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Tuesday, June 13, 2006

Wendy J. Keefer Taking Lessons From Adam J. White?

Update 14 Jul 2006:

Jefferson is appealing. The court, which issued the warrant says it's Constitutional -- Wendy, that's kind of like self-adjudicating, something which violates Federalist 78.

No reasonable court would [a] issue a warrant; but then [b] turn around and say, "The warrant this court issued was not Constitutional." To do so would be to invalidate the power of the court: "The warrant may be unconstitutional, but we have to be consistent, and affirm what we previously did." That's not a credible conclusion, merely an assertion.

The core problem with Wendy's argument is that she appears to assert, the basis of an implicit assumption of guilt, as to whether the raid was or was not constitutional on the basis of the warrant. We do not dispute the facts that there have been unsuccessful effort to gather evidence. The issue isn't the warrant, but whether the means to gather than evidence adequately considered the separation of powers before and during the execution of that warrant.

[ Ref ]

Whether evidence has or has not been sealed; or has not has not been screened by a non-prosecution team does little to address the Constitutional issues of privilege, the Constitutional harm. Whether someone does or does not suffer a personal harm is not credibly linked to the institutional harm; that Jefferson may or may not be able to show a personal injury, does nothing to defend the Congressional privilege which has been violated, and not sufficiently respected nor given due deference. Whether the evidence is or is not used is irrelevant to the violation of the Constitutional privileges afforded to Congress; this lack of deference for the larger Constitutional issues is at the heart of the fisa-NSA violations.

If the government had spent 16 months gathering evidence, there's little to explain why another day, in carefully respecting the Congressional privilege, would have made a difference to the seizure. Whether Jefferson appeals or admits guilt is irrelevant to the institution of Congress; Congress is not bound to expel a member, even if they are indicted. They may choose to do so or ignore that conduct, just as the Congress chooses to do nothing about the President's illegal war of aggression and NSA0-fisa violations.

It is a false assertion of "public interest" to argue that We the People are more interested in prosecuting crimes than we are in protecting the Separation of Powers. The choice is not either or, but a middle ground to accomplish both without compromising either. DoJ chose to assert only one prong of the public interest, and in doing so has materially undermined confidence in the second. If crime was truly a "public interest," DoJ cannot explain why it thwarts DoJ OPR from reviewing the issues with the NSA violations. Thus, on this count, we conclude DoJ is making frivolous claims of "public interest" without a fair showing that that interest is respected within DoJ, nor universally asserted within the real of DoJ responsibility.

As with the pre-Iraq planning, the time to have considered the legal issues was before the action, not after being challenged for the violation of the larger Constitutional power. This argument alone demonstrates DoJ fails to comprehend the real attack on the public interest: The repeated disregard for requirements within the Constitution to ensure the powers remain separate, not subject to the imbalanced whim of some, while at other times creating impervious walls to accountability for others.

If the public is asserted to enjoy a "benefit" of broad discovery, with the attached constitutional violations, then this standard should be applies first to the Executive on the matters of NSA-fisa violations. Where he does not choose to assent to that review, then no one else should be required to meet a similar standard. DoJ's problem is that, as with all things, it asserts a principle that, upon close examination, is wholly at odds with DoJ-White House internal practices. Where DoJ may assert a "public interest" in one action, their internal workings destroy confidence that assertion is anything but dubious.

* * *


Michael K. Atkinson 430517
Timothy E. Curley 470450

John P. Elwood 452726
Steven A. Engel 484789
Tracy L. Hilmer 421219
Roy W. McLeese III 416667
Luke A. Sobota 477395
Jeffrey P. Singdahlsen 440471
Dodge Wells 425194
Brian M. Willen 490471
Kenneth L. Wainstein 451058

Other Ref

Cynthia L. Alexander
John Charles Cruden
Timothy Edward Curley
Tracy Lyle Hilmer
J. Christopher Kohn
John R. Kresse
Jonathan Brian New
Terry M. Petrie
Michael John Quinn
Phillip Martin Seligman
John Joseph Siemietkowski
Sandra Peavler Spooner
John Thomas Stemplewicz
John O'Connor john.o'connor2
Sandra Spooner
James St.John
Gino D. Vissicchio
John Warshawsky
Dodge Wells

* * *

Rather than adequately include within the seizure process a recognition of that privilege, the fbi raid failed to respect both in form and function the precedents.

Nothing in this note should be construed as an affirmative opinion or statement as to the legality or illegality of DoJ Staff actions. Rather, the point is more subtle: The work product below, as a proxy of DoJ staff work, does not inspire confidence that the argument supports the conclusion. We are concerned not merely that the law is or isn't enforced, but that the Constitutional separation of powers and privileges are appropriately respected.

Nothing says that a Congressman's right to a fair trial should or should not be trumped by a broader claim of immunity; rather, the issue is whether that immunity should be ignored simply because the pattern of conduct raises serious doubts about one's innocence. If that is the standard -- that one's conduct should be the basis to ignore Constitutional rights, powers, and privileges -- then a balanced application should strip the legal community and Executive branch employees of any expectation that the Constitutional rights, privileges, and powers are applicable.

