geragos' claim that Lam was behind the leaks.

Finally, Geragos reports another leak that also has not been reported on--and this one comes from Main DOJ.

Around the same time the print reporters were disclosing to me detailed knowledge of the draft indictments, and stating that government officials were showing them copies of draft indictments, a television reporter told me that an attorney at the Justice Department main offices in Washington D.C. (“Main Justice”) had disclosed that Main Justice believed that it could no longer exercise its normal supervisory role because the leaks of the indictment “would now make any action taken by Main Justice appear to be political”.

This is the final necessary piece for Geragos' argument, because it suggests that the leaks prevented Main DOJ from fulfilling their normal supervisory role in the case. The implicit message here is that Main DOJ would have prevented the indictments, if only someone (and Geragos alleges that someone is Lam) leaked all the details in the case. Of course, simple logic would tell you that the burgeoning USA Purge--and not the leaks in San Diego--limited Main DOJ from intervening too obviously in the case. But the leaks provided a convenient excuse--presumably for a member of the clique back in DC--to taint the indictments.

Government's May 7 Response

Which is what brings us to the real anger evident in yesterday's government response to Geragos' motion. While the rest of the response simply shows that almost all of the evidence Geragos relies on is either irrelevant or wrong, the last passage of the response makes strong insinuations that the most important pieces of Geragos' argument--those touching on Lam's involvement and Main DOJ's response to the leaks--lack corroboration.

In the weeks and months since Wilkes’s counsel sent his February 1st letter, made his representations at the March 19th hearing, and filed his April 23rd declaration, not a single article or story has been published or broadcast that corroborates his representations regarding: (1) the disclosure to the media of actual draft indictments; (2) frustration at Main Justice over a perceived inability to exercise its normal supervisory role over these cases; or (3) a reporter’s pre-indictment awareness of the detailed contents of the indictments.

Under the circumstances, Wilkes’s counsel’s declaration simply raises more questions than it answers. For example, why, in the most publicized case in this district, and one that has generated national interest, did no reporter report any of the events described in paragraphs 5 and 6 of Wilkes’s counsel’s declaration?

The insinuation is clear. The leak that implicated Lam and the one that reflect hesitation at Main DOJ were never published. They were simply shared with Geragos, and then dropped. Why would a reporter with such an incendiary story just sit on it?

While I suspect the reporter alleging that Lam had ordered indictments before her departure may have been speculating (it was a common speculation at the time), I'm most curious about the Main DOJ leak. The clique at Main DOJ had been panicking about public coverage of Lam's resignation since mid-January. In early February, Rahm Emmanuel and others requested that Lam be made a special prosecutor on the Wilkes case. Geragos' TV reporter would have you believe that it was the leaks--and not the larger USA Purge scandal--that forced Main DOJ to back off of any intervention into the Wilkes indictment.

No wonder the prosecution team sounds so skeptical.

May 08, 2007 at 11:01 in Bush/Republican Scandals, Contributor--emptywheel | Permalink

House memo targets Rove e-mails

Politics

(Charles Dharapak/AP) White House political adviser Karl Rove uses his wireless e-mail device while accompanying President Bush, not pictured, in Long Beach, Miss., in this March 1 file photo. A House committee has sent a memo to federal agencies dictating how they should conduct a wide search for e-mails involving political appointees, White House adviser Karl Rove and other aides. Rowan Scarborough, The Examiner 2007-05-07 19:07:05.0 Current rank: # 43 of 15,585 WASHINGTON - A House committee has sent a memo to federal agencies dictating how they should conduct a wide search for e-mails involving political appointees, White House adviser Karl Rove and other aides. The memo from the House Committee on Oversight and Government Reform provides a nine-step guidance on how Chairman Henry Waxman, D-Calif., wants bureaucrats to search six years' worth of e-mails. "The search should include any e-mails received or sent by any covered agency official after January 20, 2001 and before April 12, 2007," says the two-page memo, a copy of which was obtained Monday by The Examiner. Waxman's Democratic staffers earlier sent out a letter demanding e-mails, but agencies reported back that the request was unclear. "The following instructions provide additional guidance on complying with the committee's request," states the new memo, which was sent by e-mail on April 20. Waxman has used his committee to launch a series of investigations into the Bush administration. In this case, his staff is investigating whether political appointees violated the Presidential Records Act by avoiding government e-mails, which are archived, and using private e-mail accounts provided by the Republican National Committee. The act requires that sufficient e-mails be retained to adequately document an issue. A House Republican aide said no wrongdoing has been found so far. The aide said appointees typically use RNC e-mail accounts when they are conducting nongovernment political business. The demanded search reaches into all corners of the federal government, even the Defense Department. One Pentagon official complained to The Examiner that working hours devoted to the war on terrorism are now being diverted to scan thousands of e-mails dating back to President Bush's first inauguration. The oversight committee is looking for e-mails that were sent to, or received by, these accounts: gwb43.com, georgewbush.com and rnchq.org. Its memo lists four types of "covered agency officials" - basically political appointees. It specifically mentions 15 people in whom the committee is particularly interested. They include Rove, former Republican National Committee Chairman Ken Mehlman, and 13 other current and former White House aides. "For each covered agency official, the search should include the official's e-mail account, any archive of e-mail account including printed e-mails where appropriate, servers, and any backup tape or other backup media containing e-mails to or from the official," the committee memo states. The committee said that if an agency finds the request "unduly burdensome," it can divide its list of covered officials into two categories: ones who were likely to communicate with the White House and those who were not. rscarborough@dcexaminer.com Examiner

Justice Official Says He Was Directed To Call Fired Prosecutors; Rove, Still In the Mix

Related
Rove, Still In the Mix

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JUSTICE DEPARTMENT

National Journal
© National Journal Group Inc.
Thursday, May 3, 2007

Justice Department Probe Previous coverage from National Journal: • Gonzales Order Gave Aides Extraordinary Powers (4/30/07) • Aborted Probe Probably Would Have Targeted Gonzales (3/15/07) • Bush Blocked DOJ Probe (7/18/06) • What Ashcroft Was Told (6/8/06) More stories from Murray Waas

The chief of staff to Deputy Attorney General Paul McNulty has told congressional investigators that phone calls he placed to four fired U.S. attorneys -- calls that three of the prosecutors say involved threats about testifying before Congress -- were made at McNulty's direction.

