Balkinization  

Monday, March 26, 2007

Who's "the Decider"?

Marty Lederman

The Attorney General is now in hot(ter) water because he assured the public two weeks ago that he had very little to do with choosing U.S. Attorneys to be dismissed, and now it turns out that just prior to the dismissals, he convened meetings devoted to that very subject.

It is, of course, troubling if the Attorney General was trying to hide the truth from Congress. But the alternative would be worse. The truth is probably somewhere in between -- or a few blocks down Pennsylvania Avenue, anyway.

As I explained last week, the White House is trying to make the case that the President had nothing to do with these dismissals -- that, in Tony Snow's words, "This is a decision that was made at the U.S. Department of Justice," and "The President has no recollection of this ever being raised with him."

This is, of course, nonsense. As the President himself stated, "the Justice Department made recommendations, which the White House accepted, that eight of the 93 would no longer serve." By law, the decision was the President's, and he (appropriately) exercised it, undoubtedly with the advice of his close advisers (which is the best-case scenario for what he meant when he said "the White House accepted").

The reason the White House wants to deny presidential involvement is to support its argument that congressional investigation into internal White House communications is simply irrelevant to the question of whether any laws or constitutional obligations were violated. (As I've noted previously, the most important limitation in the White House Counsel's offer is not that Rove, et al., would be testifying without oath, but that they would not answer any questions, nor provide any documents, concerning internal White House activities and communications.)

And so the White House endeavors to place the blame squarely on the sholders of the Attorney General. But it turns out he could not have done anything improper, either, because he delegated everything about the decision to others, too -- or so he said on March 13th: "So far as I knew, my chief of staff was involved in the process of determining who were the weak performers. . . . That is in essence what I knew about the process; was not involved in seeing any memos, was not involved in any discussions about what was going on. . . . Many decisions are delegated. . . . I never saw documents. We never had a discussion about where things stood. What I knew was that there was ongoing effort that was led by Mr. Sampson, vetted through the Department of Justice, to ascertain where we could make improvements in U.S. attorney performances around the country."

As we now know, this is unlikely to be entirely accurate. But if it were accurate, it would mean that the Attorney General delegated this very serious, unusual and sensitive function -- deciding to recommend that the President remove several U.S. Attorneys -- to an aide in his mid-30's who had virtually no experience or knowledge of institutional norms, and even less practical or political judgment, and that the Attorney General himself forwarded such recommendations on to the President without even bothering to check the evidence with respect to whether these U.S. Attorneys had done such a bad job in office as to justify the solemn step of firing them in midstream, i.e., without even knowing whether the removals would be justified or wise.

If this were the true story, it would demonstrate atrocious judgment on the part of the Attorney General, and would be much more troubling than the fact that he dissembled a bit in a press conference about the level of his own involvement.

We now know that it is not entirely true -- that Judge Gonzales convened at least one meeting shortly before the dismissals in which he was told of the plan. Presumably (at least one hopes), at that meeting he was given at least some indication about why these faithful public servants were being ignominiously dropped.

But I suspect there is at least some truth to his original claims of being mostly out of the loop. To be sure, Judge Gonzales probably did not inquire deeply into the details of the justifications for the removals. But it's also likely that he did not simply take Kyle Sampson's word for it -- something that would be virtually inexplicable.

The reason the Attorney General could be so hands-off about the entire mess was that the real decisionmakers -- the President's close aides, such as Karl Rove and Harriet Miers -- had already made their choices on who would be fired, and had "signed off" on DOJ's so-called "recommendations." The e-mail traffic I've seen shows that Sampson was taking his marching orders from Miers, her Deputy William Kelley, and Rove, who appear to have been orchestrating the affair from the outset. In a November 15 memo, for instance, Sampson urged Miers to reach out to Rove's office as a "pre-execution necessity I would recommend." The weeks went by, with Sampson waiting for the "green light" from the White House Counsel's office. On December 4, Kelley wrote to Sampson: "We're a go for the U.S. attorney plan. WHU leg (office of legislative affairs), political (office), and communications have signed off and acknowledged that we have to be committed to following through once the pressure comes."