If you argue that the process can move without regard to the nuances, then that rule should apply to all and no attorney should have any expectation their personal papers will be respected. Unfortunately, that standard is not consistent with the rules of evidence.

You cannot have it both ways, even though you may have at one time worked in DoJ where double standards was asserted as a right, but publicly rejected in Hamdan There is a difference bewteen someone being charged with a crime, and their conduct being called stupid. Intelligent people do commit crimes; stupid conduct and poor arguments is an indicator of recklessness; and reckless may or may not be criminal.

* * *

Original Blog

Last week it was the issue of Executive Privilege; this week it's Congressional.

[ Before continuing, quickly note how this information fits in with the Constellation Project. ]

Allegation: Keefer's conduct involves alleged dishonesty, fraud, deceit or misrepresentation in re matters she allegedly knew or should have known to be contrary to her stated legal positions. [ Ref ]

Complaints in re Keefer.

Notice the common pattern: Selectively ignoring the case law.

This one has an interesting comment:

Despite the facial absurdity of such an argument, those publicly condemning the search cloaked themselves in it.

Small problem: The point fails to capture the Full arguments.

Maybe Adam has quite a following.

* * *

Keefer asserts below that the warrants were "good enough." Nope, but if she wants that, we can reciprocate:

In order to avoid impinging on valid attorney-client relationships, prosecutors are expected to take the least intrusive approach consistent with vigorous and effective law enforcement when evidence is sought from an attorney actively engaged in the practice of law. Click

Normally, the "lest intrusive" method is used to search an attorney's desk. Since Keefer doesn't want that for Congress, why should we recognize that for her?

Here are other separatoin of powers rules which Keefer apparently didn't bother to read while she was working in DoJ.

* * *

Note she's with Bancroft Associates, same place where Patriot Act-author Viet Dinh is located.

Keefer in 2002 was Chief of DoJ's Legal Policy Branch.

As Chief of Staff, Keefer will manage daily office operations and continue to serve as counsel to Dinh.

"This new designation reflects Wendy's outstanding work and dedication over the past year," said Dinh. "She has met each new challenge and responsibility with excellence, and her service has earned her this promotion.

Dinh, did she make sweeping statements like Addington, and ignore the case law like Adam?

* * *

Burden of Proof: On Wendy

Note: "Not admitted in District of Columbia", where Congress is located.

  • How does someone like this get promoted to DoJ Chief Legal Counsel, located in DC?

  • What basis is there to assert they have a credible position on the Congressional issues, that have to appear before the DC Court?

  • What kind of non-sense might we expect to find in DoJ in re this "inability to appear before the DC court"?

  • What's the point of calling yourself a "litigator" if, as some might presume, a "litigator" appears to argue a case; but you can't (apparently) be publicly examined in a public court as to the merits or flaws with your legal arguments in re the Congressional Immunity-Privilege arguments you're giving?

  • What's the basis for Jurist to permit you to be called a "guest writer" when you appear to have no credentials, DC litigation history, or other journal writings to back up what you're saying?

    Answer: Member, The Federalist Society, which John Bolton drooled-spoke-blabbered before in 2003, who read the NSA intercepts, which POTUS says, "We can't talk about. Only John Bolton can."

    Wow, so now we know where things are at: A group of people who justify using "whatever" to justify perma-war, violations of the law, and unconstitutional conduct.

    Wendy, I don't see the following in your background:

  • Military Law: Whether it's OK to invade a sovereign nation without an imminent threat;

  • Geneva Conventions: Whether Article 83 liabilities on attorneys can be invoked when they fail to ensure Article 3 provisions (protecting belligerent) is protected;

  • Basis for violating Geneva using Rendition

  • Basis to abrogate a US Treaty, or US Constitution in re warranties surveillance

    Overall, perhaps we should be surprised why this nation has been chastised by the EU over Rendition: The people in the DoJ who were working there (apparently) had no clue about treaty obligations, laws of war, of the US Constitutional protections that apply domestically during wartime.

    * * *

    If you had some federal cases related to the Congressional privilege, we might be able to have a discussion on that. For example, take a look at her credentials: The only thing that's close to "Congressional privilege" is professional malpractice. Yawn.

    For the most part, your reported case history and publicized writings are disconnected from that issue. Even, if we make an absurd leap from state to federal, the apparent legal argument you've made at the state level compare with the equally dubious assertions in your recent Jurist Article: You fail to back up your claims with evidence.

    Her only reported journals report to South Carolina elections. What is someone in the business and commercial law practice area doing commenting on issues of Congressional privilege?

    Cases [Issues]

    397 F. Supp. 2d 706 [Land surveyor: "Plaintiff cannot prove its case"]

    366 F. Supp. 2d 338 [osteopathic physicians, restraint of trade]

    341 S.C. 248 [Auto accident]

    Wendy -- how is this relevant to the 2006 issues in re DoJ, Congress: Were the "big scary terrorists" driving automobiles? Maybe they were driving them in Iraq, but that wasn't connected with 9-11, remember?

