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Sunday, December 31, 2006

House Rule 603 and Conyers' Ethics

What happens when a defense is not plausible, but amounts to an inadvertent disclosure of an attorney-client communication?

House Rule 603 to the rescue.

[ Discussion ]

* * *

The House Ethics issues in re Conyers should be studied in the context of the President’s alleged illegal activity involving the NSA and Department of Justice. There appears to be a common approach to rules: Feigning ambiguity despite no evidence this ambiguity was real; and a failure to timely ensure activities were consistent with legal requirements.

Where the primary oversight appears to have been compromised, the Founders created a second level of oversight: The States, the primary champions of the People’s rights and defenders of liberties against encroachments by the Federal Government.

There state proclamations are ready to compel the House to do what the House leadership appears unwilling to do: Go on the record whether they are for or against holding the President to account. Where Members of Congress may make excuses for not doing what they should, House Rule 603 remains on the table to remind the House of the primary agenda: The Constitution as it applies to all.

* * *


Conyers has freely proposed and incredible defense, subjecting those assertions to cross examination, discovery, and interrogatories.

Once defense makes an argument -- that it is/was confused -- the burden shifts to the defense to prove that defense. Without evidence, that assertion/defense collapses. Once defense makes this assertion, this opens the door for the government to examine these assertions.

Conyers is implicitly arguing there was [paraphrasing] "rule confusion." If true, there must be evidence confirming this confusion was real, contemporary, and not retroactively created. These present-sense perceptions should have been memorialized in attorney documents, reports, reviews, and recommendations. Where there is no evidence of this confusion, this casts doubt on Conyers-Attorney assertion that the confusion was real.

Conyers is also implicitly arguing for confidence in his defense. Again, there must be timely documents supporting these contentions. Where there is no evidence, Conyers cannot be presumed to have met his burden; rather, the opposite is more likely true: The defense was retroactively devised.

* * *

GOP Interests in House Ethics Conclusions

The Ethics Report conclusion is important for the Executive Branch. Arguably, the President and Administration, relying on the Ethics Report, can argue, "The House relied on asserted confusion and lack of rule-standard clarity as a defense; the same defense should immunize the President from consequences related to impeachment." It remains up to the Senate, not the House, to revaluate this defense.

Conyers defense, and the House Ethics Committee acceptance of that defense, puts the President's conduct in a more favorable light. Despite "confusion" where there were clear rules on FISA, prisoner treatment, and laws of war, the House Ethics Committee has agreed to frame issues in terms more favorable to the Administration. By approving conduct substantially similar to the President, the House Ethics report becomes an (irrelevant) legal excuse to do nothing about the President's abuses.

The problem for the President is the Title 28/50 exception reports, knowledge of the problem without changing the status of the prisoners, and Hamdan finding the President knew, or should have known, the legal requirements.

If the confusion were real, or the rules were not clear, as Conyers and his counsel suggest, when the problems surfaced there should have been some actions. By asserting this defense, this is an admission of what should exist to support the validity of this defense.

These notes, concerns, and discussions should have been documented. Once defense makes this assertion, these documents -- if they exist -- are admissible, and no longer protected by privilege. However, if Conyers asserts this defense, but claims the evidence of that confusion cannot be admitted, the defense fails. This defense can be supported by notes, study, meetings, and communications.

___ What effort, if any, did Conyers or Congressional staff counsel, make to clarify the rules?

___ What rule changes were reviewed?

___ What study of the rules did Conyers and counsel make of the issue?

___ Why was Conyers staff is a position to know, and report a problem, but some would ask us to believe there was confusion?

Confusion, if it were real, would have implied that nobody would have known the standards, what to do, or that there might be a problem. The Staff conduct belies the assertion that there was confusion. The Staff reported a problem, indicating they were clear of the requirements, which a more knowledgeable staff counsel should have known with precision.

___ How could the staff be (a) confused about the rules; but (b) knowledgeable enough of the standard to recognize a problem and preserve evidence; and (c) in a position to report a problem to appropriate authorities?

The lack of evidence is admissible. The "trust me"-defense is not valid. Subsequent events are not consistent with the asserted defense. There should be recommendations, studies, and reports. There should have been reports of the concerns as the events were unfolding, not requiring this many years to get around to reviewing these issues.

It is irrelevant how the rules were or were not defined; the issue is the conduct, not the confusion. If the problem were real, Conyers and Staff counsel should have indirectly requested changes, not confirmed the details that there was no aggressive effort to study the problem.

___ How does anyone from Conyers legal office explain why there was enough knowledge of the staff for the staff to report the problem; but legal counsel and Conyers asserted that these issues were detractors in 2006?

___ If we are to believe that Conyers looked at commentary related to these issues as detractors, why should we believe that Conyers was taking the issues seriously?

Something is either getting serious attention or it is viewed as a distraction.

___ Why does it appear Conyers and his legal counsel have shifted the focus from (a) Conyers actions and inactions; to (b) Whether the staff was or was not confused?

Missing Evidence

The House Ethics report arguably misplaces the focus on the wrong issues, persons, and time.

___ Where is Conyers' self-report of a problem?

___ If Conyers was actively cooperating, why was the investigation apparently launched not because of Conyers self-reporting the problem, but because staff reported the issue?

___ How can anyone credibly argue that the rules were unclear or staff need training, when it is the staff that reported the problem?

___ Who made the argument that the staff needed training when it was apparently the staff, not Conyers that reported the problem?

___ How can the House Ethics Committee argue that Conyers' conduct -- apparent lack of self-reporting of the issue, requiring staff action -- is creditable?