Gonzales knew all of this, of course -- that this was a White House initiative that had been vetted carefully not only by his own Chief of Staff, but also by various components in the White House, who would recommend to the President that the removals be made. I should add that there is nothing wrong with this, and it's what one would expect, in any Administration, with respect to such an important exercise of the President's removal power. Indeed, the notion that this project would go forward in DOJ without White House leadership and guidance is virtually inconceivable.

What does this mean? Well, for one thing, it means that the current focus on the Attorney General is something of a distraction, at least insofar as Congress's objective is to determine whether anything unlawful or unconstitutional was involved in the U.S. Attorney dismissals. The real action was in the White House, and one cannot determine whether the removals were made for improper reasons unless one knows what Rove and Miers advised the President, and why they did so. But that's precisely the subject matter that Fred Fielding would put off-limits in his offer to allow questioning of those officials. [There's a great deal of chatter online, and from the likes of Charles Krauthammer, suggesting that these removals could not have been impermissible because the U.S. Attorneys serve at the President's pleasure. I have explained here why I think this is wrong -- why it is at least possible that certain criminal laws were violated or that the President and others acted in derogation of his constitutional obligation to faithfully execute the law. See also Josh Marshall's latest. I'm not saying that the removals were or were not unlawful or unconstitutonal -- merely that it's possible, and that the evidence adduced so far (and the absence of any coherent story about permissible reasons for the removals), leaves the question open.]

I should caution, in closing, that even if Congress were to receive full access to evidence from within the White House, Congress might not ever learn of what Rove and Miers actually said, or why they acted. They and their aides are very unlikely, in response to questioning, to expressly acknowledge that the U.S. Attorneys were fired for improper reasons (if that is in fact what happened); and it is entirely possible that there is no e-mail or other memorialized evidence explaining forthrightly why the decisions were made. (And if there are such smoking-gun documents, it is highly unlikely that the White House will ever disclose them, short of an order from the Supreme Court, which is itself a very uncertain prospect and would take at least a year.)

Comments:

The most recent disclosure of the meeting with Gonzales goes again to his credibility, an area where he does have serious problems in Congress. But it is both sad and significant, given Gonzales' record of dissembling on actual legal controversies such as domestic surveillance, that the underlying controvesy in which he dissembled was one of politics.

In particular, what he has been caught red-handed at is dissembling (lying, in the vernacular of Democrats; incompentence, in the vernacular of Republicans) on the political question of what to tell senators about firings and replacements. This -- not the theoretical but unproven allegations that the firings actually had a nexus to prosecutors' performance in actual corruption cases -- is what angered senators in both parties, who by tradition feel they get to share in dispensing the patronage of selecting USAs.

Kyle Sampson's emails nakedly showed a deliberate plan to mislead individual senators about this process, cynically pretending "good faith" (his quotes) to mask the administration's political actions.

Unfortunately, this attitude toward "good faith" also permeates the attitude of this president and this DOJ toward the law in general. Just as unfortunately, this substantive bad faith draws a weaker rebuke in Congress.
 

I agree with jao. Gonzales' apparent lying (not dissembling) has destroyed his credibility. As a righty blogger recently put it: "Doesn't Gonzales have some family obligations to attend to?" He needs to resign forthwith.

The Bushies are inept at political damage control. Either take the Reagan route and take responsibility for the firings (the course I suggested) or take the Clinton route and have everyone simultaneously suffer from memory failure.
 

"If this were the true story, it would demonstrate atrocious judgment on the part of the Attorney General, and would be much more troubling than the fact that he dissembled a bit in a press conference about the level of his own involvement."

WHAT????

"dissembled a BIT?"

He lied completely! He said he was not part of "any discussions".

And you think that the Attorney General obstructing justice is not worse than simple incompetence?

You really dropped the ball on this one Marty. I expect better analysis on this web site.
 

He needs to resign so we can get on to the "GAO holding political rallies" scandal. 8 years of oversight crammed into 2 is going to be difficult.
 

Sorry for the brain-fart: I meant GSA.
 

Bart wrote: "Either take the Reagan route and take responsibility for the firings (the course I suggested) or take the Clinton route and have everyone simultaneously suffer from memory failure."

I may be missing something - didn't reagan claim not to remember vital information when questioned during the Iran-Contra affair?
 

I think John DiIulio, the former head of Bush's Office of faith-based initiatives, really said it perfectly:

"What you got is everything, and I mean everything, being run by the political arm. It's the reign of the Mayberry Machiavellis."