Michael Elston, the chief of staff, told congressional investigators in a closed-door session on March 30 that McNulty specifically instructed him to make the phone calls after the Justice Department's No. 2 official learned that the fired prosecutors might testify before Congress about their dismissals.

A transcript of Elston's confidential interview with the congressional investigators was made available to National Journal.

The U.S. attorneys have said that Elston, in effect, told them that if they kept quiet about their dismissals, the Justice Department would not suggest that they had been forced to resign because of poor performance.

At least one member of Congress has questioned whether the phone calls might constitute obstruction of justice.

In his interview with congressional investigators, Elston adamantly denied that he ever tried to discourage the prosecutors from testifying before Congress. He said that he was directed by McNulty to tell the fired U.S. attorneys that the Department of Justice did not have a formal position as to whether they should testify.

At least one member of Congress has questioned whether the phone calls might constitute obstruction of justice.

Elston said that McNulty directed him to place calls to fired U.S. attorneys Paul Charlton of Arizona, Bud Cummins of Arkansas, and John McKay of Seattle, all of whom said they felt pressured to keep quiet. Elston also placed a call to federal prosecutor Kevin Ryan of San Francisco, as directed, but did not speak to him. The calls were placed between January and March of this year -- before details about the political motivations for the firings became public.

On Wednesday, the House Judiciary Committee made public formal correspondence from three fired prosecutors who said they thought that Elston was trying to intimidate them into keeping quiet.

In an interview with National Journal, McKay, reacting to Elston's disclosure that McNulty directed him to make the calls, said, "Because [Elston] was the chief of staff to the deputy attorney general, I always assumed that the phone call was authorized and directed by the DAG. If Elston is telling the truth, it is all the more troubling."

McKay, who was the first of the prosecutors whom Elston called, described Elston's message to him: "The attorney general was not going to disclose that I or the other U.S. attorneys were fired or forced to resign.… 'We have no intention of naming people.'"

McKay said that Elston never specifically suggested an explicit quid pro quo whereby Justice officials would not say that McKay had been fired for cause or poor performance if McKay did not talk to the media or Congress about his firing. However, McKay said, "a reasonable person would have felt both offended and threatened" by Elston's call.

McKay said that the message he took away from the conversation was, "If you remain silent, we will not out you as someone who was forced to resign."

McKay said that he made contemporaneous notes of his conversation with Elston, and dated them -- something, he said, that was not his ordinary practice. He did so because of his concerns about what Elston was telling him, according to McKay.

Charlton said he got a similar phone call from Elston on the same day. In formal response to written questions posed to him by the House Judiciary Committee, Charlton said, "I believe that Elston was offering me a quid pro quo agreement: my silence in exchange for the attorney general's."

Cummins testified before the Senate Judiciary Committee on March 6, at which time a contemporaneous e-mail he wrote within an hour of his phone call with Elston was released. In the e-mail, which he sent to five of his fellow prosecutors, Cummins said that the "essence of [Elston's] message" was that if any of the fired U.S. attorneys had pressed their case in the media or before Congress, senior aides to Attorney General Alberto Gonzales might "feel forced to somehow pull their gloves off" and accuse the prosecutors of ineptitude or poor management.

Cummins also wrote in his e-mail that Elston had called him because he was upset about comments Cummins had made in the press about his firing. "[Justice officials] feel like they are taking unnecessary flak to avoid trashing each of us," Cummins said in the e-mail to his fellow prosecutors. "I also made it a point to tell him that all of us have turned down multiple invitations to testify. He reacted quite a bit to the idea of anyone voluntarily testifying, and it seemed clear that they would see this as a major escalation of the conflict meriting some kind of unspecified form of retaliation."

McKay, one of the prosecutors who got the e-mail, said: "[Cummins] wanted to send a message to all of us. We got that message, loud and clear: If you talk to the press or go to Congress, the Department of Justice will not consider you a friend. I considered it an act of intimidation."

In his interview with congressional investigators, Elston said that he called Cummins and the other U.S. attorneys "at the deputy attorney general's direction" and "to reassure them that the attorney general was not going to name names."

Elston said that McNulty only wanted him to tell Cummins that the department had no position on whether he should testify: "[McNulty] also told me to be very careful when I called Bud back and to make it very clear to him the Department of Justice had no position on whether he testified or not. And that he could testify if he wanted to, or not testify. It was entirely up to him.

"And that conversation sticks in my mind because the deputy attorney general was very earnest and being very careful. And having no experience on Capitol Hill... I followed his instruction."

Congressional investigators asked Elston about an e-mail in which Gonzales's then-chief of staff, D. Kyle Sampson, wrote to other Justice Department officials that he did not think it was a good idea for Cummins to testify. Elston also told investigators, "The deputy attorney general [McNulty], I think, concurred with that."

During the interview with investigators, Elston also said that in his February 20 phone call to Cummins it was the prosecutor who expressed a desire to remain loyal to the department and to not testify. "[Cummins] said a number of things, but one of them was, 'I still want to be on the team, and I don't have any hard feelings,' " Elston testified. " 'I would like to be a federal judge someday, and I didn't think the Democrats are going to nominate me.'"

In an interview, Robert Driscoll, Elston's attorney, said that the U.S. attorneys might have been mistaken in their accounts of their phone calls with his client. "From the information I have seen, none of the fired U.S. attorneys quote Mike as making any type of explicit threats, and each one focuses more on their interpretation of the conversation than [on] what Mike actually said. Their interpretations appear in some instances to be unjustified, based on their own descriptions."