It is absurd to pretend that the staff conduct is the issue. The Staff reported the issue about Conyers conduct. It is absurd to subject the staff to training and monitoring in 2005 for direction, oversight, and actions of Conyers long ago.

___ If events happened [paraphrasing] "long ago," what sense does it make to continue oversight in 2007?

___ How can anyone argue that the staff actions of "long ago" do not have some bearing on issues in 2007 when the monitoring continues?

It appears the House Ethics Report conclusions has narrowly defined the misconduct, then "voluntarily cooperated with the reviews" as a mitigation to keep the focus on training and staff, not on Conyers.

The Report and Conyers responses appear to shift the argument on whether events were close or near in time. Events were supposedly far away when looking at the relevance; but the events were close when looking at the responsiveness. This is not consistent.

* * *

FAQ: What does House Rule 603 Have to Do With Conyers?

If, as it appears, Conyers has justified retroactive changes to reasons for inaction and actions -- just as POTUS did with Geneva, prisoner treatment, and FISA -- Conyers is in no position to credibly challenge similar conduct. House Rule 603 bypasses Conyers and forces the House to review the matter. The Precedent of Swayne in 1903 is instructive. Even if the Judiciary Chairman and Judiciary Committee cannot agree, the State Proclamation can direct that the issue go back to the House, regardless Conyers inaction. It is possible to impeach the President without cooperation of the House Judiciary Committee.


Ref Alleged Attorney Disbarment Investigation in re alleged malfeasance on legal issues.

Ref Oversight of Congress Archive

Ref Title 28 and Title 50 Exception Reports: Once the President's illegal conduct was known, where was the Congressional review to find out the status of these missing reports?

Ref Sample changing the focus: Geneva definition of torture, as is asserted "rule confusion" is irrelevant. Definition only related to abuse and the conduct, not the defendant's state of mind. Irrelevant how one defines the rules -- clear, misunderstood, or vague -- the standards were clear and others were not similarly confused.

Ref Ticking Time Bomb: There are many questions that should have been, but were not asked, that an attorney in Conyers position knew, or should have known, should have been asked. The lack of questions suggests a pattern of conduct below what one would expect of a Constitutional officer who was both trained on the law and took an oath to fully assert the law.

Ref Military Commissions Act: Retroactive changes to standards are not permissible, just as it is not permissible to lower the standard for a board certified attorney, to a standard below the qualifications of his non-attorney peers in Congress who were not confused by the rules.

House Rule 603 and Conyers Ethics

House Rule 603 Permits States to issue proclamations calling for impeachment, and the House may consider these proclamations. The Swayne Precedent of 1903 shows that even if the Judiciary Committee investigation cannot agree on what happened, they can forward the results to the House for a vote.

Pelosi and Conyers are in a curious position: Implicitly suggesting that House Rule 603 cannot compel Congress to confront an issue. Whether the House does or does not support impeachment, ore fuses to investigate is irrelevant. The States have the power to make the House go on the record: Are they willing to confront the issue, or not; will the House – regardless what an individual Member of Congress says – act as a single body to assert or not assert power.

House Rule 603 is on the table. Between now and 2009, Congress may or may not review information from the DOJ’s US Attorneys, FBI, and Grand Juries; the states also have the power to prosecute a sitting President; and international war crimes prosecutors have the power to indict anyone allegedly complicit in war crimes planning, or for refusing to prevent war crimes.

* * *

The House Ethics Committee, including the ranking and majority leaders, can using any criteria, start an investigation with or without a formal complain or allegation. The House Ethics Committee needs to decide whether it is or is not serious about reviewing what is or is not conduct reflecting credit upon the House.

Arguably, a pattern of abuses related to appropriations, and known violations of the law – which Members of Congress did not investigate – does not reflect well on the House. When Members of Congress know the house rules well enough to hire attorneys, spin the news, and change the subject, this raises additional issues: To what extent are the engaged in a course of conduct to explain away their alleged malfeasance for what they should have done while a ranking member on any committee.

* * *

Before the November 2006 election, Congressman Conyers allegedly made public statements related to his concerns that various media outlets were making hay out of non-issues. Conyers allegedly posted information on his blog suggesting that the public attention of these media reports was a good sign and the public should rest assured that these were merely partisan issues. Conyers allegedly used the word “detractors” to suggest the public revelations were partisan, unwarranted, and amounted to nothing.

In the last days of December 2006, the House Ethics Committee released a summary statement. The facts contained in the summary statement, and facts reported by The Hills suggest Congressman Conyers in the summer of 2006 knew, or should have known, that his statements related to alleged “distractions” were understating a problem. Conyers knew well enough of the legal issues to hire an attorney. As reported in The Hill, the Congressman fully cooperated with the investigation, and the FBI was brought into the nexus.

The Hill reports that the Congressman accepts responsibility for the problems, and Conyers reportedly was blaming a bad result – the alleged improper use of employees for campaign activities and personal business – as a [paraphrasing] “lack of clarity in the rules.” This seems odd to suggest. If the record is correct, it was the Congressman and others in the DNC who suggested in light of the Iran-Contra affair that Cheney’s statements about [paraphrasing] “unclear Congressional rules” were disingenuous excuses by the Administration.

Perhaps the record is incorrect, and the Congressman expressed no opinion. The point is that regardless what Cheney or others may or may not have done on issues of violating the law, the general thrust of the public statements was that there was a concern within the House leadership that it was not reasonable, nor responsible, for any member of the Administration to blame the “lack of rule clarity” as a bonafide excuse for not following the rules.