    362 S.C. 456 [Amicus: "Concerned Citizens for Responsible Government in Hampton County and South Carolina Defense Trial Attorneys Association"]

    365 S.C. 565 [LeafGuard USA, Inc, leaves and debris protection for rooftop drains; "LeafGuard USA believes the Machine's current value to be approximately $ 10,000, but offers no evidence supporting this assertion"]

    Wow, no wonder those DoJ OPR investigations into the NSA issue are having a problem: POTUS doesn't use LeafGurad to keep the non-sense out of the legal pipes.

    Seeing a trend here, assertions/contentions without evidence to back up claims, Wendy. What's up with that?

    337 S.C. 304 ["A case becomes moot when judgment, if rendered, will have no practical effect upon existing controversy"]

    Wendy, does this mean if your former client, in this case the US Government, could delay getting the issue to court, and selectively address only those issues which the public discovers, no court will have any power to impose sanctions on the government entity? Stunning. Please distinguish as to why this is not a cover-up, obstruction of justice, and otherwise frivolous action by legal counsel to delay what should otherwise be an immediate prohibition against unconstitutional conduct.

    339 S.C. 406 [City of Folly Beach, "The burden of establishing a limitation upon liability under the Tort Claims Act is upon the governmental entity asserting it as an affirmative defense"; Steinke: "when an exception containing the gross negligence standard applies, that same standard will be read into any other applicable exception"]

    Wendy, so (absurdly) applying/extrapolating this "state rule" to the Federal/Congressional privilege, why are you (apparently) asserting there are no exceptions to your contention, and that there's no bonafide Constitutional issue? Your argument fails.

    * * *

    Contesting State Elections: Lessons for State Disbarment Efforts

    The public at large can contest S.C. Elections; let's publicly contest attorneys who arguably provide allegedly reckless legal advice which the government then uses to justify acts of torture, abuse, criminal conduct, illegal abrogation of treaties, illegal wars, and other violations of the Constitution.

    We can contest an election.

    ("The ability to contest elections is a privilege bestowed by state law. There is no common law or federal constitutional right to be afforded a hearing in an election contest.").[ Keffer, 12 S. Carolina Lawyer 22

    Contests to the election for the office of Governor fall within the jurisdiction of yet another body [Keefer, 12 S. Carolina Lawyer 22]

    * * *

    Let's apply that standard to attorneys: Encourage non-clients to have a federal right, under the US Constitution, to contest the legal standing of attorneys in any state or federal court. This would answer to the affirmative:

  • Should the bar results be invalidated?

  • Should their state license be revoked?

  • Should the majority of Americans have a vote on whether attorneys can or cannot hold their bar license?

  • When at attorney (allegedly linked with reckless, illegal, and otherwise absurd legal arguments that fails to recognize the law of the land and precedents) be "voted out of office"?

  • Attorneys as "officers of the court". Should they be subject to some sort of sanction such as an impeachment proceeding?

  • What happens when the state-level regulatory system fails, and the national Constitution is put at risk by defective, arguably illegal legal opinions from arguably stupid, lazy, and incompetent legal counsel?

  • If a "bar license" is considered a "valuable" item or tangible right that cannot be lightly taken away, should attorneys who argue that other "rights" be taken away (property, liberty, freedom from abuse) be subject to the same treatment they say is "OK" for others to ensure?

    * * *

    How do we get attorneys to take their oath of office to the US Constitution seriously?

    New Rules

    Attorneys who advocate in legal opinions or other writings that certain legal privileges do not exist or should not be recognized, should have a similar privilege denied to them and their client.

    Attorneys who advocate others be deprived of life, liberty, and property without due process should be similarly denied that right to due process.

    Attorneys who issue arguably reckless, defective, and absurd legal statements in court or for public consumption should have those writings factor into decisions whether they can or cannot maintain bar standing.

    Attorneys who offer work products, legal opinions, or other writings that argue for deprivation of rights, abuse of power, or abrogation of clearly promulgated Constitution, treaties, and statutes should be denied personal immunity for the acts of agents who rely on that legal opinion.

    Send in your votes to add attorney names to the disbarment-project lists:

  • Addington

  • Gonzalez

  • Yoo

  • White

  • * * *

    The House Judiciary Committee, after the RNC loses power, will need to take some time reviewing the legal non-sense out of DoJ. We may have some answers as to why the US has effectively abrogated the US Constitution: They had some apparently stupid people making legal arguments which never stood the rigorous scrutiny of the adversarial judicial system.

    Why are we "fighting for whatever we are" in Iraq? Apparently to give women the power to enter the legal profession and arguably provide allegedly reckless, boneheaded legal opinions.

    Democracy couldn't have come at a better time for the Iraqis, on the verge of a civil war. Where the law fails them, they can turn to a trusty insurgent to drive home the point. Kind of like what JTTF does when it can't find evidence. "Hay, we just know they're guilty."

    Whatever, Wendy.

    Wendy, other than the fact that you don't appear qualified to make any informed comment on the issue, your actual words fail to justify confidence in what you're saying.

    Nothing you've presented addresses the legal arguments well articulated. If you have a bonafide gripe with the privileges afforded to Congress (that were not recognized), why should any attorney have anything to say when DoJ violates attorney-client privilege with the illegal NSA monitoring?