Justice Department spokesman Brian Roehrkasse disputed the notion that Elston’s phone calls to the fired prosecutors could have been viewed as an attempt to keep them from testifying before Congress. At the time the first phone calls were made in January, Roehrkasse said, the issue of the prosecutors' dismissals had attracted so little attention that it would have been highly unlikely that any of prosecutors would have thought that they might be called upon to appear before Congress.

The stakes are high for McNulty if key members of Congress or investigators believe that he directed Elston to discourage any of the U.S. attorneys from testifying.

At the March 6 Senate Judiciary hearing, Sen. Sheldon Whitehouse, D-R.I., asked Cummins and three others U.S. attorneys what they would have done in their capacity as federal prosecutors had they learned that an interested party in one of their investigations had tried to discourage a witness from providing information or testifying. All four said that they would have investigated the matter to determine a possible obstruction of justice.

"Mr. Cummins, let me ask you first. I'd like to ask you to put your U.S. attorney hat back on," Whitehouse said. "You're still in office, and think of a significant grand jury investigation that you led as United States attorney in your district. And consider that a significant witness in that grand jury investigation has just come into your office to relate to you that prior to his grand jury testimony he was approached about his testimony and [told]... essentially exactly the words that Mr. Elston approached you. What would your next step be as United States attorney?"

Cummins responded: "We take intimidation of witnesses very seriously in the Department of Justice and the U.S. attorney's office, so we would be very proactive in that situation."

Attempting to moderate his statement, he added: "I would qualify that by saying that at the time this discussion was had, we weren't under a subpoena; the idea of testifying was just kind of a theoretical idea out there. And I would say … to the extent we talked about testimony at all, it was the idea that running out and volunteering to be part of this would not be viewed charitably by the people that it would affect."

Whitehouse pressed Cummins: "But if that sort of approach had been made to a witness in an active proceeding that you were leading, and you were extremely proactive about it, that would lead you where?"

"Well, we'd certainly investigate it and see if a crime had occurred."

"And the crime would be?"

Cummins responded: "Obstruction of justice. I think there are several statutes that might be implicated -- but obstruction of justice."

Whitehouse posed the same question to John McKay, the fired U.S. attorney from Washington state.

McKay responded: "I would be discussing it with the assigned prosecutor and federal agents."

"With regard to?"

"With regard to possible obstruction of justice."

Whitehouse next put the question to David Iglesias, the fired U.S. attorney from New Mexico:

Iglesias replied: "Same answer, sir. I would contact the career [assistant U.S. attorney] and probably the FBI and talk about what's the evidence we have to maybe move forward on an obstruction investigation.

Finally, Whitehouse looked toward Carol Lam, the fired U.S. attorney from San Diego.

She answered without hesitation: "Fundamentally the same answer: witness intimidation."

By Murray Waas

The U.S. Attorney, the G.O.P. Congressman and the Timely Job Offer

May 4, 2007

Editorial Observer

By ADAM COHEN

There is yet another United States attorney whose abrupt departure from office is raising questions: Debra Wong Yang of Los Angeles. Ms. Yang was not fired, as eight other prosecutors were, but she resigned under circumstances that raise serious questions, starting with whether she was pushed out to disrupt her investigation of one of the most powerful Republicans in Congress.

If the United States attorney scandal has made one thing clear, it is that the riskiest job in the Bush administration is being a prosecutor investigating a Republican member of Congress. Carol Lam, the United States attorney in San Diego, was fired after she put Randy Cunningham, known as Duke, in prison. Paul Charlton, in Arizona, was dismissed while he was investigating Rick Renzi. Dan Bogden, in Nevada, was fired while he was reportedly investigating Jim Gibbons, a congressman who was elected governor last year.

Ms. Yang was investigating Jerry Lewis, who was chairman of the powerful House Appropriations Committee. Ms. Lam and most of the other purged prosecutors were fired on Dec. 7. Ms. Yang, in a fortuitously timed exit, resigned in mid-October.

Ms. Yang says she left for personal reasons, but there is growing evidence that the White House was intent on removing her. Kyle Sampson, the Justice Department staff member in charge of the firings, told investigators last month in still-secret testimony that Harriet Miers, the White House counsel at the time, had asked him more than once about Ms. Yang. He testified, according to Congressional sources, that as late as mid-September, Ms. Miers wanted to know whether Ms. Yang could be made to resign. Mr. Sampson reportedly recalled that Ms. Miers was focused on just two United States attorneys: Ms. Yang and Bud Cummins, the Arkansas prosecutor who was later fired to make room for Tim Griffin, a Republican political operative and Karl Rove protégé.

It is hard to see what put Ms. Yang on the White House list other than her investigation of Mr. Lewis, which threatened to pull in well-connected lobbyists, military contractors and Republican contributors. Ms. Yang, by all accounts, had a strong record. Alberto Gonzales hailed her as “one of the most respected U.S. attorneys in the country.”

--MORE--

Senate orders Gonzales to provide e-mails related to Rove

Senate subpoenas Gonzales on Rove e-mail

By LAURIE KELLMAN, Associated Press Writer1 hour, 7 minutes ago

Senators subpoenaed Attorney General Alberto Gonzales Wednesday, ordering him to provide all e-mails related to presidential adviser Karl Rove and the firings of eight federal prosecutors.

"It is troubling that significant documents highly relevant to the committee's inquiry have not been produced," Judiciary Committee Chairman Patrick Leahy (news, bio, voting record), D-Vt., wrote in a letter to Gonzales. The subpoena gives Gonzales until May 15 to turn over the information.

Not accepting the White House's explanation that some of the Rove-related e-mails may have been lost, Leahy subpoenaed any in the custody of the Justice Department. Leahy pointed to Rove's lawyer's statement that some of those the White House claims might be lost had been turned over to U.S. Attorney Patrick Fitzgerald as part of the investigation into the leak of CIA agent Valerie Plame's identity.