Rather, in light of the FISA, NSA, Geneva, and other alleged war crimes, the Administration has allegedly engaged in a similar course of conduct: Blaming the “lack of clarity” in the rules as a pretext, defense, justification, and other excuse for not coming to Congress, refusing to cooperate with the law, and not fully doing what one should have done: Fully followed the standards.

* * *

All Members of Congress and Administration officials have open access to government staff counsel, they have hiring plans, and a requirement to publicly report to the leadership whether the staff counsel are or are not meeting their performance plans. These are statutes outlining the basis for assessing whether personnel are or are not being gainfully employed.

Title 41 of the US Code outlines various rules, methods, and requirements to do various things, including a reporting requirement to the US Attorneys on issues. There is also a biannual report Members of Congress must provide to the House leadership; the next report is due at the end of March 2007. Title 28 and Title 50 are also exception reports which Members of Congress knew, or should have known were not fully being followed; and had the option to forward their concerns to their peers in either party, ranking members, US Attorney, and Inspector Generals.

* * *

It would be appropriate for the public to examine the state of the Congressional ethics investigations in light of the Foley and Conyers findings. These are two Congressman who have been the subject of an investigation, and in both cases – both the DNC and GOP targets of that investigation were found not to have engaged in any conduct that did not bring discredit upon the House. We leave it for history to decide whether this conclusion is warranted.

Going forward, in light of Conyers 2006 summer statements on the investigation, it appears as though someone might not have been quite as forthcoming with the public that he might have been with the investigators. Contrary to apparent public dismissals of the issues – apparent characterizations that the charges were from long ago, unwarranted, and partisan – a plain reading of the House ethics report summary paints a very different picture: That the allegations did have some substance, and things were not going as smoothly as one might have hoped.

Rather, it appears as though, based on the findings that the [paraphrasing] “rules were not clear” that someone was or was not enforcing clear, vague, specific, or uncertain rules. Rules are not things that can be blamed; rather, the responsibility – as was the case with FISA – was for those who were engaged in the conduct to have sought clarity, rather than fumble in the confusion.

* * *

It is important to consider the NSA wiretapping issues, FISA requirements, and Conyers conduct in the nexus of House Rule 603. If we take Conyers at his word that impeachment is off the table – despite House Rule 603 which permits the States to put the issue on the table and agenda – we must consider why there is certainty of inaction on impeachment while the Constitution delegates this power to the House, not to Pelosi or Conyers to ignore or not exercise.

The Iran Contra affair as was the case with FISA hinges on the abuse of power. The House Judiciary Committee has an important role. However, the House rule 603 Swayne Precedent suggests that even if the Judiciary Committee refuses to timely do anything, the House – as a body, outside Pelosi’s control – can independently put a time limit on the investigation of the Judiciary, and compel a report by a certain date.

Bluntly, the States have the power in the State Proclamation to ask that the House vote on ordering an investigation, submit a final report, and take a vote on the final report within a specific time. Nothing Conyers or Pelosi does can change how the States craft or issue this proclamation.

* * *

If Conyers is going to have a role in the reviews of the FISA issues, it is troubling that his explanations for what did or did not happen on his personal ethics issues echo those of the Vice President in re Iran-Contra. Bad results are not because bad rules, but because leadership refuses to consult with counsel to clarify the rules; or they fail to provide leadership and guidance despite a problem.

Attorney General Gonzalez has faced some interesting questions from The Senate Judiciary Committee, specifically Senator Feingold. We’ve repeatedly heard Feingold question the veracity of the Attorney Generals statements, questioning why Gonzalez did or did not seek clarification and Congressional assistance when he should have. Some suggest that the matters were too secret or sensitive; yet the FISA requirements are clear – this is what is required. If there were other approaches, those should have been made part of the record and the FISA statute updated to accommodate what the President wanted to do. This was not done.

* * *

I’m not satisfied with the House closure of either the Foley or Conyers investigations. If Conyers is on probation, or there will be subsequent reviews of whether his office is or is not complying with the rules, this means the issue is not closed, but remains open. It is not correct for the House Ethics Committee to conclude anything until the probationary period is over.

Conyers has been nominated to be the Judiciary Chairman. His job as Chairman, among many things, will be to oversee the Department of Justice, US Attorneys, and make modernizations to the rules of evidence, and seek Administration input on civil rights statutes.

It is troubling that someone in Congress who proposes to oversee another branch in their effectiveness of implementing rules may be in a position to decide whether charges should or should not be brought. I fail to see how someone who apparently explained away a material finding of incorrect conduct as a “partisan issue” can credibly challenge or oversee similar allegations of rule violations in re FISA, NSA, and the Geneva Conventions. Perhaps there is something obvious that we might be shown to suggest the apparent discrepancy is unreal. I am not convinced.

Rather, based on the House Ethics Report summary, and the contrast the findings are with the Conyers public statements in the Summer of 2006, I fail to see how the public comments on the blog can be characterized as anything that reflects credit on the House or the Congressman. It appears as though the Congressman, in light of his hiring a private attorney, knew enough to know there was a legal problem, but apparently failed to seek counsel when the issue was first raised.

Based only on scant Press reports, it appears as though the conduct from long ago – in the 1990s – was the subject of the House investigation, which Conyers – according to The Hill – implemented changes in time cards. It appears as though Conyers did not independently do this, but required the staff complaints to generate this result.

My concern is whether Conyers voluntary cooperating and new time keeping system was implemented after the incidents first occurred; or whether they started after the House Ethics investigation started. This remains an open question. My concern is that it appears as though the complaints about 1990s-era conduct were valid, resulted in changes, but these changes were not sufficient to resolve the issue, prompting the Ethics Investigation.

