Saturday, March 01, 2008


Marty Lederman

Virtually every newspaper and wire service has a story today about Attorney General Mukasey's letter to Speaker Pelosi yesterday, in which he refuses to permit the U.S. Attorney to refer the Miers and Bolten contempt citations to a federal grand jury. And yet, as far as I can tell, none of the media sources, nor any of the obvious web sites, contains a link to the letter itself. It's not posted on the DOJ website, nor on the Speaker's web sites, nor on the House Judiciary Committee site. [UPDATE: The House Judiciary Committee graciously provided the letter to me on March 3d. I discuss it here.]

What's up with that? One would have thought that, by now, it would be pretty much de rigueur for web stories to link to the documents that are the subject of their reports. I suspect that the reason this isn't the regular practice has something to do with the notion that if a newspaper gives its readers the actual documents in question, there will be less reason for the readers to rely exclusively on the paper's own account of the news. Still, in a link-crazy culture, it remains surprising that none of the major news outlets or web sites has seen fit to provide the letter.


I looked for it too and couldn't find it. One would also think that both DOJ and the Speaker would have posted it.

I think this site has a transcript of the letter you guys are talking about.

thanks, cflb, but we're looking not for Pelosi's letter, but for Mukasey's letter in response to Pelosi. I didn't see it there.

apparently it was received only late friday.

i looked too and couldn't find it on Pelosi's site, though her letter was there, nor on the DOJ site.

i did find this from the UPI from Mukasey concerning what was in his letter.

[The] Attorney General also justified the President's decision saying it has legal basis.

"These directives were based on legal opinions from the Department of Justice advising that the assertions of privilege and immunity were legally proper," Mukasey said, according to United Press International

Mukasey also cited in his letter a-1984 justice opinion stating, 'that the contempt of Congress statute was not intended to apply and could not constitutionally be applied to an executive branch official who asserts the president's claim of executive privilege."

i mean it almost goes without saying that the news was announced late friday and release of the letter delayed to keep the issue from building steam in the blogosphere over the weekend.

This is the same information as the commenter, above, adding links:

UPI published an unbylined article Friday evening which includes excerpts the news services are publishing:
Citing a 1984 department opinion, Mukasey said "the Department of Justice's longstanding position taken during administrations of both parties is 'that the contempt of Congress statute was not intended to apply and could not constitutionally be applied to an executive branch official who asserts the president's claim of executive privilege.'"

Mukasey said the department "has determined that the non-compliance by Mr. Bolten and Ms. Miers ... did not constitute a crime" and would not bring the contempt citations before a grand jury or take any other steps to prosecute Bolten or Miers.

AP's Laurie Kellman similarly has a few excerpts published yesterday.

Yet another source seems to paraphrase a little more closely, but only in a fragmentary way:
Mukasey also cited in his letter a-1984 justice opinion stating, 'that the contempt of Congress statute was not intended to apply and could not constitutionally be applied to an executive branch official who asserts the president's claim of executive privilege."

But ML is right, evidently: no copy of the letter which the Speaker received is public yet.

I sent an e-mail to the Speaker, asking them to post the letter.

I know I'm not a great law perfesser from a 60 grand a year law school but the obvious circle jerk that keeps going around and coming around seems so glaring here that it's amazing that isn't the key point of focus. Here we have the supposed "left" leaning San Francisco Democrat (sic) Speaker of the House of Representatives quoting a wire service article about a letter she supposedly received from the current Attorney General. She got the letter but she's quoting a reporter on the letter. Friday release is the Republican game but the Pelosi circle jerk is a Democrat return and we the people are the ball.

Do a google search on some of the quotes from the Harry Potter cloaked letter and you'll see that the exact same quotes were used months ago.

President Bush Tells Congress, Because I Said So: Ann Woolner
Tuesday, July 24, 2007
By Ann Woolner Opinion [dead link]

It isn't even a case of WHY???!!! the Democrats have waited so long to try to implement their subpoenas. That seems much more timed to fail but appear to have represented a fight of some sorts, gallantly losing in the end. "Inherent contempt," which doesn't require the executive office to effect its mandate isn't mentioned, much less considered. That might actually force the situation rather than be a grandiose failure. But forcing the situation is the last things these Democrats want.