It was unclear whether any of those were related to the prosecutor firings, but congressional investigators believe that if Fitzgerald could retrieve some e-mails for his investigation, the ones related to the firings of U.S. attorneys are recoverable as well.

The White House has said it is trying to recover e-mails that were lost but has not promised to turn any over to congressional investigators.

A Justice Department spokesman did not immediately return a call seeking comment.

Gonzales said during his April 17 testimony to Leahy's committee that he did not know the details but would get back to the chairman.

"I have not heard from you since," Leahy wrote, urging compliance with all of his panel's requests for information "to avoid further subpoenas."

It was the committee's first subpoena issued since the firings caused an uproar earlier this year and imperiled Gonzales' job.

The order compels the Justice Department to turn over "complete and unredacted versions of any and all e-mails and attachments to e-mails to, from, or copied to Karl Rove" related to the firings, written on White House, Republican National Committee or any other e-mail accounts.

The committee is probing whether Rove and other top White House officials conducted official business on RNC accounts intended for political work, then deleted them in violation of the law.

Emerging picture of Bush's politicization of the federal government isn't pretty

Teepen

Cox News Service
Tuesday, May 01, 2007

Bit by bit, as odd scraps of information surface, the hidden history of George W. Bush's presidency is emerging, like a jigsaw puzzle coming together.

With complaints becoming public, the Justice Department has announced it will remove political appointees as screeners for hiring interns and young attorneys. That's the sort of bureaucratic bric-a-brac shuffling that usually goes unremarked and, if reported at all, is sensibly ignored by anyone with something better to do, which would be just about anything.

But in a nifty piece of enterprise, a Washington Post report makes it clear why this little in-house dance shouldn't be sloughed off. The tale adds importantly to the disturbing story of the Bush administration's program to politicize every nook and cranny of the federal government.

The department's well-regarded Honors Program and Summer Law Intern Program have been reduced under Bush and his go-fer attorneys general, John Ashcroft and Alberto Gonzales, to partisan hiring halls. The Honors Program, a creation of the Eisenhower administration, had in the past been conducted by Justice's senior career attorneys.

With Bush political appointees in charge, applicants found themselves in interviews that suggested less a professional assessment than an ideological vetting. There has been a sudden influx from doctrinally conservative law schools and from the Federalist Society, created to nurture activist conservative lawyers. (The society is a major source, as well, of Bush judicial appointees.)

Ideological influence has left the Justice Department's civil rights division basically inert and has reached high into the department's top ranks. Monica Goodling, counselor to Gonzales, has threatened to take the Fifth Amendment against self-incrimination if subpoenaed to testify to Congress about the political purge of U.S. attorneys. She came to Justice's leadership from Messiah College and Regent University Law School, a Pat Robertson spin-off.

The U. S. attorneys' removal for obviously ideological and partisan reasons and Justice's politicization of traditionally professional positions make a snug fit with other Bush practices.

From its first days, this White House has outfitted federal departments with political minders, usually installed in management and policy positions that are influential but typically below public radar.

Under Edwin Foulke, a Republican Party operative, OSHA, responsible for worker safety, has shifted from enforcement to taking industries' word that they will play nice. Perhaps not coincidentally, the three largest fields regulated by OSHA — agribusiness, construction and transportation — have off-loaded $630 million into GOP coffers during Bush's run so far.

The Bushified Environmental Protection Agency ignores science — or even brazenly rewrites it — to act out the right's conviction that environmental concerns rank somewhere between mistaken and nutty. Political appointees override the agency's professionals at will, the case repeatedly in this administration.

The White House sent a political operative to General Service Administration offices to brief the administration's political appointees on the Republican Party's 2008 priority congressional and Senate races. Why, if not to suggest that big-money GSA contracts to those districts and states could bolster Republican candidates? GSA is one of the government's largest contracting agencies.

No government is ever innocent of politics, but the relentlessness and reach of Bush's drive to turn the traditionally professional departments of the government into a chain of party proprietaries are unexampled in modern times, and it is unlikely we have heard the last of these tales.

TOM TEEPEN

Tom Teepen is a columnist for Cox Newspapers. He is based in Atlanta.

Secret Order By Gonzales Delegated Extraordinary Powers To Aides

JUSTICE DEPARTMENT

By Murray Waas, National Journal
© National Journal Group Inc.
Monday, April 30, 2007

Justice Department Probe Previous coverage from National Journal: • Aborted Probe Probably Would Have Targeted Gonzales (3/15/07) • Bush Blocked DOJ Probe (7/18/06) • What Ashcroft Was Told (6/8/06) More stories from Murray Waas

Attorney General Alberto Gonzales signed a highly confidential order in March 2006 delegating to two of his top aides -- who have since resigned because of their central roles in the firings of eight U.S. attorneys -- extraordinary authority over the hiring and firing of most non-civil-service employees of the Justice Department. A copy of the order and other Justice Department records related to the conception and implementation of the order were provided to National Journal.

In the order, Gonzales delegated to his then-chief of staff, D. Kyle Sampson, and his White House liaison "the authority, with the approval of the Attorney General, to take final action in matters pertaining to the appointment, employment, pay, separation, and general administration" of virtually all non-civil-service employees of the Justice Department, including all of the department's political appointees who do not require Senate confirmation. Monica Goodling became White House liaison in April 2006, the month after Gonzales signed the order.

The existence of the order suggests that a broad effort was under way by the White House to place politically and ideologically loyal appointees throughout the Justice Department, not just at the U.S.-attorney level. Department records show that the personnel authority was delegated to the two aides at about the same time they were working with the White House in planning the firings of a dozen U.S. attorneys, eight of whom were, in fact, later dismissed.

A senior executive branch official familiar with the delegation of authority said in an interview that -- as was the case with the firings of the U.S. attorneys and the selection of their replacements -- the two aides intended to work closely with White House political aides and the White House counsel's office in deciding which senior Justice Department officials to dismiss and whom to appoint to their posts. "It was an attempt to make the department more responsive to the political side of the White House and to do it in such a way that people would not know it was going on," the official said.