Taken broadly, this appears little different than how the President and DOJ OPR handled the legal issues on what should or should not have been done in the wake of the DoJ OPR review of the DoJ Staff counsel conduct over the NSA issues. The President appears to have done something only when there was public oversight, hardly warranting confidence that he could independently do something in secret; or that the President’s FISA reviews – outside the FISA procedures – were credible replacements.

Similarly, once the Rendition issues surfaced and the Hamdan ruling concluded the Geneva Conventions did apply to all prisoners regardless their status or location, the Administration transferred the prisoners from Europe to Guantanamo. Addington is reported to have not supported these changes or improvements in prisoner conditions because the adjustment would have been an admission of the original wrong doing.

These are issues which the Congressman will have a direct, if not important, role in reviewing on matters of allegations of Presidential criminal conduct. Each example contrasts sharply with what the standards were; and forms the basis for a reasonable line of inquiry in Conyers’ “Constitution In Crisis.” The oath of office was clear, the requirements were known, and the obligations to find out and comply with the law were known. Government officials had the duty to find out the law, comply with it, and not rely on ignorance or feigned confusion. These are serious charges to make about any President, especially when the link with alleged war crimes, illegal war, or invasions of Iraq without there being an imminent threat. Conyers was one of the moving parties arguing the President’s Iraq invasion was illegal.

* * *

Presidential oversight and asserting the rule of law are not discretionary. They are requirements which all US government officials swear an oath to do. The oath is to bind action, remove discretion, and ensure there is a 5 USC 3331 legal standard to determine whether one has or has not faithfully done heir job.

The Ethics investigations reveal that the Minority Members have the power, ability, and option to independently do things. Members of Congress, when they learned of the illegal FISA, NSA, and Geneva violations knew, or should have known, that there were substantive Title 28 and Title 50 exception reports that should have been filed, but were not.

Something is not adding up. The Vice President during the Iran-Contra affair stated the lack of Congressional rules [in effect] transferred the responsibility for the illegal conduct back to the Congress. Congress did not buy this argument. IT remains to be understood why a similarly alleged vagueness of rules is prompting the Attorney General to argue the same on the FISA, despite his having repeatedly appeared before Congress requesting changes after Sept 2001. There was needed coordination on all things, but this was not done.

* * *

The Congress needs to decide whether it views its oath of office as something that will keep the Constitution in a superior position mandating accountability and the full assertion of the oath of office, balanced with a reasonable duty to find out, and assert all lawful options to responsibly assert power as a faction; or whether it means whatever the public can be convinced it means. This is an arbitrary standard.

Before us is the case law of the 5 USC 3331 litigation – scant. This is not impressive. Going forward, it would please me if the US Attorneys and Attorney Generals were called before the Senate Judiciary Committee to review the Title 28 and Title 50 exception reports and comments they received on matters related to FISA, NSA, Geneva, and other alleged violations of the law. The issue for the Senate to review is whether the Department of Justice was or was not timely provided information from any or all Members of Congress as they reviewed the issues; or whether there is a reasonable explanation why the Title 28 and Title 50 exception reports have not been fully investigated as the oath might reasonably expect.

Once there is a clear story on what the Department of Justice has in its files by way of Member of Congress reports, investigations, and request for actions, the Senate will be in a position to decide whether it is or is not in a position to independently judge whether the President has or has not committed a crime on similar issues.

The error is when the Senate, by refusing to review what it has or has not done – by way of complicity with the President’s conduct, is asked to judge the President’s innocence or guilt on issues which the Senate is allegedly complicity: Illegal activity, failure to review evidence, and not fully complying with the law.

* * *

I have serious doubts whether the Senate and House are able to independently review the pattern of conduct and find a reasonable conclusion. The Ethics Reports for Conyers and Foley suggest high misconduct is required before a clear rule is deemed to have been violated. This is not impressive, especially in light of the large body of evidence, trends, and other valuable information in Conyers’ “Constitution in Crisis.”

Something isn’t’ adding up.

___ When were the rules violated?

___ What specific action, when Conyers knew of the rule violations, did he take?

___ Was the modernization of the time cards made within days and weeks of the original violations; or was the modernization effort made only after the House Ethics investigation started?

___ When did the Congressman know that the rules were [paraphrasing] “not clear”?

___ What effort did the Congressman, when the original rules were violated-not followed, take to clarify the rules, consult counsel, or clarify for staff what was appropriate?

___ If the clarification was provided early and the issues were resolved, why is Conyers on probation in 2006 for events that supposedly happened long ago?

___ What information did Conyers provide on staff counsel performance before, during, and between the 1990s and the 2006 final Ethics report; were staff counsel evaluations reasonable given the apparent lack of interest Conyers took in timely resolving the issue;

___ How does Conyers explain the public statements suggesting the media reports in the Summer of 2006 were [paraphrasing] “detractors” while he apparently knew the FBI and legal counsel were not in violent agreement as to what happened?

___ Who specifically had a duty to clarify these rules?

___ How did other Members of Congress resolve these issues?

___ Did other Members of Congress report a “problem” with the rules?

___ Which other “problems with the rules” similarly “caused” other staff, counsel, and Members of Congress problems?

___ Who permitted, did not stop, or failed to review the conduct and did or did not review whether the conduct was or was not fully meeting the rule requirements?

___ Which documents did Congressional Staff counsel provide, issue, document, make, or otherwise file when these issues were knowing in the 1990s; and how did the Congressional Staff counsel actions – across all Members of Congress – square with what Conyers and his staff counsel did or did not do?

