Constant's pations

If it's more than 30 minutes old, it's not news. It's a blog.

Wednesday, March 21, 2007

Gonzalez Involvement in US Atty Firings, Pre-planning Discussions

Before the President, Gonzalez, Miers, and Roves signed off on the US Atty firing plan, there were discussions on privilege.

DOJ Staff assumed the discussions would be shielded and were concerned when the US Attorneys did not back down. The concern wasn't with the US Attorney performance, but with their original assumption that the plan would not be revealed.

They fatally miscalculated. Again.

* * *

Note: Content below assumes you have read this analysis of important, relevant DoJ E-mails in re US Atty firings.

- -

The inconsistent stories were never reconciled prior to the go ahead decision because the President, Miers, Rove, and Gonzalez underestimated the backlash as they did with the Iraq invasion.

Gonzalez has issued inconsistent statements and we enter into evidence his conflicting testimony. The Attorney General has a personal interest in blocking lawful inquiry into Geneva violations. Gonzalez is not considered a reliable witness and has no credibility.

* * *

The statutes, precedents, case law, and executive orders are not in the President's favor. Nixon shows that this claim of privilege is not absolute. Also, Reynolds does not absolutely allow privilege on national security unless the issues are substantially related to national security reasons. ORCON prohibits classification of evidence of illegal activity; or evidence of government mismanagement.

Gonzalez' problem -- as with the DOJ OPR being blocked from reviewing the NSA illegal activity -- was that he knew privilege was not being involved to hide a bonafide secret, but to thwart investigation of illegal activity.

As with DoJ OPR, Gonzalez responsibility was to have discussed with the agency head [himself] on an issue of investigation.

Before approving the plan, they would have walked through the steps to ensure they were fully protected. It is a secondary issue whether that belief was well founded; or whether they would or would not enjoy the protect they expected.

Let's consider an example. There are foreseeable things which would have to be planned for. No plan would have been approved, much less implemented, unless the foreseeable consequences and actions were considered. On issues of privilege, the agency head [Gonzalez] is required to consult with the Attorney General [himself] and the White House counsel [Miers]. This was done, as evidenced by the e-mail confirming they had been notified, were involved, and gave a go ahead:

when an agency head believes that a congressional information request raises substantial questions of executive privilege he is to notify and consult with the Attorney General and the Counsel to the President Ref

Before approving the US Attorney firing plan, the planning would have included the foreseeable risk assessment that Congress would find out, and that privilege would have to be invoked. It was well known that Members of Congress were expected to be opposed. The smearing of the US Attorneys was calculated to ensure there was minimal chatter and comparison of notes. The e-mails show GOP strategists in DoJ and the White House jointly crafted messages to manage the expected political opposition.

The DOJ Staff would not have considered raising the issue, much less implement the plan, unless they had full support; and the political-legal-communications experts would not have approved the retaliation unless:

A. They reviewed the risks;

B. They assigned a low probability to the risks;

C. Felt sure that they had legal cover to hide the problem;

D. They would have sufficient political support to shield themselves and the President.

Whether they did or did not do the above is irrelevant. It is foreseeable that, as outside and inside counsel considered the risks, the team raised the possibility of privilege would have to be invoked. Whether this claim of privilege would or would not succeed does not appear to have been factored into the planning; although privilege was considered, it was not expected to be a factor in 2005-6 before the GOP imagined they would lose control of Congress.

It is not credible that Miers and Gonzalez would be appointed to their positions unless it was perceived that they had legal experience necessary to put the GOP political objectives before all things. It is secondary whether that misplaced priority is or is not lawful.

The coordination before the US Attorney firing plan was put into place would have included an assessment of what was possible. Either legal counsel was reckless in not doing a complete assessment; or they did an assessment and miscalculated.

This nexus becomes irrelevant once the DoJ Staff publicly contradicted themselves under oath. It doesn’t matter who is telling the truth. More than one person has lied to Congress under oath to support a poorly coordinated, but common objective. It is presumed and is an adverse inference that illegal activity occurs to support other illegal activity.