	An original draft of Gonzales's delegation of authority to Sampson and Goodling was so broad that it did not even require the two aides to obtain the final approval of the attorney general before moving to dismiss other department officials.

As was the case with the fired U.S. attorneys, the employees targeted for dismissal would never know that they had been selected by the White House or the Justice Department aides, according to records and interviews. Most of the eight fired U.S. attorneys were given the news by Deputy Attorney General Paul McNulty; by McNulty's chief of staff, Michael Elston; or by Michael Battle, another senior Justice official, typically with no mention of any role by anyone else.

An original draft of Gonzales's delegation of authority to Sampson and Goodling was so broad that it did not even require the two aides to obtain the final approval of the attorney general before moving to dismiss other department officials, according to records obtained by National Journal.

The department's Office of Legal Counsel feared that such an unconditional delegation of authority was unconstitutional, the documents show. As a result, the original delegation was rewritten so that in its final form the order required "any proposed appointments or removals of personnel" be "presented to the Attorney General... for approval, and each appointment or removal shall be made in the name of the Attorney General."

The senior administration official who had firsthand knowledge of the plan said that Gonzales and other Justice officials had a "clear obligation" to disclose the plan's existence to the House and Senate Judiciary committees -- but the official said that, as far as he knew, they had not done so. When the committees began to inquire into the firings of the U.S. attorneys, the official said, Congress had a right to know that the firings were part of an ambitious effort to install administration loyalists throughout the department. The official spoke on the condition that neither his position nor agency be identified, because he feared retaliation from his superiors and the White House for disclosing aspects of the program.

Referring to the firings of the U.S. attorneys and the broader plan targeting other Justice employees, the senior official said, "You cannot separate one from the other. They were one and part of the same plan by the White House."

The official added, "The president of the United States has said it was imperative for the attorney general, and the attorney general alone, to re-establish trust with the Congress to keep his job … and you have, even after the president has said that, the attorney general and his men stiffing Congress."

Once the order went into effect, the extent to which Sampson, Goodling, and the White House played roles in the hiring and firing of various officials in the upper reaches of the Justice Department is unclear.

Sampson And Goodling
The roles that Sampson and Goodling played in removing U.S. attorneys and selecting new ones drew fire from both Democrats and Republicans in Congress, who cited their youth, their scant prosecutorial experience, and their lack of law enforcement credentials. Goodling was a 1999 graduate of televangelist Pat Robertson's Regent University School of Law and had worked at the Republican National Committee as an opposition researcher. Sampson had tried one criminal case while at Justice and had worked as a counsel for Sen. Orrin Hatch, R-Utah, and then for the White House counsel's office before rapidly ascending to become Gonzales's chief of staff.

Sampson has testified before the Senate Judiciary Committee about the U.S. attorney firings, but Goodling resigned on April 6, after her attorney asserted her Fifth Amendment right against self-incrimination for declining to testify. The House Judiciary Committee voted on April 25 to grant Goodling limited immunity from prosecution to compel her testimony about the U.S. attorney firings.

Justice Department spokesman Brian Roehrkasse said that Gonzales's order "simply gives the chief of staff and the White House liaison the authority to execute certain decisions related to the hiring and termination of some noncareer employees with -- as the memo states -- the 'approval of the Attorney General.' The constitutional issues were explicitly resolved in the order."

Deputy White House Press Secretary Tony Fratto said it was "unremarkable" that Sampson and Goodling would be involved in the hiring and firing of Justice Department officials.

"The job of a chief of staff is to work with the White House liaison to hire qualified people," he said. "That is fairly standard practice in any large Cabinet department or agency." Fratto added, "The White House has full authority in hiring and firing presidential appointees" and "can choose to delegate that authority. There is no need for written authority to exercise that power."

Asked why, if the process is routine, Gonzales issued the confidential order, Fratto responded, "I don't know why anyone would force the need to write such a memo." He referred further inquiries to the Justice Department.

John Dowd, an attorney for Goodling, said in an interview that it was "absolutely untrue" that his client was ever delegated the authority outlined in the confidential March 1, 2006 order signed by the attorney general. "She had no authority," Dowd said, "My God, she was an assistant to the chief of staff to the attorney general. She was an assistant to the assistant." An attorney for Sampson, Brad Berenson, said that his client was not available for comment for this story.

Robert Litt, who served as a deputy assistant attorney general under former President Bill Clinton, said in an interview that during the Clinton presidency "it was routine that senior appointments in the department would be vetted by the White House. Appointees were often placed by the White House." Such a process is typical under most presidents, Litt said, because they "want to ensure that their administration's policies and priorities are carried out."

But Litt also called Gonzales's secret delegation of authority to Sampson and Goodling unprecedented. It was distressing, he said, that many of the most sensitive appointments at the highest levels of the Justice Department were to "be made by these two people with no law enforcement experience... that this extraordinary authority was being delegated to these two young puppies," and apparently without much input by more-experienced and less-partisan officials.

Even though the White House played a major role in filling Justice Department positions before and during the Clinton administration, Litt said, "there was always a bit of tugging and pulling" between the White House and career department officials in selecting top aides: "Typically, a deputy attorney general might really like someone and the White House might not, or vice versa."

In the end, however, Litt and current and former Justice Department officials said that a balance is often brokered between the policy and political imperatives of an administration and the desire of career federal law enforcement officials to protect the integrity of the criminal-justice process. When Gonzales delegated such authority, and in secret, to Sampson and Goodling, he risked tipping that balance, Litt and other officials said.

Under the plan and delegation of the authority, even the second- and third-highest-ranking political appointees in the Justice Department -- the deputy attorney general and the associate attorney general -- would no longer have final authority to staff their own offices.

Justice Department records indicate that while the order was being drafted, McNulty and other senior department officials were at times purposely kept out of the loop.