___ What effort was there to review the Conyers financial payments plans, and compensation packages and award fees to Staff counsel; were the performance reports consistent with the pattern of conduct which Staff counsel engaged on these legal issues; or is there a disconnect between what Conyers reported as their performance, and what Staff counsel has documented, made available, or is ready to discuss?

____ If the investigation is closed, what plan is there of the House to make available to the Grand Jury the evidence which the Conyers Staff Counsel allegedly made, created, and documented on these legal issues?

___ Has the US Attorney been given full access to the Conyers Congressional Staff Counsel Comments and documents which Staff created?

___ How does the US Attorney assess the Conyers Staff counsel conduct in light of the Title 28 and Title 50 exception reports?

___ If Conyers and others were “appropriately” taken action, and fully cooperating, why is there a problem when Members of Congress are asked to account for the Title 28 and Title 50 exception reports?

___ What plan is there of the Ethics Committee to review the pattern of Staff Counsel Conduct which Conyers and other Members of Congress did or did not do; and compare that as a baseline with the known staff communications on issues related to the Title 28 and Title 50 exception reports?

* * *

Adverse Inferences

When a Member of Congress documents in writing that they view – what turns out to be in hindsight – valid concerns as distractions and politically motivated charges, and the Members of Congress accepts responsibility, this is a fatal admission:

1. The publicly issued statements were contrary to what the Congressman was doing, and knew his Staff counsel were aware;
2. It is not consistent for the Congressman, by not fully embracing the “politically motivated charges,” have us believe that he is taking responsibility.
3. Fully responsibility should have been a fully acknowledgement that the public comments on the issues had merit; given the option to remain silent, but the choice to characterize the concerns as “politically motivated” does not tend to inspire confidence in the Congressman’s assertion that he is accepting responsibly. Rather, it suggests that he’s negotiated a deal, and has accepted something as a compromise. Full cooperation would have mean, and competent counsel would have advised, for the Congressman to remain silent on the issues. HE chose to speak, make documented public comments, and essentially dismiss the concerns of the open media.

We judge the following:

[a] The Congressman’s counsel is a competent corruption attorney, well versed in the House rules, and aware of the legal issues.

[b] Congressman Conyers knew, or should have known that he should have provided adequate oversight, and investigated the issues in a timely manner. Because he publicly made comments to the contrary in 2006, this does not inspire confidence that he was accepting any responsibility.

[c] The NeoCon approach to the war in Iraq is not distinguishable form the Congressman’s approach to these personnel matters. Richard Perle has not shown real remorse, only a concern that a valid agenda would have been asserted and achieved if he had more resources. Similarly, the Congressman in 2006 – based on his apparent public misstatements – does not appear to have similarly shown remorse or responsibly, merely frustration that his staff challenged him on something hew knew, or should have known, was not appropriate.

[d] The promised probationary period is narrowly defined to employee staff conduct and training, but fails to look at the larger legal issues which Conyers will be expected to review: Title 28 and Title 50 exception reports; whether they were or were not fully documented.

[e] We judge Conyers Staff Counsel Compensation reports, as required for their periodic review, are not consistent with the work performed; and Conyers has a problem in reconciling what staff counsel was doing, which tasks Conyers was seeking guidance, and which legal standards Counsel hopes to apply retroactively in 2006 to the conduct in the 1990s.

[f’] Just as the Military Commissions Act retroactively granted immunity to all Government employees for actions 2001-2006, but this was not legal in that it is a retroactive change to the law; and as Hamdan stated that Geneva applied, but Congress continues to appropriate money for illegal things; we judge there are not compelling lines of evidence from Conyers or any Member of Congress to the ranking Committee chairman, ethics committee, US Attorney, or Inspector Generals on issues which all Members of Congress knew or should have known were to be documented din the Title 28 and Title 50 exception reports.

[g] Conyers has not shown real remorse. His public statements in the Summer of 2006 are not consistent with a desire to fully cooperate, but spin the public to believe something which was incorrect – there were bonafide concerns, and the substance of the conduct was substantially in contravention to the pattern of conduct other Members of Congress engaged.

[h] Claims that the rules were vague belie the lack of evidence that other staff counsel were confused; or that other Members of Congress had a massive wave of confusion on these legal issues. Rather, the lack of investigations suggests that only Conyers was confused, raising questions as to whether that “rule confusion” was retroactively crafted, as did the Attorney General on the FISA issue.

[i] We judge the Conyers approach to standards, rules, and requirements with as much confidence as we hold the President’s and Attorney Generals – zero. Both Conyers and the Administration have apparently retroactively devised an explanation that does not stand the logic test: The pattern of abuse, if the rules were this confusion, should be well documented, pervasive, and out of control. The reality is Conyers appears to be the sole Member of Congress, despite his legal training, who appears to suffer this retroactively rule confusion and ambiguity.

[j] Conyers does not appear to have fully exercised his professional skill as an attorney to properly review the information, nor manage the staff concerns, then organize his staff counsel to adequately review the legal issues. Rather, Conyers being a licensed attorney, appears to have fallen well below the standard which an attorney should be expected: To independently review the issue, not appeal to the ambiguity of the rules as a basis for continued defiance in 2006 of no wrong doing.

[j] We judge the pattern of conduct which Conyers has exhibited is substantially similar to the larger patterns of abuses of the Administration on issue of the DOJ OPR, FISA, war crimes, and other important issues raised in the “Constitution in Crisis.”