    It's one thing to argue, "We're doing this for the war effort"; but what’s the point of "fighting a war" when the only thing we have left are stupid attorneys who refuse to assert the rule of law, and provide no confidence they're serious about their 5 USC 3331 obligations to the US Constitution. Not impressed.

    * * *

    Deconstructing Keefer's Legal Points

    Do we dare bother?

    * * *

    Note: This is being deconstructed as we speak

    Let’s rename this: Searching for Intelligent life in the Federalist Society: Are they really this stupid?

    * * *

    Searching the Mind of DoJ Personnel: Do they have a clue about the laws, or were they just appointed because they were morons?

    Original title: Searching Congress: A Fabricated Constitutional Crisis


    JURIST Special Guest Columnist Wendy J. Keefer, former senior counsel and chief of staff in the US Department of Justice Office of Legal Policy and now with Bancroft Associates in Washington DC, says that claims of a constitutional crisis arising out the recent FBI search of the Capitol Hill office of Rep. William J. Jefferson (D-LA) are exaggerated...


    Had the issues been discussed with Congress, this issue would not have erupted “in the wake” of the raid, but before.

    Following an FBI search of Congressman William J. Jefferson’s Capitol Hill office in connection with an ongoing criminal bribery investigation, a firestorm has ignited in which members of Congress are now claiming violations of the Speech and Debate Clause and the separation of powers principles of the US Constitution.

    Given DoJ doesn’t publicly comment on these matters, or the nature of the data seizure, perhaps you could share with us how you know for a fact that the conduct is not alleged, but actually related to an investigation related solely to bribery?

    Should have used the word, “Ongoing criminal bribery investigation.” Or, are you saying that this is a fact, and the failure to use “alleged” is not an issue subject to a tort of defamation?


    * * *

    But is this really a constitutional crisis?

    * * *

    Former Members of DoJ must not be permitted to pervert the Constitution in to a right to “do whatever we want.”

    Members of Congress must not be permitted to pervert the Constitution into a right to conceal evidence of criminal activity in their congressional offices with impunity.

    Former DoJ personnel should not be able to invoke a “standard of the 4th Amendment” (as a basis for action), while they have effectively ignored that protection on matters related to the illegal NSA domestic surveillance activities.

    * * *

    This is an assertion without credible citation of case law:

    The search at issue was conducted in compliance with the Constitution, including the constitutional provisions invoked by critics.

    Your argument is merely an assertion without any justification. You could be right, then again the detainees at Guantanamo could be innocent, but “we’ll just assume they’re guilty and lock them up.”

    * * *

    What Congress may assert in the DC court is understandably mysterious in that you’re not licensed to practice law in the DC Circuit:

    Where the charge being investigated is clearly a felony and the immunity provided in the Speech and Debate Clause is merely from arrest and questioning under certain circumstances, the claimed applicability of this provision is mysterious:

    * * *

    You can’t credibly invoke the constitution as to “what it allows” when you’ve effectively abrogated the Constitution. Can’t have it both ways, Wendy.

    They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

    * * *

    This is an example of shifting the argument from privilege to “something else.”

    U.S. Const. art. I, § 6. In the case of Congressman Jefferson, no arrest occurred.

    They did this during the debates on the NSA raids into our private records: “We never actually physically searched their papers, we just did data mining; and then when we found something, we sent that as an investigative lead.”

    * * *

    Apply an irrelevant standard, and then say it doesn’t apply:

    Even if it had, the arrest would have been for a felony and thus not subject to this provision.

    Wow, you did learn well from Adam.

    * * *

    “Only” – you and Adam know about this.

    The only possible claim of applicability would relate to whether somehow the search of a congressional office constitutes questioning of the member on a speech or debate.

  • What’s the basis for your contention?

  • Where’s you evidence?

  • Which case are you relying on?

  • Which DC Court would agree with you?

  • How do you account for the other views which contradict your contention?

    No answers, just assertion, “Hay, we know they’re guilty, so throw away the Constitution, and we’ll do what we want.”

    If we know that an attorney is stupid, should we just disbar them, or should we have due process which recognizes their inherent powers to remain immune to accountability for arguably stupid memoranda (and results) while they worked at DoJ?

    * * *

    No basis to credibly assert it is “absurd”

    Despite the facial absurdity of such an argument, those publicly condemning the search cloaked themselves in it.

  • Where’s you case law?

  • What are you giving us to back up your claim?

  • This is your argument – you’re aren’t proving anything, just making more Gonzalez-Addington-like assertions, “Hay, we should be able to say this, so it must be true.”

    * * *

    If it’s “not surprising” that this happened, why did you wait until it happened to say this? You “should have” said it before it happened.

    Not surprisingly, most of the voices were those of current or former congressmen.

    You fail to capture the legal arguments of the legal scholars, you know: The ones who like to write about the law, and discuss things other than the S.C. elections.

    * * *

    Introduce an irrelevant standard, and then say, “It’s unrelated.”

    But, the investigation and resulting search warrant have no connection to any legislative process.

    Yes, Adam and Wendy appear to have studied the same: “How to make stupid arguments.”

    * * *

    You’re missing the point: Congressional power is not eh same as a “routine” warrant.