A correspondence record from Gonzales's own files indicates that when Paul Corts, the Justice Department's assistant attorney general for administration, transmitted a memo regarding the then-draft plan to Gonzales, information regarding the plan was ordered to be withheld from McNulty. A "control sheet" of the department's Executive Secretariat, which tracks sensitive records as they move among senior Justice officials, includes this notation regarding the transmission of the Corts memo to Gonzales: "Per instructions received from JMD [the Justice Department's Management Division], ODAG [the office of the Deputy Attorney General] is to bypassed on the package."

To give Sampson and Goodling hiring and firing authority, the Justice Department first had to place that authority directly under Gonzales. The department published regulations in the Federal Register on February 7, 2006, stating that the final authority would be reserved for the attorney general. In the past, the deputy attorney general, the associate attorney general, and other senior Justice Department officials had been able to staff their own offices.

Once Gonzales had the final authority, however, another barrier stood in the way: The Office of Legal Counsel believed that an unconditional delegation of authority by Gonzales to his aides would be unconstitutional. Corts so informed Gonzales in a February 24, 2006, memo: "The Office of Legal Counsel (OLC) advises that permitting the Attorney General's delegates to approve [some] appointments … would be inconsistent" with the appointments clause of the Constitution. The "excepting clause" of the Constitution requires the president alone to exercise the appointment power, or his Cabinet officers, who are appointees themselves.

The draft was rewritten to address that concern, and Gonzales on March 1, 2006, signed the final order, which read: "Under the authority of this delegation, any proposed appointments or removals of personnel who are 'inferior officers' within the meaning of [the] Excepting Clause of the Constitution shall be presented to the Attorney General... and each appointment or removal shall be made in the name of the Attorney General."

At the bottom of the delegation order, this note appeared, in all capital letters, referencing the Federal Register: "INTERNAL ORDER-NOT PUBLISHED IN F.R."

Politics And Perception
A senior Justice Department official, who did not know of Gonzales's delegation of authority until contacted by National Journal, said that it posed a serious threat to the integrity of the criminal-justice system because it gave Sampson, Goodling, and the White House control over the hiring of senior officials in the Justice Department's Criminal Division, which oversees all politically sensitive public corruption cases, at the same time that they held authority to hire and fire U.S. attorneys.

"If you are controlling who is going to be a U.S. attorney and who isn't going to be,... firing them outside the traditional process... and the same people are deciding who are going to be their supervisors back in Washington... there is too much of a potential for mischief, for abuse," the official said.

Even if there is no interference or politicization of public corruption investigations, the same official said, "you are just going to have people questioning every prosecutorial decision, when all of the people in place have been put there for political reasons."

Typically, the assistant attorney general in charge of the Criminal Division has five deputies who oversee political corruption cases and nearly all other federal criminal prosecutions. The assistant attorney general in charge of the Criminal Division is a political appointee of the president and is subject to Senate confirmation. But two of the division's five deputies are not subject to Senate confirmation. Under the order signed on March 1, 2006, their fate was delegated to Sampson and Goodling.

Based on a review of the delegation order, the official said, the Criminal Division chief's principal deputy, his counselor, any of his special assistants, and a score of other aides were also among those who could be fired and replaced by Sampson and Goodling, and then subject to final approval by Gonzales.

"It would be an act of insanity and, frankly, implausible that the attorney general would grant authority to Kyle [Sampson] and Monica Goodling to make these decisions," the official said, "But it would be frightening if they were serving as proxies for the White House. You do not want to allow for the possible politicization of your Criminal Division like that."

Three of the fired U.S. attorneys have said that Republicans in Congress inappropriately approached them about politically sensitive investigations. Testimony by two of the U.S. attorneys, Sampson's testimony, and documents made public by the House and Senate Judiciary committees indicate that complaints by Republican lawmakers and White House officials may have played a role in the dismissal of two of the U.S. attorneys. Four of the federal prosecutors were involved in politically sensitive investigations at the time of their firings.

"What you have is U.S. attorneys saying they were being interfered with, people coming at them trying to influence them inappropriately, and then being fired," said the senior Justice Department official. "If we are learning now that the same people who are firing U.S. attorneys and replacing them with friendlier faces also were doing the same with their supervisors, with the people who ran the Criminal Division, then that is very serious."

Gonzales and Sampson both adamantly denied, in testimony before the Senate Judiciary Committee, that any U.S. attorneys were fired to interfere with politically sensitive investigations.

But David Iglesias, the fired U.S. attorney from New Mexico, testified before the Senate Judiciary Committee on March 6 that he felt improperly pressured by Republican members of Congress regarding a then-ongoing criminal investigation under his supervision. Iglesias testified that Rep. Heather Wilson, R-N.M., called him on October 16 to ask whether his office had returned sealed indictments against Democratic officeholders alleged to have taken kickbacks in a courthouse construction project. At the time, Wilson was locked in a tight race for re-election, and criminal charges against the Democrats would have aided her campaign. Wilson narrowly won re-election.

Ten days later after Wilson's call, Iglesias testified, he received a phone call from Sen. Pete Domenici, R-N.M., a political mentor to Wilson, also inquiring about possible pending indictments. Domenici asked him, "Are they going to be filed before November?" Iglesias testified. When Iglesias answered that no charges would be filed any time soon, Domenici responded, "I'm sorry to hear that," and the line went dead.

"I felt sick afterward," Iglesias testified, "I felt leaned on. I felt pressured to get these matters moving."

Domenici and Wilson have acknowledged making the calls but have said that they did not intend to influence Iglesias's handling of the kickback investigation.

Gonzales testified before the Senate Judiciary Committee that Domenici called him after the November 2006 election and complained to him that Iglesias hadn't aggressively pursued voter-fraud allegations against Democrats in New Mexico. Domenici also passed along similar complaints in conversations with President Bush and senior White House adviser Karl Rove, and the complaints were relayed to Gonzales.