- -

Remember what changed. They did not count on the following:

1. Loss of control of Congress;

2. Lawful interception of Staff counsel communications using methods the NSA cannot detect;

3. Leaks from the White House about ongoing discussions with outside counsel on issues that were supposedly not relevant;

4. Inconsistencies in the responses to simple questions would generate serious questions about the legality of the firings;

5. Revelations about the US Attorney firings and the GOP front companies;

6. Betrayal by GOP Members of Congress and White House staff who are cooperating with war crimes prosecutors;

7. Detection of illegal efforts to circumvent FISA, Geneva, and the Constitution;

8. Knowledge the President and Attorney General blocked the DOJ OPR from reviewing illegal DoJ Staff involvement with NSA, rendition, war crimes, prisoner abuse, and illegal retaliation against law enforcement;

9. Inability of GOP Members of Congress to account for the gaps in the Title 28 and Title 50 exception reports;

10. War crimes prosecutors understanding the relationship between funding flows from outside counsel in exchange for promised no-bid contracts.

* * *

Privilege does not shield the required legal steps. Rather, the legal requirements are presumed to have been followed.

Privilege hides the content of the information; it does not hide whether or not the law was or was not followed.

The prosecutor's trap for the Attorney General, Gonzalez, and President: Once the President was notified by Rove or Miers about the DoJ Staff plan detail:

___ What concern was raised about privilege;

___ How did the Attorney General resolve the issue given he had a personal stake in the matter; and

___ What evidence do the Attorney General and Miers have that the anticipated request for privilege was fully coordinated, accepted, and approved as part of the pre-coordination before the White House counsel approved the DOJ Staff plan to fire the US Attorneys.

* * *

Privilege doesn’t give the President's legal advisers a free blanket to assert something, but then reverse themselves claiming that they cannot discuss the matter. Refusing to deny something that should be denied is admissible. This President -- as with the FISA violations and DOJ OPR blocked investigations and Eastern European detention centers -- did not deny anything but openly asserted that the activity was lawful. It is illegal.

The President has openly asserted that he is claiming privilege for something that has been disclosed. A claim of privilege fails when the information has been inadvertently disclosed.

The issue of selective memory is one that cannot be believed. The real problem is that the stories have not been developed [as with Iraq WMD and FISA] because the President, Gonzalez, and Miers did not expect the US Attorneys to continue despite the planned smearing.

Once the President or anyone in the White House claims, as Rove has done, they have "vague" recollections of anything, they've fatally admitted that they're commenting on and refusing to deny a subject; and cannot claim they cannot discuss the issue. The issue is on the table.

It is a secondary matter whether he is or is not lying; or whether he has fabricated a story about who was or was not involved.

* * *

Congress is allowed to review the record, consider the totality of the circumstances, and make adverse inferences.

Arguably, the White House, Rove, and Miers agreement with Gonzalez and the DOJ Staff not to cooperate with the Congressional inquiry or subpoenas isn't relevant to the acquisition of any required information. If we presume that they were following what they were required to do to invoke a claim of privilege then they must have coordinated.

Here's the dilemma. Either they fully complied with the notification requirements on the expected Congressional challenges in re privilege and did plan; or they agreed to implement a plan without reviewing the foreseeable risks. Either way, they had to have an agreement before the go-ahead decision was issued, and acknowledged by the DOJ Staff.

It doesn't matter what they talked about: The confirmation that the DoJ Staff had a "go ahead" decision after coordinating with political, legal, and communications, means the President, Rove, Miers, and Gonzalez were on the same page. Staff counsel concerns with full support when both ways: Staff counsel wanted to make sure that those who needed to know were not blind sided; and the senior management including the President wanted to ensure the DOJ Staff had full support and were committed to see the plan implemented to it's logical conclusion.

However, if the President is arguing the opposite -- that he did not consult with the Attorney General or Miers on issues of privilege -- then the GOP Senate has a problem: Their man in the White House isn't making sound decisions, ignoring legal counsel, but pretending he's a lawyer. He's publicly asserted that he's going to make a decisions about not complying fully with a subpoena; yet this outcome would have been, or should have been, discussed before the go-ahead order was issued to the DOJ Staff.