Now we are starting to find out just how true that is.
 

bitswapper said...

Bart wrote: "Either take the Reagan route and take responsibility for the firings (the course I suggested) or take the Clinton route and have everyone simultaneously suffer from memory failure."

I may be missing something - didn't reagan claim not to remember vital information when questioned during the Iran-Contra affair?


Actually, the comparison which I was making was to Reagan's firing of the air traffic controllers. No political CYA spin. Reagan got in front of the nation and told everyone that he was doing the firing and why.

Your reference, I believe, was to Mr. Reagan's confusion at an interview after the Iran Contra story broke. I would suggest that this confusion arose from the onset of the early stages of Alzheimers and that most of this operation was intentionally kept from the President. An old OSS hand, Casey knew how to create plausible deniability with compartmentalized operations. Even in this case, when the President was fully apprised of the operation, he got on TV and took responsibility. Mr. Bush could take a page from Reagan here.
 

Iran-Contra is a combination of two separate scandals -- illegal sale of arms to Iran in exchange for hostages, and diversion of the proceeds to the Contras in an attempt to circumvent Congress's power of the purse.

I will concede it is possible that the diversion of the proceeds may have taken place on a dont ask-don't tell basis to maintain plausible deniability. (Whether this shows the Reagan Administration to have been a model of honesty is a different question). But I don't think there can be any denying that President Reagan approved the arms for hostages exchange, despite a law forbidding arms sales to Iran, and then lied about his motives and kept lying until the pretense could no longer be maintained.
 

Professor Lederman: I wonder if you'd care to comment on the legal authority for the House or Senate, under Congress's "inherent contempt" authority, to send the Sergeant-at-Arms (presumably accompanied by members of the Capitol Police force) to arrest and detain Administration officials (such as Karl Rove or Harriet Miers) if they refuse to appear in response to a Congressional subpoena ad testificandum, or if they fail to produce documents in response to a Congressional subpoena duces tecum?

Seems to me this would be a way to shortcut the "at least a year" that you suggest it would take to work its way through the federal courts -- i.e., the prospect of sitting shackled to a radiator in a sunless, asbestos-ridden room in the sub-basement of the United States Capitol and denied his daily morning breakfact of one dozen Krispy Kreme donuts might serve as a powerful inducement for Karl to be a little more cooperative.

And if he still proved intransigent, surely I can't be the only one who would find the irony of a Bush Administration official having to resort to a petition for a writ of habeas corpus for his freedom to be a thing of ineffable beauty...
 

"Bart" DePalma:

... or take the Clinton route and have everyone simultaneously suffer from memory failure.

You misspelled "Libby".

Cheers,
 

EL:

But I don't think there can be any denying that President Reagan approved the arms for hostages exchange...

Reagan admitted this and apologized.

...and then lied about his motives and kept lying until the pretense could no longer be maintained.

How do you know what his motives were and that he lied about them?

Trading arms (even the defective Army surplus we sent to Iran) for hostages was a bone headed idea. It undermined the no negotiations with terrorists stand which Reagan started and pretty much followed.

On the other hand, I thought and still do that Ollie North's idea that trading defective surplus to Iran for triple market value and then supplying the Nicarguan rebels was indeed a "neat idea" which screwed our enemies in Iran and Nicaragua in one fell swoop.
 

On the other hand, I thought and still do that Ollie North's idea that trading defective surplus to Iran for triple market value and then supplying the Nicarguan rebels was indeed a "neat idea" which screwed our enemies in Iran and Nicaragua in one fell swoop.

It was also illegal, both the arms sale and the diversion of the proceeds. And it was an attempt to get around what is supposed to be Congress's ultimate power, the power of the purse. You (and Yoo) always argue that Congress can always win a showdown with the executive because the power of the purse trumps all else; Congress can always defund an entire executive operation. Well, in Nicaragua Congress used its power of the purse to do just that, and you applaud the President for his cleverness in getting around it.

Perhaps I should take your assurance that the power of the purse is supreme with a grain of salt.
 

Oh, "Bart" probably thinks that Dubya could sell the White House to the Sultan of Brunei for a guest house if he thought he needed the money for his war on Terra-ism....

Cheers,
 

Enlightened Layperson said...