[k] We are concerned that the scope of evidence subject to Judiciary Committee review is large, but when compared with lines of evidence showing an apparent lack of attention to (1) attorney responsibilities; and (2) legal requirements; and (3) a duty to find out and provide leadership, there is a problem. This pattern of conduct, when compared with the alleged pattern of abuses by the Administration is stunning: How are we to believe that the Judiciary Chairman can adequately review and objectively evaluate this information? The answer: The Chairman is not in the Senate; any decision not to impeach the President is unrelated to the Chairman’s job to present evidence, not make a premature judgments whether the President may or may not be removed from office.

* * *

We do not question the Congressman’s ability to review evidence. He’s well documented his concerns in the House Ethics Report. We do question the credibility of his conclusions, which only the Senate can make: Is the President innocent or guilty of the charges which the Congressman may or may not process.

When someone views, as the Congressman does, public denials as acceptable while the underlying conduct belies those protests, the Congressman and President appear to be in the same corner, not in bonafide adversarial positions. Given the Congressman has no power to make a voting decision on issues of Presidential guilt or innocence, we would prefer that the Congressman did not publicly define whether impeachment is or is not successful in terms of factors he has no control: The Senate review of those facts and their unreviewable verdict.

If the Congress views the President as being guilty, that is his choice. If there is mounting evidence of his misconduct, there is nothing stopping the Congressman and others from independently going to the well of the House and charging the President with a crime. It would please me, given the scope of the alleged Executive abuse of power, that the House keep the following on the table as an agenda item – the possibility of impeaching the President and others not just once, but multiple times for different charges. There’s no reason to have a single impeachment, especially if the Senate doesn’t get it right the first time.

Some of the evidence is known and can be quickly charged; other evidence may take time to package into Articles of Impeachment for subsequent trials. Each time the GOP Senate reuses to convict the President, the House Judiciary and States will have more information of what new information is needed in the next impeachment to achieve a desirable result: Removal from office.

* * *

I applaud Congressman Conyers principled stand on the issues of impeachment. What is surprising is his apparent perception that We the People are not in a position to make adverse inference; or independently form judgments to the veracity of the Congressman’s Summer 2006 statements. It is our view that the Congressman’s conduct does not inspire confidence, but smacks of the same line of abuse, misleading statements as the President, only differing orders of magnitude, not their contempt for professional governance relative to clearly promulgated status.

Perhaps other Members of Congress and the public might review the record and ask whether – if the rules were as vague as we are asked to believe – why there is no evidence of other wrong going; and why it appears only Congressman Conyers, despite his legal background, has a difficult time understanding when to clarify rules. Where there is vagueness, the Administration sought to draw the line where Conyers and others do not agree. Conyers appears to have drawn a line retroactively, as the President has done, and asked us to believe that the President and he cannot have their conduct examined on the table.

Perhaps the Congressman may wish to discuss his concerns with his personal legal issues, and discuss publicly whether his reluctance to impeach is related more to a desire not to have his personal conduct examined; or whether there is another explanation why the Congressman appears in December 2006 to pretend that something was vague while other Members of Congress and Staff Counsel were clear in what was or was not appropriate.

* * *

Conyers appears to not want to challenge the President’s conduct because Conyers appears to have rationalized the following:

- Retroactive creation of defenses which are not plausible;
- Assertion of confusion where less legally competent personnel were not confused;
- Assertions of resolution, despite public statements belying this desired perception
- Real concern over legal issues, despite asserting the issue was partisan
- Not having timely done, from the outset, what one should have done
- Only adjusted course and path when the public learned of the activity
- Continued denials of a problem and attacking the staff who appropriately raised the issue

As with the FISA court and President’s failure to fully comply with the law, the fact that Conyers in December 2006 remains on probation suggests there is more to the story as to why the Congressman has or has not fully accepted in the Summer of 2006 all responsibility for what he did.

* * *

The Conyers and Foley Ethics investigations have a common theme: Alleged misconduct, but no accountability; a valid concern originally raised, but a finding that the conduct does not bring discredit upon the House. If these conclusions are the thinking of the House, We the People should not be surprised if the President is never charged with a crime: The House views the selective testing of the rules and laws as business as usual. The only difference is that the House believes inaction might lead to control of the White House, while the White House believes inaction believes might lead to control of the US Government.

Inaction on issues of rule enforcement, especially on issues of ethics investigations is only part of the problem. When the House leadership chooses to not fully do what it should, it sends a bad signal, especially to We the People: Administration officials have leverage if they can couch their retroactively devised defenses in terms that Conyers might “appreciate,” not what the law reasonably would expect.

House Rule 603 helps mitigate the apparent problem Conyers and Pelosi have with understanding the difference between factional clashes and discretionary disregard for rules. Impeachment investigation, when it is part of a proclamation from a state under House rule 603, takes Conyers and Pelosi out of the picture, and recasts the affair in terms of what the House as a legislative body will or will not do.

The Swayne Precedent shows us that the Judiciary Committee can be bypassed, and that even if the Committee refuses to support any adverse inference, a State can compel the House to vote on whether to investigate and impeach, regardless what the Speaker of the House or the House Judiciary Chairman may believe is or is not an impeachable offenses.

House Rule 603 effectively strips Pelosi and Conyers of discretion, as is needed, when they appear to have self-interests and biases interfering with whether they view the course of conduct as illegal, or something that is merely a partisan distraction. Rove argued that the level of opposition was a sure sign the GOP was winning; we was discredited. Before he steps into the well of the Senate, perhaps Conyers may wish to revisit his 2006 statements and reconsider whether he remains a credible leader to properly assert the oath of office and properly review evidence objectively.