Either the President is coordinating on illegal activity; or his staff is doing something which the President has not satisfactorily distances himself. He fatally took the middle road: Attempted, as with the Eastern European detention facilities and FISA violations, to assert the issue could not be discussed. The problem is that the issue has been disclosed and it is impossible to close the bard door after the DoJ Staff has burned down the barn. It's a secondary issue whether the horses are far away, or very far away. The President cannot close the barn door, and the horses are not available. They are wandering the Internet leaving presents.

* * *

Regardless what really happened, this is a problem for the GOP Senate to resolve: How much longer are they going to let the ruse of what happened get overshadowed by the reality of what must have happened for this plan to have been put into place:

A. Rove was involved with the pre-decision clearance;

B. The issue of privilege was mentioned and expected to shield the details;

C. The planning process included steps to coordinate with legal, communications, and political offices;

D. Those offices were coordinated with and did give their approval; and

E. The backlash against this effort was anticipated, but underestimated.

* * *

The record shows the legal office approved a plan. They expected that privilege would hide the deliberations related to the retaliation.

It does not matter that they did not realize that the effort would be discovered. It is foreseeable that an illegal effort would be detected.

Their error was to believe that they could remain above the law, that their effort to hide something would succeed, and that there would be no consequences.

Their problem was that they anticipated in 2005-6 that the GOP would retain control of Congress. Whether this was a real belief, or something Rove deluded people to believe so they would not turn on him remains to be understood.

Rove benefited by lying about the GOP support around the country: He maintained loyalty; he created the impression Congress would never look at the issue; and he could convince people that there would be no Congressional review of the matter when the US Attorney Firings was discussed in 2005 and 2006.

They didn't expect to be detected.

Rove is an attorney, fully knows what is involved, and could be disbarred.

* * *

___ Why was DoJ Staff mentioning the word "deliberative" in the communications, but not expecting the information to be shielded?

___ How can anyone believe that executive privilege was not discussed before legal and political reviewed and approved the issue?

___ What is the GOP leadership -- outside the White House -- got to say for itself when the DoJ Staff open memo shows there was legal review of the issue; but the President is attempting to apply privilege to something that has been disclosed?

___ What kind of non-sense is the GOP leadership attempting to ignore with this bunging on a simple legal issue?

___ How can anyone possibly believe that the President did not discuss his required involvement to invoke privilege before this retaliation plan was approved unless Miers, Gonzalez, and Rove understood [a] the full legal issues which may require privilege to be involved; and [b] they did have the President's agreement to invoke privilege to hide their involvement with the illegal activity?

___ Is the GOP leadership asking us to believe that the President does not understand when he is involved with illegal activity; and has discussed using his authority to hide evidence of illegal activity?

___ What is going to happen when DOJ OPR appears and reviews Gonzalez discussions to determine whether the Attorney General blocked DOJ OPR in the hope that executive privilege would shield detection of Gonzalez involvement with the illegal retaliation?

___ How much do the expect privilege to hide despite open admissions by outside counsel that they were aware of conversations related to moving prisoners to other countries for abuse in violation of Geneva?

* * *

Two Issues: Invoking Privilege and Title 28 Reporting

The burden under Title 28 is for the Attorney General to show not the content of the discussions, but to demonstrate that prior to the President invoking privilege that the Attorney General and White House counsel were involved with that decision. Without a Title 28 exception report, the Attorney General is communicating to Congress he is enforcing the law. Whether he is complying with or enforcing the law is a secondary issue.

* * *

We measure leadership by what they do or do not do. There were two opportunities for leadership to have acted; and DoJ Staff counsel gave plenty of warning what they were planning to implement. The only time the White House counsel and Attorney General would have had a chance to stop the planning was before the planning started or was implemented. Yet, the record shows that they were consulted; they did approve; and they did not stop the plan despite the concerns of detection or opposition.