On the other hand, I thought and still do that Ollie North's idea that trading defective surplus to Iran for triple market value and then supplying the Nicarguan rebels was indeed a "neat idea" which screwed our enemies in Iran and Nicaragua in one fell swoop.

It was also illegal, both the arms sale and the diversion of the proceeds.


Really? The special prosecutor seems to have missed these violations of law.

And it was an attempt to get around what is supposed to be Congress's ultimate power, the power of the purse. You (and Yoo) always argue that Congress can always win a showdown with the executive because the power of the purse trumps all else; Congress can always defund an entire executive operation. Well, in Nicaragua Congress used its power of the purse to do just that, and you applaud the President for his cleverness in getting around it.

To start, the plan to fleece the Iranians and funnel the money to the Contras was Ollie North's. Reagan had no part in the operation.

Next, Congress did indeed defund the Contras. However, North did not use any Congressional funding in this operation. Instead, he sold old decommissioned TOW I missiles to raise the money. The Boland Amendment did not address this possibility.

As an aside, we occasionally practiced with the TOW I when I served with the 82d Airborne between 83 and 86. These missiles were almost universally unusable. They would either not fire or would spin off into the air. North well and truly screwed the Iranians by selling them this trash. To add insult to injury, North managed to convince the Iranians over a period of months to pay far more then the market value for workable TOW missiles. Like I posted, it was a neat idea.
 

Next, Congress did indeed defund the Contras. However, North did not use any Congressional funding in this operation. Instead, he sold old decommissioned TOW I missiles to raise the money. The Boland Amendment did not address this possibility.

As Bart would say ::sigh.::

To take an example of where this approach could lead us, you (and Yoo) have said FISA's warrant requirements are unconstitutional, but Congress can always stop warrantless wiretapping by defunding the NSA. Needless to say, the NSA has enough important and legitimate intelligence gathering functions that such an action is out of the question. But suppose Congress called your bluff and defunded the NSA. Suppose, then that a "rogue" operative in the Bush Administration found some other source of funding that kept the NSA alive without using any Congressional funds.

Would that also rate as a "neat idea"?
 

Bart,

Oh, and by the way, you are an advocate of the President, as the sole elective executive official, maintaining full control of the executive branch. How does Col. North undertaking so important an operation without consulting the President and Casey creating "compartmentalized operations" to keep the President out of the loop fit in here?
 

"Bart" DePalma just makes sh*te up if such lies will help his "case":

Instead, he sold old decommissioned TOW I missiles to raise the money.

They were Hawk missiles. And not "decommissioned". There's a lot more to Iran-Cntra than "Bart" will admit. There was a reason that Ollie and Fawn were having a shredding party. Scienter, as they say. Just the same kind of thing that's going to bite Gonzales in the ass. It's the coverup. Why? Because the coverup shows you knew you were a crook.

Cheers,
 

"Bart" DePalma:

As an aside, we occasionally practiced with the TOW I when I served with the 82d Airborne between 83 and 86. These missiles were almost universally unusable. They would either not fire or would spin off into the air. North well and truly screwed the Iranians by selling them this trash. To add insult to injury, North managed to convince the Iranians over a period of months to pay far more then the market value for workable TOW missiles. Like I posted, it was a neat idea.....

Well ... maybe it would have been (in your eyes at least) ... if it were TRUE!

FWIW, the TOW missiles to Iran came from Israel ... under the tacit agreement that we'd replenish Israel's supply of TOWs. Are you suggesting, dear "Bart", that Reagan was busy screwing the Israelis?!?!?

Cheers,
 

"enlightened layperson"

Oh, and by the way, you are an advocate of the President, as the sole elective executive official, maintaining full control of the executive branch. How does Col. North undertaking so important an operation without consulting the President and Casey creating "compartmentalized operations" to keep the President out of the loop fit in here?

One of the problmes with selling the Hawk missiles to Iran was that such sales needed a written presidential authorisation beforehand. They realised this afterwards and then got the "paperwork" done "retroactively", in violation of the law. Poindexter destroyed the document later to avoid embarrassment. See above link.

Cheers,
 

Arne,

I was referring to the diversion of the proceeds to the Contras.
 

Enlightened Layperson:

I was referring to the diversion of the proceeds to the Contras.

Well, that too.

Cheers,
 

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