    The search warrant was instead part of a routine criminal investigation.

    Check your first year Constitutional Law Notes again. Hay, how did you pass the bar with this kind of non-sense?

    * * *

    On May 18, a special agent with the FBI applied to a court for a search warrant of Jefferson’s office.

    So, DoJ, despite having time to surf the internet making updates to personal webpages, has time to put together a warrant.

    The warrant application was supported by an 83 page affidavit that detailed, among other things, taped conversations between a confidential informant and Congressman Jefferson.

    What’s the excuse for DoJ not to have gone to the FISA court?

    * * *

    The FBI agent’s name is Thibault, who used to work for the Air Force OSI. The Air Force is not concerned with Congress; Congress is the enemy of DoD. The OSI works for the IG (who can only be removed by the President), not Congress. OSI Agents are political animals, loyal to their service, and will assent to legal non-sense "in the interests of the service."

    The special agent making the application has been employed in this capacity since 1996 – hardly a rogue politico seeking to usurp congressional powers.

    Chances are fairly high that an OSI-FBI agent has no clue about Congressional powers. Indeed, someone had enough “push” to trigger Bush to say (illegally), “We should seal this.”

    * * *

    This is just DoJ Cheerleading:

    And the warrant application was, as it should be, pursuant to the appropriate constitutional provision, reviewed by a court to determine if probable cause existed for issuance of the warrant.

    Sounds really good, but what’s Gonzalez doing with the NSA? Opposite.

    * * *

    In fact, special precautions were taken precisely because a congressman and his office were at issue.

    Sure: “If you don’t open the door, we’re going to pick it.” That’s not a respect for the Constitution or Congressional privileges.

    * * *

    This is like the NSA-DoJ internal review:

    Agents not before involved in the investigation conducted the search. A “filter team,” including lawyers, reviewed the documents retrieved to identify any truly privileged – legislative – materials.

    DoJ personnel weren’t in a position to know which documents were or weren’t privileged – in order to “determine” and “screen” they had to violate the privilege.

    * * *

    This is meaningless:

    Even under these circumstances, where the Speech and Debate Clause provides no protection from criminal investigation, Congress – namely, Congressman Jefferson – were provided additional, unnecessary safeguards.

    We’re not talking about a Congressman; we’re talking about institutional privilege. There’s a difference.

    * * *

    This is from the same crew that says the Article 1 Section 8 “necessary and proper”-clause should be a power that the Executive can invoke:
    Invoking the Speech and Debate Clause under these circumstances runs afoul of the intent of that clause.

    Complete an utter non-sense. All of a sudden, Wend is concerned about “intent”. Ha! The Constitution intends for the Constitution to be protected, not explained away by DoJ attorneys who want to create legal fiction to ignore it or say it doesn’t apply on matters related to the illegal domestic NSA activity.

    * * *

    No citation:

    The protection afforded is for acts done as part of the legislative process – it protects legislators engaged in legislative acts, thereby preventing intimidation from the other two branches and permitting free and open discussion of policy issues.

    Why should we believe your characterization is correct:

    It does not, and is not intended, to shield legislators from searches, seizures, arrests and prosecutions of materials and for conduct that is indisputably criminal.

    Oh, so you admit that evidence – that was taken – could be suppressed because it violates the privileges:

    In any case, any evidence obtained during such a search that is properly subject to the protections of the Speech and Debate Clause will not be permitted to be introduced during any prosecution of Congressman Jefferson.

    Sounds like DoJ really stepped on themselves: They violated a privilege; and then gathered information they can’t use. Sound a lot like the NSA activities when they violate the Attorney-Client privilege. “Hay, we can’t use the information in court; we don’t’ want the court to find out what we’re doing; we’re just doing this to gather intelligence.”

    Here’s some intelligence: Wendy is making stupid arguments like Adam.

    * * *

    Here we are, this far into the discussion, she finally mentions “courts” but fails to cite a case.Interpreting the protections afforded by this constitutional protection, courts have determined introduction of such evidence would amount to “questioning” the congressional member concerning a speech or debate in the member’s House.

    Hay, I’m all ears: If you have a case cite it. You failed.

    * * *

    This is shifting the burden of proof from the government to those violated.

    To date, however, none of those crying foul have identified any document or item seized that is actually entitled to protection under the Speech and Debate Clause.

    Doesn’t work that way, Wendy.

    There’s one document we need: The US Constitution. You have the burden of proof to justify why that privilege should not be recognized, not the public’s job to argue an irrelevant point.

    Try again.

    * * *

    What a load of non-sense:

    Instead, in what amounts to a disturbing attempt to create a place for themselves above the very laws they enact, several members of Congress demanded the return of all items seized.

    The real problem is that DoJ attorneys like to pretend they are “for the law,” when they go out of their way to undermine it with non-sense legal arguments.

    Where are the clauses in the Constitution that says the Congressional privileges can be trumped by a DoJ Attorney? Zip.

    If POTUS wants us to grovel at his feet over “privilege” to hide NSA information (that is not needed) to show he’s violating the law; then surely the Congress is entitled to the same protection. Wendy cannot answer why DoJ is asserting two standards on privilege: One for POTUS, and one for “everything else.”