It is reasonable to conclude:

1. The issues of Executive Privilege were discussed before the plan was implemented;

2. The DOJ Staff knew they needed Miers, Gonzalez, and Rove involved with the decision so they would not be surprised;

3. The discussions with the President well outlined the plan to retaliate against the Attorneys if they refused to silently go away;

4. The President, Gonzalez, Rove, and Miers jointly and allegedly illegally agreed to cooperate, put into effect, and coordinate on a plan to retaliate against US Attorneys for their efforts to shut down funding going to the GOP.

* * *

If anyone wants to argue that the above did not occur despite the legal requirement to coordinate on privilege, then this legal problem has not been documented as required in writing. Either:

A. The President agreed with illegal activity; or

B. The attorney general has failed to document the known failure to enforce the law; and/or

C. The required discussions -- between Miers, Gonzalez, and the President -- related to foreseeable privilege did not occur despite DoJ Staff getting approval to go ahead with their plan.


However, the President's response has not been shock as would be expected if he was blindsided, but defiant and asserting there is no problem as with the Eastern European detention centers and FISA violations. The means "C" above is not likely.

Gonzalez would have known that the decision not to follow this procedure -- that of coordinating on the issue of privilege before the President asserted there was privilege -- would mean there had to be a required Title 28 exception report. However, Gonzalez did not include this. The required notification under Title 28 does not exist. The standard requires written notification. Gonzalez didn't do this.

The lack of a Title 28 report from Gonzalez -- where there should be one related to his asserted "I wasn't involved" -- would fatally put him in a box with the President, White House counsel, and Rove:

A. There were documented coordinations;

B. The procedures require the President to consult with Gonzalez and Miers on the issue of privilege;

C. The President did say he would block the subpoenas and not allow testimony under oath;

D. The only way the President could invoke this privilege was if he had discussed the issue with Miers and Gonzalez before the decision to implement the plan; otherwise DoJ Staff would not have been given a green light by White House counsel;

E. Yet, despite the decision of the Attorney General to support the planned invocation of privilege, Gonzalez cannot explain why his asserted "I wasn't notified"-argument [in re the privilege discussions] was not documented to Congress; or why he wasn't enforcing the law mandating his involvement with that decision before the President raised the issue of privilege.

Options "A" and "B" are most likely: [A] The President and Gonzalez were involved with the pre-planning decision; but [B] Gonzalez has failed to file the required Title 28 exceptions report with Congress indicating his decision not to enforce the law against illegal retaliation.

* * *

It is secondary but noteworthy his decision not to investigate the failure to properly coordinate on issues of privilege before the President attempted to invoke privilege for something that cannot be protected. This decision not to investigate this second legal issue is another Title 28-exception requirement he has not documented in writing to Congress as required.

Once DoJ Staff reported they had a go ahead decision after [a] announcing a recommendations to coordinate with the political office; [b] receiving guidance to maintain momentum and ensure fully support; and [c] getting approval and no concerns from political, legal, and communications; and [d] taking the time to be concerned with, on a lesser matter, whether people were or were not getting involved and not blind sided.

It defies reason to suggest the Attorney General and President did not know, were not consulted, or were unaware. Their reaction indicates they are in denial; or they openly admit they are not surprised by anything, but asserting things are just fine. Small problem: They have no consistent story of what did or didn't happen despite DoJ Staff confirming they had [a] coordinated with legal-communcations-poliical; and [b] they got a go-ahead order for their plan.

___ If you were President and were not fully consulted on something that was illegal, and that illegal plan was put into effect and discovered, would you assert things were fine?

___ If you were President and fully involved with the decision to engage in illegal activity, would you have asserted that the activity was fine and there was no problem?

This President's reaction is not one of confusion, but emphatically asserting things are just fine. His response does not make sense given his claims that the issues are supposedly privileged, yet the issues are on the table and in the e-mail. He’s attempting to claim privilege for something that is not a communication between him and his staff; but between the DOJ Staff and White House counsel's office.

The only reason to claim privilege incorrectly, as he has done, was if the President is panicking. He has no legal defense, and cannot explain why the DOJ Staff got a "go ahead order" after political-legal-communications were coordinated with; and the White House counsel and Gonzalez should have been involved on the issues of privilege.

The President would have us believe that he's sure privilege applies; but if this privilege claim were real, it would only be credibly invoked after the consultations with the Attorney General and Miers.