Not long after, both Gonzales and Sampson have testified to the Senate Judiciary Committee, Iglesias's name was added, at the last minute, to the list of U.S. attorneys slated to be fired that was being compiled by Sampson and the White House. Asked during his Senate testimony whether Domenici's complaints played a role in Iglesias's firing, Sampson said that Deputy Attorney General McNulty commented to him, "Senator Domenici won't mind if he stays on the list."

A second ousted U.S. attorney, John McKay of Washington state, testified that the-then chief of staff to Rep. Doc Hastings, R-Wash., called him to inquire about potential voter-fraud charges against Democrats. Later, during an interview about a possible appointment as a federal judge, then-White House counsel Harriet Miers asked McKay why he had "mishandled" the charges concerning the governor's race, McKay testified.

Most recently, it was reported that a senior aide to Rep. Rick Renzi, R-Ariz., telephoned Arizona's then-U.S. Attorney Paul Charlton, to inquire about a criminal investigation into allegations that Renzi used his office to arrange a land deal that benefited a former business partner. The former partner then paid Renzi $200,000. After the FBI raided his wife's insurance business on April 19, and it was reported that Renzi himself was a target of the probe, Renzi temporarily stepped down from his seats on three House committees. Renzi has denied any wrongdoing, saying that the $200,000 payment from his former business partner was to settle a debt unrelated to the actions Renzi had taken to arrange the land deal. Renzi has also said that his aide called Charlton's office simply to inquire about whether Renzi was going to be criminally charged.

The Wall Street Journal (subscription) reported last week that prosecutors in Arizona charged that their superiors in Washington slowed their investigation and that the prosecutors suspected it was because the superiors wanted Renzi to win re-election. Conflicts between U.S. attorneys' offices and the Criminal Division typically stem from routine disagreements regarding the law and the strategy for handling an investigation.

But Charlton's firing, the delay in the Renzi investigation, and disclosures about the role of the White House in the firings of U.S. attorneys has created a climate where suspicions abound among career prosecutors, a senior Justice Department official said in an interview.

"Under ordinary circumstances, with something like the Renzi case," the official said, "everyone would assume that this was just an honest disagreement between a U.S. attorney and main Justice. But the presumption in the current environment is that everybody's motives are suspect-and for good reason. There really has to be a housecleaning and a coming clean to Congress, the public, but perhaps most of all, the rank-and-file line prosecutors."

Murray Waas

-- Click here for more coverage of the Justice Department from Murray Waas.

Students Heckle Gonzales at Harvard

What? The Reich arrested no one? Now that's news.
Related
Four students arrested for heckling FBI director
---
Sunday April 29, 2007 12:46 PM

CAMBRIDGE, Mass. (AP) - A small group of student protesters, including one wearing a black hood and an orange jumpsuit, heckled Attorney General Alberto Gonzales as he posed with old classmates Saturday during their 25-year Harvard Law School reunion.

``When the photographer was getting everybody set up and having people say 'cheese,' the protesters yelled: 'say torture, instead,' 'resign' and 'I don't recall,''' said Nate Ela, a protester and third-year student.

Law school spokesman Mike Armini said the impromptu protest was so small that some of those attending the photo shoot did not notice it.

Ela said the protesters followed Gonzales into the law school's library, chanting ``shame'' and ``resign,'' before the attorney general's security detail took him to his motorcade.

Gonzales was at the university to deliver a lunchtime speech, a visit that was unannounced to students. But word spread quickly after his motorcade and security detail were spotted.

``The departure was clearly undignified,'' said Thomas Becker, a second-year law student who wore the black hood and orange jumpsuit during the protest. ``He looked really annoyed.''

A Department of Justice spokesman did not immediately return a call seeking comment.

Gonzales is resisting pressure to resign as lawmakers question whether he could effectively run the Justice Department amid the controversy over the firings of eight prosecutors.

Monica Goodling Instructs DOJ Officials to Delete Documents

Friday, April 27, 2007

Another Friday, another document dump from the DOJ. I haven't had time to look through very many of the documents, but one of the first ones I came across was this one from Monica "I plead the Fifth" Goodling. Notice the instruction in boldface type (click on the image to zoom in):


















Yes, that's an instruction to delete documents. And notice the date: February 12, 2007. That's well after Congress began investigating this matter. I don't believe any subpoenas or document requests had yet been issued (someone please correct me if I'm wrong about that), but it was pretty clear by then that document requests were likely.

Let's review the timeline. On January 17, 2007, Senators Feinstein and Leahy grilled Alberto Gonzales on the recent spate of U.S. Attorney firings. On January 25, 2007, Senator Schumer announced that he was going to hold hearings on the firing of U.S. Attorneys. And on February 6, Schumer held the first set of hearings, in which Deputy Attorney General Paul McNulty testified that Bud Cummins was not asked to leave for "performance-related" reasons, but rather to make way for Karl Rove protege Tim Griffin. That damaging testimony helped propel this story to the front pages.

And two days later, on February 8, 2007, Senators Durbin, Schumer, Murray, and Reid sent a follow up letter to Alberto Gonzales asking all sorts of questions arising out of McNulty's testimony, including a number of questions about the replacement of Bud Cummins with Tim Griffin.

It is in this context that Monica Goodling, four days later, sends out the above-displayed email, which attaches updated talking points re: Griffin/Cummins and various other U.S. Attorney related issues and instructs the recipients to delete prior versions of the documents.

As a litigator, I can tell you, that's a real no-no. You never instruct people to delete documents that are relevant to a pending investigation. Never. That's true even when the investigating body hasn't yet got around to requesting those documents. It smacks of obstruction. Indeed, the Obstruction of Congress statute, 18 U.S.C § 1505, specifically prohibits any attempts to obstruct "the due and proper exercise of the power of inquiry under which any inquiry or investigation is being had by either House, or any committee of either House or any joint committee of the Congress." The penalty is up to 5 years in prison.