    * * *

    In light of Rendition and Guantanamo, this is meaningless:

    If charged with a crime, a jury will determine the guilt or innocence of Congressman Jefferson.

    This is complete non0sense and double talk:

  • Why are some people asserted to have the “protection” of a court, when others are denied?

  • Why is Article 3 of the Geneva Convention ignored when it comes to belligerents?

  • What’s DoJ’s position on the Geneva Convention?

  • Why is DoJ arguing for “respect for the Constituent,” yet the Constitutional protections mandating assent to treaties is ignored?

    * * *

    “no doubt” – what’s the basis for this contention:

    No doubt, the evidence submitted to that jury should exclude any materials appropriately protected by the Speech and Debate Clause.

    You offer nothing.

    * * *

    What’s your proof:

    But where probable cause existed for evidentiary searches, particularly where the type of evidence sought is so wholly unrelated to the Congressman’s legislative acts, the Speech and Debate Clause does not stand in the way.

    You offer nothing.

    Moreover, your claims that these standards were “important” are absurd. DoJ-NSA has a well documented history of having no regard for these principles:

  • You fail to show that “4th Amendment concerns” as they related to this issue should be given concern, but those concerns were ignored when it came to the NSA and illegal domestic surveillance.

  • You fail to show that “probable cause” concern is real, given Hayden’s assertion that “reasonable suspicion” was “good enough” to ignore clearly promulgated FISA and 4th Amendment protections.

    * * *

    You cite no points or authorities.

    Similarly, the conduct of a routine investigation, even when the target is a member of Congress, does not violate separation of powers principles.

    An assertion doesn't mean anything. There are other views. Go look them up next time you're litigating in the DC Court.

    * * *

    To think that Members of Congress, when you worked in DoJ, had to listen to this kind of drivel:

    Indeed, both the Executive and Judicial Branches served their intended role in this situation.

    What a load of non-sense. They didn't serve any "role" other than gang up on the Congress.

    * * *

    "It is only. . ." -- what a load of non-sense. In truth, what's happened is that DoJ, the Executive, and other (arguably) stupid attorneys have said, "Hay, if we don't get our way, we’re going to quit."

    "Wow, they're going to quit, they must be serious. If they’re serious, they must be right."

    No, people who are stupid can be very serious about things they have no clue about.

    It is only Congress that seems uncomfortable with the fact that they may be subject to the same Fourth Amendment search and seizure principles as the rest of us when acting outside their legislative roles.

    It is stupid to say "Only Congress. . ." No! Our Constitution is the one that is not comfortable.

    You cannot assert the 4th Amendment "seizure" standard on the very body that has violated, ignored, and otherwise assented to illegal violations of that requirement.

    The issue is that Congress, be being the unlawful target, has now felt the full wrath of the DoJ-Executive-monster it created in assenting to Viet Dinh's non-sense in the Patriot Act; and the full NSA activities.

    * * *

    The same could be said for the White House:

    Simply having a legislative office does not make anything contained within it legislative and worthy of special privilege.

  • Other than the Secret Service, what’s really stopping the Capitol police from raiding the White House?

  • Given DoJ attorneys like to argue that “whatever is needed” to achieve an outcome, is it not reasonable to argue that the US Constitution is best protected from domestic enemies if private citizens could lawfully make raids into attorney offices to seize evidence of an unlawful conspiracy against the Constitution?

  • If we have stupid legal arguments, isn’t that enough to show that an attorney could be a domestic threat, and should be deprived of any claim of privilege that she might enjoy that would otherwise expose the full extent of her stupidity?

    * * *

    Naive Attorney: Arrogant Executive Playing Victim

    Hitler was really good at making it look like the Germans were "victims" as they continued their march into Poland.

    You haven't made any case that the document were legally seized; only asserted that a warrant (however confused a court might be) could trump Constitutional privileges.

    A constitutional crisis? Only if the Executive Branch is bullied into returning documents that were lawfully seized.

    Wendy, I have no idea, let's see if we can apply "your rule" (Executive as victim) and apply that to Congress:

  • Why should Congress be retrained in passing laws, and overriding Presidential vetoes, that imposes felony-sanctions on the President from engaging in this legal non-sense?

  • What's stopping We the People from passing a New Constitution outside Article V?

  • What's to say that any attorney should have an input to the legal system that might be devised under a New Constitution?

    Maybe they should make a rule: If an attorney does not recognize Congressional privilege, then that attorney should not have their attorney-client privilege protected.

    Might want to ask the DC Court about that, next time you're appearing.

    * * *


    Merely invoking the phrases "national security" and "criminal investigation" cannot be permitted to undermine the “Speech and Debate” and “separation of powers”.

    Merely invoking the phrases “Speech and Debate” and “separation of powers” cannot be permitted to undermine a legitimate criminal investigation.

    What basis are you using to say this is "legitimate"? You offer nothing by way of case law, points, authorities. Hint: Do not use SC Case law when making a legal argument before the DC court.

    Oh, yeah that place where you can't litigate. If you can litigate in the DC court, why isn't your CV accurate?

    * * *


    You don't really believe this:

    The Executive Branch is constitutionally tasked with enforcing our laws.