* * *

There are issues of Chairmanship veracity. The House Intelligence Committee Chairmanship was in dispute. One prospective nominee had an impeachment against his name and he was not chosen. We’ve been led to believe that the right choice was made, and that one’s credibility hinges on one’s track record. Perhaps Speaker Pelosi may whish to reconsider the choice for House Judiciary Chairman; without the threat that he might lose his chairmanship if he dares raise impeachment, perhaps Conyers might return to his principled ways and lead the charge against the President. It appears he’s conflicted, silent, and not willing to charge the President because he fears rocking the boat. The President rocked the boat; the right answer is to throw all the factions into the water with the sharks, keeping the Constitution safe, dry, and entertained in the boat; and let the factions do what the Founders expected – Clash in the well of the Senate.. Let the victor use something other than the Constitution to dry themselves.

* * *

Regardless whether the House GOP or Conyers-Pelosi agree or disagree on impeachment, the way forward is to compel the House to decide whether it will investigate the President with an impeachment investigation; or whether the House leadership needs new leadership and guidance in the form of a New Constitution.

The issues underlying the Administration’s alleged cause of illegal conduct demand attention. The way forward is to decide before the examination starts whether the House has the right people reviewing the issues, or whether there are relevant concerns which need to be appropriately addressed. IT does not look good when the man possibly leading the critical legal review in the House is on probation, or that his staff is subject to additional monitoring and scrutiny. There are other staffs that are not in a learning curve; perhaps Conyers and others might agree that the Conyers staff is not sufficiently trained to follow time cards, and do something slightly more complicated like reviewing whether the President is or is not able to follow other rules. Before the Conyers staff can credibly oversee others, it must demonstrate it can do so on its own. The House Ethics Report summary states the Conyers staff shall undergo training. That is fine; let them get their training while America gets back to protecting the Constitution. When the Conyers staff is trained, they’ll have time to catch up. America is not waiting for Members of Congress to find it convenient to understand the rules; some are taking the principled stand to apply the rules.

* * *

Tacitus wrote of an agreement to distract the Roman citizenry with war. The objective wasn’t only to wage a war that would not be supported, but to distract attention from the agreement on the eve of the war.

There is more to the story on what Conyers did or did not do. It remains to be understood, if the Congressman was supposedly “unclear” on “vague” rules, what others rules, slightly more complicated, he did not effectively review, ask for assistance, or seek guidance. The right answer is for the US Attorney and FBI to review the Title 28 and Title 50 exception reports; and ask to what extent Staff counsel, Members of Congress, Conyers, and others were or were not fully doing what they should have done.

The House Ethics Reports into Conyers may have been closed on this issue, but the FBI appears to have information that remains open and part of an active file. Those files are not supposed to be destroyed for many years.

___ What pattern of conduct would interfere with Conyers’ oversight of the investigation of the President on issues similar to the lack of clarity on rules: DOJ OPR, FISA, NSA, and Geneva.

___ What is the plan, in light of Conyers open disclosures of the attorney-client communications, for these known communications to be brought into evidence?

___ Is Conyers asking that We the People recognize a privilege for the Congressman that should or should not be recognized for the President?

It is hardly taking full responsibility when one does not timely review a matter, especially when one has the legal training to know to clarify the requirements, or ask for help from competent legal counsel. Neither appears to have been done as should have been reasonably expected of the Congressman. This alleged malfeasance is not an issue the House Ethics Committee thought might bring discredit upon the House. They made an error – the conduct raises substantial questions whether the House leadership is or is not effectively ensuring it is meeting the high standards of professionalism and integrity it demands of the President on issues of war crimes, prisoner abuse, warrants, and surveillance.

A copy of this letter has been forwarded to the German and Italian war crimes prosecutors, and they are in a position to independently do things which the CIA and NSA have no ability to intercept.

Translation: The White House may or may not get a heads up that Conyers legal defense, although it fooled the House, can be introduced into the interrogatories to challenge more retroactive defenses. Once it is shown that the defenses were retroactively created, the original documents related to the illegal conduct are admissible. The only way the President and Conyers can credibly assert that the defenses were plausible was if they have written evidence that these defenses were actively discussed at the outset, not contained in subsequent documents. Where there is an absence of evidence where there should be, war crimes prosecutors and prosecutors may conclude that a Member of Congress, Attorney General, and President have retroactively fabricated a defense and not done what they should have done: Follow the laws, fully assert their oath, and bring credit upon the United States Government. This hardly inspires confidence that Members of Congress can independently conduct their business in secret, especially when they openly assert remorse while their conduct and statements belie this assertion.

* * *

The GOP is hardly likely to argue for a different chairman – they’d rather keep someone in place who has a known problem, then couch the President’s legal defenses in terms Conyers will likely say, “Wow, I did the same thing, and the House said No problem, Guess it would look stupid for us to be inconsistent.”

The DNC is not likely to independently agree to a change in the House Judiciary Chairmanship. This would reflect poorly on their ethics. Then again, when did the DNC suddenly get concerned with ethics? After they got caught, not from the outset when the staff raised the original concerns. Stunningly similar to the President’s strategy.

* * *

Conyers appears to be leaning on Pelosi to justify inaction; then he changes his excuse to whether impeachment is or isn’t popular. The Framers intended for the factions to clash out of self interests, not conclude that inaction was best. The oath requires something else.

It appears Conyers is avoiding some of the Presidential impeachment issues because of his silence, inaction, and lack of timely resolution of issues. Indeed, he fully cooperated after the staff complained, not when the original requirements were disclosed.