Really now! Let's have another series of posts on how the U.S. Constitution has failed the people. It's amazing to me that no one has pointed out that the problem with the U.S. Constitution is that it's just a piece of paper and doesn't have extending electrodes wired into the asses of the political leaders to get them to actually do something other than stage bullshit photo-ops. Chuck Schumer could certainly use a few high voltage electrodes up his ass. I say that with the kindest of intentions and certainly not as a torture proposal. It should be a job requirement.

Dick Cheney and George W. Bush are not sophisticated legal debaters. They're dark alley thugs. It's "you and what army" logic. I've posted this long ago and it's still starkly, glaringly obvious. They have control of the actual army and they have control of the national policing apparatus. Any weaknesses in that control are quickly removed, whether it's the generals that we should all listen to and STFU or the great legal minds that come up with the likes of the "torture memos." If they don't follow the route of enabling and legitimizing thugs (and "thugs' seems a compliment considering the war criminal behavior) they're gonzo. The great champions of the people, like Goldstein and Comey and even Fitzgerald, have done nothing to stop the relentless march of dollars and death towards fascism. They've merely covered their asses in the very unlikely case that the shit might some day hit the fan. But let's face it. They haven't defended the nation and its laws and its people though they may have posted here as if they have.

What does it matter what the minutiae of the letter is? Karl Rove said you people would endlessly debate the details of his and his henchmen's actions and he was right. He knows your kind. He's seen the tea and crumpets discussions while he was likely planning planting pedophilia stories about political opponents. These people ream the nation while you people consider the surface texture of the toilet bowl plunger handle.

Electrodes! I say the constitution needs to have articles of electrodes!

Ugh! I wish I could say I feel better. Where's the Tylenol? Can't take aspirin. Carry on. I'm sure there's some gem of a phrase of great concern in Mukasey's letter that should warrant a couple of dozen posts here.

I'd like a link to that 1984 opinion too, as well as independent descriptions of the fact pattern and procedural stance associated with the opinion.
Some of the history is in a 2001 article by David Neiwert, "The first Ted Olson scandal.

I posted and discussed the 1984 OLC Opinion here:

The Unitary Executive theory is offered far too often in arguments over issues to which it does not apply, However, while I doubt Mukasey used this term, this is precisely the kind of congressional overreach to which the Unitary Executive theory was meant to apply.

Under the UE theory, Congress does not have the power to deputize DOJ to prosecute the President on its behalf. In other words, the legislature cannot force a unified executive to prosecute itself.

After this predictable rebuff, Congress is finally getting around to what it should have done from the outset - bring suit in court. Of course, this has nothing at all to do with the law and everything with motivating the Dem base for the elections. Any doubt about this was dispelled when the Dems got on record wanting this law suit resolved before November.

Actually, doubt that the dispute is politically motivated was raised, not dispelled by the comments about wanting it settled by November. The last thing you want, when running on an issue, is to have the issue resolved before the election.


I did not say that Dems were acting wisely in this regard, merely that they are acting politically.

I have seen very little wisdom out of this last Congress, which has managed the neat trick of alienating half of its own party as well as everyone else.


So, if I interpret your comment correctly, it's your opinion that, when the Democrats do something that appears not politically motivated, then they're "not wise", while, if they do anything else, it's automatically political.

How convenient for you that this automatically means they're either stupid, or dishonest, or both.

I'm continually amazed by the certainty with which you deliver these opinions. I've heard the Pope deliver pronouncements with more nuance than you do, and on matters on which he could be considered expert. I don't believe in telepathy, and long-range telepathy is the only way you could really be sure of that which you proclaim.

Frankly, my own opinion is that you don't have the chops for your opinion on the wisdom of Congress to carry any weight.

I apologize for going slightly off topic, but I thought this might be of interest to Marty and others while we are discussing the political wars between the Dem Congress and Mr. Bush.

It appears that the House Dem Leadership is going to cave and offer the Senate FISA reform bill in two parts so Dem members on the left can vote to gut FISA while also voting against telecom immunity in an effort to satisfy the base and everyone else. More likely, Pelosi and Reyes ham handed mishandling of this issue will alienate both the base and everyone else.

whatever it takes to re-establish the rule of law Bart, whatever!

another off-topic comment. Check out this layman Canadian view of US justice under Mukasey - the Globe and Mail editorial.

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