    What the executive is constitutionally "tasked" with doing, and what he actually does is obviously quite different. Too bad this DoJ since 2001 has ignored the constitutional obligations:

  • How many warrantless surveillance programs are there?

  • Which statutes and Constitutional protections and treaty obligations were case aside as being "quaint"?

  • Which signing statements did Addington coordinate with Keefer?

    * * *

    Executive can assert privilege and immunity, but Congress can't? Wow, Wendy that sounds kind of lopsided.

    If that branch is prevented from performing this task because the target of enforcement is a legislator, that is when a legitimate constitutional crisis emerges: we would be allowing Congress unjustified immunity from fair and just enforcement of the law.

  • Why is Congressional assertion of privilege (that is recognized with case law) somehow a "lesser power and privilege" than an illusory Executive "privilege" to absurdly usurp Article 1 Section 8 powers to "do all things necessary and proper"?

    Here's a hint: The legal arguments Addington pasted in the 1987 Minority Report have been cherry picked and crunched into Dolly Madison pie, so don't even try to argue his line of non-sense. Might help if you, Addington, Gonzalez, Dinh got together and actually read the full cases that you're using as a legal basis.

    Oh, wait, you were there in 2002 when the NSA kicked off. Surely, you'd be in a "really good" position to provide them with some legal arguments that would back up the basis for the activities? Apparently not, DoJ' legal arguments, as are the President’s, are worthless.

    * * *

    This is like saying, "The American people could have avoided the illegal NSA activity if they had simply rolled over and not asserted their rights.

    Congressman Jefferson could have prevented the search had he simply complied with a subpoena issued to him last year.

    Actually, the problem is that DoJ failed to exhaust all other options.

    * * *

    Nope, you've failed to explore the 'Other options" that POTUS is using a basis to seal the evidence: There were other thing that could have been done.

    This is stupid, asking us to believe "there is only a choice between two things:
    Instead, he refused to comply, leaving investigators with only two choices: (1) seek court approval to search for the documents, including a search of his office, or (2) provide special treatment to members of Congress by providing a de facto depository for evidence of crime. The first was a proper execution of the law. The last would have been a real constitutional crisis.

    Absurd! There are more options, which is the basis for POTUS to say, "We're going to come up with some other options."

    * * *

    Next time I read things like this I'm going to think, "Hay, I've read comments by a DoJ Attorney and in my opinion they're worthless":

    Wendy J. Keefer is a lawyer with Bancroft Associates in Washington DC. She previously served as Chief of Staff to the Assistant Attorney General in the Office of Legal Policy at the U.S. Department of Justice.

    So what!

    Executive V. Legislative Privilege

    Wendy is arguing both sides. Michigan court recognizes there are two issues: The legality of the program; and the technical NSA capabilities. There's no reason to "hide behind classifications," when the real issue: White House has no legal argument to justify their conduct. It's a dubious claims to assert "state secret," when the legal arguments invoked are disconnected from the Constitution.

    Someone needs to get the "legal team" in the RNC-White House-DoJ to cite the specific case law they're relying on to say the Executive has "inherent authority" to do something domestically, and in violation of the statutes.

    They keep bantering around an Article 1 Section 8 argument [the "necessary and proper"-clause, which only applies to the legislature] and would have us believe that the Executive has that same right.

    Again, it's time for the attorneys who are using this language to come up with the case law; and show that they're not selectively cherry picking form the statutes. They've failed to do this, and Addington-Gonzalez have given us nothing to justify confidence in their legal arguments.


    Nothing we've seen from DoJ has amounted to any plausible justification for the abuses since 2001. We've been fed drivel.

    You'd think those who were involved with this (arguably) reckless abrogation of the US Constitution, Geneva, and the US Statutes wouldn't be stupid to publicly demonstrate their stupidity.

    But not this crew. Addington, Gonzalez, Yoo, Viet Dinh have time and time again given us plenty of evidence of their (arguably) reckless disregard for the rule of law.

    It's time the American public realize the absurd legal arguments invoked to undermine the rule of law. The1987 Iran-Contra Minority Report has been the template for this non-sense.

    As we move forward into what will likely be a DNC-reassertion of the rule of law, it's time the American Bar Association do some house cleaning. It is absurd someone put on their CV that they were on any ABA education committee, and they are incapable of drafting a coherent legal argument with one case citation.

    If the ABA and Congress refuse to enforce minimal standards of professional conduct, the public is willing to make adverse inferences and expose our capital to other markets that are more consistent with the rule of law. If you're going to lecture the American public about "what we should put up with," start looking in the mirror: We the People may lawfully impose sanctions on Attorneys who put their personal loyalties above their loyalty to the US Constitution.

    Wendy, in my personal opinion, and this may not be widely held, you did a really nice job of exposing the problems with DoJ: They've got weak attorneys who spew forth drivel. Thank you for sharing the reasonable basis to conclude where the problem really lies: Inside the DoJ legislative liaison and legal offices.

    We can continue to expand, broaden, and deepen this inquiry. Because of this arguably reckless conduct in the American legal community, a memo from the EU will be delivered to both Houses of Congress shortly making it very clear the world community considers the United States a rogue nation.