The issue with Conyers isn’t what he did or didn’t do; but whether he remains objective in reviewing like conduct in the President. He and his staff are on probation, undergoing on going review and training. One cannot be objective while they are still learning; they are students not masters.

There can be no silence on issues of power and the law. You can call it ethics, integrity, trust, the oath, or governance. The common thread is whether the elected officials can be trusted at all times to do what they should; or whether they make excuses to not do what they promised to do: Fully assert their oath to protect the Constitution.

Conyers and Pelosi, despite having no delegated power to take impeachment off the table, have incorrectly asserted that impeachment can only occur if is popular. This shows a lack of understanding of the Federalist Papers and the Founders intent to have factions clash, especially when the issue was unpopular. There are no medals for second place in politics – you are either asserting your oath all the time, or you’re not.

It appears some, out of social tact, have an interest to remain silent on issues of power and rules; and pretend a favorable ruling by the House on an ethics issue gives someone carte blanche to review others. Conyers arguably didn’t review his staff in a timely manner. He has produced an impressive report, but he is not the only Member of Congress who is in a position to lead an investigation.

The concern is Conyers specifically rebuffing valid public concerns about the issues, while he knew, or should have known, these were real concerns. His conduct, regardless the House Ethics conclusion, does not reflect well upon him or the House. He’s well outlined the President’s abuse of power, violations of the laws, and failures to fully follow the rules. Conyers well knew the importance of rules and the laws when he passed his bar examination, rand for Congress, and supported the Watergate Investigations.

Conyers appears to have an issue which warrants more explanation and review. His staff appears to need some support, assistance, and guidance. Ideally, a Member of Congress should provide the leadership. We think it appropriate that the US Attorney be brought deeper into the nexus and review the pattern of conduct in light of the apparent Title 28 and Title 50 exception reports that were not reviewed; and that the Senate review whether the Department of Justice, FBI, and US Attorney do or do not have a similar conflict in that they’ve not timely reviewed these issues as they should have, and the exception reports were not filed for another reason.

We recommend the US Attorney review the evidence provided to the House Ethics investigation to review to what extent Conyers made implausible statements on whether he believed the rules were vague. We judge, and this is only an opinion not an accusation, that he made implausible assertions of vagueness which he knew or should have known were not consistent with his true clarity of the laws. We conclude this adverse inference would be supported by the lack of evidence related to lesser qualified Members of Congress who were not similarly confused or lost in the alleged feigned “lack of clarity”-defense.

It is our view that a reasonable case can be made that Conyers left misimpressions with the Ethics Committee, raising questions as to whether his cooperation was full; and to what extent his statements warrant review in terms of perjury before an official proceeding; or whether there were feigned ignorance of the rules and laws which cannot credibly be supported by the fact pattern, course of conduct, or what is most reasonable.

We conclude the US Attorney should review the minority comments and dissenting views of the Ethics Committee, and be given full access to the documents in light of the statements, conduct, and other public evidence which is not reasonably consistent with the opposite conclusion. Once there are any disclosures, even inadvertent on a blog, these are matters for legitimate inquiry, and eliminate any reasonable belief by the Congressman that his attorney-client communications are completely privileged on these disclosed matters; and remove the full expectation that all Congressional Ethics Investigations are absolutely secret or immune to a Grand Jury examination.

It remains to be understood what level of evidence the Ethics Committee relied when concluding the Congressman’s asserted lack of clarity on the rules was real. This belief appears to be unreasonable, not consistent with the evidence suggesting most Members of Congress were not having problems. Conyers’ assertion of this as a defense is one for him to prove, not have secretly asserted without credible challenge and independent examination. If Conyers and Counsel did not wish to have this asserted defense approach challenged, it would have been appropriate if Conyers had kept silent on issues when he had the Constitutional right to remain silent. He chose to speak, opening the door to reasonable adverse inferences, and compromising his absolute attorney-client privilege on these asserted defenses. An attorney-client communication on a legal strategy becomes admissible when the public disclosures of those communications occurs; and the discussion becomes the basis for the Ethics Committee to conclude something that may be contrary to what is most reasonable.

It remains to be understood whether Conyers and Counsel have agreed to orchestrate a fraud, and retroactively devise a defense which does not appear plausible. We conclude, in the absence of a credible attorney-client communication proving the contrary, that it is reasonable to conclude not defense existed when the issues were first raised; and that the defense has been retroactively devised as a litigation strategy to insulate Conyers from serious legal consequences. It remains to be understood to what extent these communications were made with the intent to mislead, leave false impressions, or achieve another objective beyond a seemingly implausible defense.

If not already done, we recommend the details and evidence the FBI, US Attorney, and House Ethics Committee have related to Conyers be forwarded to the Michigan Attorney Disciplinary Board; and Conyers’ counsel disciplinary board, which we presume is the District of Columbia. Conyers and his counsel are advised to seek independent counsel. No claim is being made they have engaged in professional misconduct. They are presumed innocent until proven guilty.

* * *

It’s disingenuous to characterize questions related to these issues as a partisan attack. This is the Founder’s intention of having factions clash. Without the adversarial system, the FISA court is not well served. It would be appropriate if the Congress similarly embraced the idea of public debate and challenge, even when the House Ethics Committee makes a conclusion that defies reason and the known facts. Perhaps there is another reasonable explanation.

We look forward to a spirited debate in 2007 and more State Proclamations calling for the House to investigate and impeach officials in the Bush Administration. It only takes one state; and one state can lawfully make the House run in circles. There are 49 others, and then there’s the small matter with the German and Italian war crimes prosecutors.

They wished this.