I'm not sure if 18 U.S.C § 1505 has been interpreted to apply to the destruction of documents that have not yet been formally requested--I suspect it hasn't--but it is, at the very least, incredibly dodgy to be instructing people to delete documents that relate to a pending Congressional inquiry. If an employee of a private entity were caught giving such an instruction after an investigation had been initiated, it would incur the everlasting wrath of the government agency or prosecutor's office conducting that investigation. It would be a real mess.

That's why the first piece of advice a private entity receives from its lawyers when it learns that it is being investigated is to issue a document preservation notice to all employees. The last thing you want is to have the government request a document and then learn that it was deleted or destroyed AFTER the investigation was initiated. Just ask the people who used to work for Arthur Anderson. The sad demise of that once proud firm is all the reminder you need that the Justice Department doesn't react too kindly to post-initiation-of-investigation destruction of evidence.

Which makes it all the more ironic that Monica Goodling, a high-ranking Justice Department official, is instructing other high-ranking Justice Department officials to delete documents that are relevant to an ongoing Congressional inquiry. No wonder she pled the Fifth.

DOJ Document Sets Released on 4-27-2007

Document dump - PDF

Justice Dept official resigns over investigation connected with Abramoff

Posted on Fri, Apr. 27, 2007
by Marisa Taylor and David Whitney McClatchy Newspapers WASHINGTON - A senior Justice Department official has resigned after coming under scrutiny in the Department’s expanding investigation of convicted super-lobbyist Jack Abramoff, according to a Justice Department official with knowledge of the case. Making the situation more awkward for the embattled Department, the official, Robert E. Coughlin II, was deputy chief of staff for the criminal division, which is overseeing the Department’s probe of Abramoff. He stepped down effective April 6 as investigators in Coughlin’s own division ratcheted up their investigation of lobbyist Kevin Ring, Coughlin’s long-time friend and a key associate of Abramoff. When contacted at his home in Washington, Coughlin said he resigned voluntarily because he was relocating to Texas. “I was not asked to resign,” he said in an interview with McClatchy Newspapers. “It’s important to me that it's made clear that I left voluntarily.” He said he couldn’t comment on the Abramoff investigation, nor on whether he has a job lined up in Texas. He referred all other questions to friend Michael Horowitz. Horowitz, a criminal defense attorney and former Justice Department official and public corruption prosecutor, did not respond to questions, including about whether he is representing Coughlin. Coughlin also would not say whether he had hired a lawyer. McClatchy’s source at the Justice Department asked not to be identified because of the sensitivity of the case. Coughlin appears to be the first Justice Department official to come under scrutiny in the wide-ranging probe that has implicated a veteran congressman, a deputy Cabinet secretary, a White House aide and eight others. Abramoff has pleaded guilty to three counts in the corruption probe and could face up to 11 years in prison. It was unclear whether Coughlin is a target in the investigation, which would mean he is under intense scrutiny, or whether he is a subject in the investigation, which would mean investigators have not yet determined whether he committed any wrongdoing. A Justice Department spokesman declined to respond to any questions about the Abramoff investigation because it is still ongoing. Spokesman Bryan Sierra, however, confirmed Coughlin had resigned. He also said Coughlin had recused himself from the Abramoff investigation. The disclosure, nevertheless, was another blow to a Justice Department already struggling to recover from the controversy over the firing of 8 U.S. Attorneys. Democrats and a number of Republicans have criticized Attorney General Alberto Gonzales for his handling of the ousters, which critics charge were politically motivated.

Abramoff Investigation Spreads To Ex-Justice Dept Criminal Division Lawyer

Ex-Justice Dept. Lawyer Under Scrutiny in Probe
Ties With Abramoff Associate in Question

By Susan Schmidt
Washington Post Staff Writer
Saturday, April 28, 2007; A06

A federal task force investigating the activities of disgraced lobbyist Jack Abramoff has in recent weeks been looking into whether one of Abramoff's colleagues improperly traded favors with a Justice Department lawyer, sources familiar with the Abramoff investigation said yesterday.

The lawyer, Robert E. Coughlin II, resigned on April 6 as deputy chief of staff in the Criminal Division, citing personal reasons, a department spokesman said.

"Bob gave a personal reason for his resignation," said spokesman Bryan Sierra. He stressed that Coughlin "had no involvement" in the department's investigation of Abramoff.

Coughlin had worked in the criminal division since 2005 but was recused from the Abramoff inquiry because of a longtime personal friendship with Kevin A. Ring, one of Abramoff's lobbying colleagues whose actions are under investigation, a law enforcement source said. Investigators are looking into dealings between the two in 2001 and 2002, when Coughlin worked in the Justice Department's Office of Legislative and Intergovernmental Affairs, the sources said.

Coughlin and Ring were friends on Capitol Hill in the 1990s when both worked as staffers to then-Sen. John D. Ashcroft (R-Mo.), who became attorney general in 2001.

Coughlin's resignation and the surfacing of his name in the Abramoff investigation were first reported yesterday by McClatchy Newspapers.

Investigators came across Coughlin's name while looking into whether Ring improperly sought or received favors for lobbying clients from people in government, the sources told The Washington Post.

Ring took Coughlin to sporting events with tickets provided by his lobbying firm, according to sources familiar with the inquiry.

The task force has tracked millions of dollars in meals, trips, tickets, gifts and campaign contributions that the Abramoff lobbying team lavished on lawmakers and staffers. The investigation has so far resulted in 11 convictions and guilty pleas from lobbyists, staffers, two administration officials and a congressman.

An attorney for Ring could not be reached for comment. Coughlin did not answer calls to his home yesterday, and a lawyer who is serving as his spokesman did not return phone calls seeking comment.

Coughlin is the second Justice Department official whose name has surfaced in the wide-ranging Abramoff investigation. Earlier this year, Sue Ellen Wooldridge, deputy assistant attorney general for environment and natural resources, abruptly resigned when her boyfriend -- now her husband -- was notified that he was a criminal target. J. Steven Griles, former deputy secretary of the Interior Department, has since pleaded guilty to lying to Congress about Abramoff.