    It remains to be determined whether these legal issues can be amicably resolved in the court, or have to be resolved on the battlefield.


    * * *


    Here's the major problem for the entire crew at DoJ: Hamdan raises substantial questions as to what type of thinking was going on inside the DoJ Offices.

    Out of the mess of DoJ, we have the following:

  • Illegal activity, and violations of Geneva

  • Refusal to stop what Hamdan said violated Geneva

  • Rendition to CIA detention centers, which the US has openly admitted has occurred, and needs to be revisited in light of Hamdan;

  • US DoD's SECDEf has been subpoenaed over alleged violations of the Geneva conventions for kidnapping Iraqi civilians

  • Haynes has allegedly committed perjury before the Senate Judiciary Committee over matters related to rendition

  • Between 2000-2006, a period when Wendy was assigned to the DoJ, the DoJ OPR was prevented from reviewing information related to the allegedly illegal NSA surveillance activity

  • DoJ Staff attorneys have issued inconsistent statements on the law, statutes, and what did or did not happen related to the fisa-nsa violations

    * * *

    The problem is simple: In my personal opinion, it is not reasonable for the public to look at the DoJ Staff attorneys, nor their performance without looking at the results of their legal advice.

    Attorneys have a duty under Article 82 to ensure the laws of war are fully implemented. If someone is going to point to their experience in DoJ as something that deserves attention, that is one thing; but to point to that work experience without permitting a full and balanced view of the results of the internal dynamics, and Hamdan violations asks that we narrowly review the work products.

    It is not appropriate for the public to be given information without sufficient details as to the legal references; nor does it inspire confidence in the legal community as a whole when these kind of arguments, wholly disconnected from any references to case law, are presented as if gospel.

    The way forward is to meet or exceed the standards of professional writing expected in peer review journals. If you are writing for the open media, then you should at a minimum:

  • Cite your case law and governing authorities;

  • State openly your experience, and limitations with your reported cases;

  • Adequately deal with the credibility issues DoJ Staff attorneys have

  • Provide a compelling argument as to why Your argument, not your speculative/irrelevant intention, is valid.

    Whether your conclusions are or are not valid is irrelevant as to the central issue: Is your argument credibly presented.

    Based on a cursory review of your background, and a quick read of your work I have little confidence that you've carefully crafted a well honed argument. further, in light of the reported cases, and the common patterns, I detect there are areas that may warrant your attention. Obliviously, whether you do or do not pay attention to these matters is your choice.

    My concern is that the more that we learn about the inner workings of DoJ in the period 2000-2006, it appears to have recklessly been operated, managed, supervised, and led. It is also troubling upon close scrutiny of various public statements that there are many instances when the reported public statements do not match what we now know about the legal compliance issues. These are more than cursory or momentary glitches, but a recurring problem.

    What is unfortunate is that rather than resolve these issues, the leadership in DoJ refuses to cooperate with lawful inquiry by the DOJ OPR. It is our job as American Citizens to make informed judgments. Given the lack of Executive Branch cooperation, dubious claims of privilege, and failure to provide credible legal arguments, matched with the legacy of abuse and illegal conduct identified in Iraq, Guantanamo, and Hamdan it is difficult, if not impossible, to have any confidence in the work products of those associated with DoJ during this period. Subsequent voluntary public statement and writings which are consistent with this adverse opinion tend to inspire confidence that the internal DoJ work products between 2000-2006 are of no better or worse quality.

    The results in Hamdan are telling; and the apparent disregard for Geneva in Guantanamo, and the apparent NSA violations of fisa, combined with the information provided to Congress from this period raise serious questions as to the integrity of the personnel. ABA rules of conduct require attorneys to report misconduct, violations of the law, and ensure that the legal profession is beyond reproach. This is the peer review process. What is troubling is despite this peer review reporting requirement to DoJ OPR, we see little evidence the work products provide sufficient leashes to what we have subsequently learned are violations of international law.

    It remains to be understood:

  • Where were DoJ Staff attorneys when it comes to Geneva 82 enforcement;

  • How were the Bybee and Goldsmith memos (related to war crimes risk associated with Iraq, torture, and Geneva violations) reconciled with the Article 82 requirements;

  • How did DoJ OPR handle the lack of JAG input to the DoJ-DoD review of the prisoner of war detention policies;

  • Why are we hearing inconsistent information from Haynes about what military law experts did or did not review. It appears as though the supervisory attorneys within DoD and DoJ failed during the period 2000-2006; and that the laws of war took a second seat.

    What makes this most troubling is that we now learn that the abuses had nothing to do with the events of 2001, as some might want us to believe; but that the NSA-fisa violations, illegal surveillance, and other illegal conduct was well in place before the events of Sept 2001. In short, putting aside the legal defects of the original arguments, the new information casts DoJ Staffers in a far more negative light: It appears the work products provided to Congress were not only legally deficient, but wholly disconnect from the real facts and basis for decisions.

    Based on the review of the work product above, it appears as though the DoJ Staff has a habit of asserting legal fiction with little expectation it be challenged either in house, in public, or in the court.

    Those days are over.