Whether the President has received reckless, incompetent, or worthless legal advice from White House counsel, DoJ Staff, the attorney general, or outside counsel is meaningless. His public statements are not legally sound, but are fatal to his legal position. Bad legal advice does not cure a defective claim of privilege.

It is irrelevant that the legal advice came before or after the go-ahead decision. The DoJ Staff documents the legal-political-communications were involved as were Miers in the decision to proceed.

This President isn't going to make a move unless he discusses issues with political-legal-communications. We leave it for another day to explain why he nominated Miers for the Supreme Court.

* * *

Rove, Miers, Gonzalez, and the President are red herrings. Whether they do or do not testify is irrelevant.

The issue goes to the GOP Senate:

___ When did they know of the illegal effort;

___ Why did they not follow-up with Gonzalez;

___ When they looked at the gaps in the Title 28 exception reports, why didn't they notify the DOJ OPR/IG and US Attorney?

Answer: They retaliated against the US Attorneys, and did not cooperate with them.

The entire mess in the White house is a smokescreen from the real power issue in the Senate: The GOP cannot be sure that its GOP Senators are going to survive indictments for their failure to assert their 5 SUC 3331 oath of office in re the Title 28 violations they have known about but not investigated.

* * *

The other lines of evidence are interesting, but merely confirm:

A. The legal process was in place;

B. The required legal checks to invoke privilege were coordinated before the plan was implemented;

C. White House counsel, Gonzalez, and Rove -- all being attorneys -- knew, or should have known the legal requirements which would have been coordinated, approved, and understood well before the plan was put into effect or approved;

D. The issues of privilege would have had to have been raised, discussed, and well contemplated before anyone in the political, legal, or communications area would consent to endorse a plan;

E. All the key players fully expected the retaliation to succeed, did not expect the US Attorneys to resist, and underestimated the extent to which their fatal disclosures would be used against them.

F. The reason the stories are not adding up is that they did not think through the longer lines of evidence required to take this plan to its logical conclusion.

* * *

Some has suggested that these issues of privilege can only be litigated in the DC Court by US Attorneys. This is not correct.

Any of the State Attorney Generals may lawfully bring suit against the President. The issue of whether the US Attorneys will or will not "allow" this case to go forward is irrelevant.

Even if the US Attorneys attempt to block the case, each of the 50 states attorney generals has the authority and power to prosecute the President, Miers, Rove, Gonzalez, and others for their alleged effort to illegally retaliate against US Attorneys who attempted to enforce the law.

These issues are issues of interest to the States. When the President and others agree illegally to not enforce the law, then the US government has denied the States of their guarantee to an enforcement mechanism. This is the basic requirement for the States in their guaranteed access to a republican form of government.

* * *

As you dig into the issues, take a broad view of the legal issues. The legal issues can be proven and argued without spending time on the details.

However, it is important to look at the detailed e-mail messages to understand the inner workings of what has failed within DOJ and the White House.

The issue is that they are attempting to implement GOP-related rules on top of the existing DOJ operating procedures. The two do not match.

The e-mails will confirm for you the political rules were trumping the legal requirements; and the resulting management issues are symptoms of this double-rules system.

Again, the e-mails are evidence of this management problem. All legal arguments required to support a conviction can be supported by the open record, making adverse inferences.

Whether Rove, Miers, or Gonzalez do or do not utter another word is irrelevant. The issue is whether the GOP Senate accepts their man in the White House no longer has any credibility.

The President is now irrelevant.

Time to turn your attention to the GOP Senate and make them choose: Either prosecute the President; or prepare to be defeated in court. We're not waiting until 2008. These Members of Congress may be legally targeted for 5 USC 3331 violations now.

The State prosecutors have the authority to indict, prosecute, and legally target all GOP Senators in Congress for their alleged complicity with this illegal retaliation against law enforcement.

The evidence is simple: Their refusal to document in the Title 28 and Title 50 exception reports their concerns with what is happening; and no evidence, as required, showing they fully asserted their oath.

The President, DoJ Staff counsel, and GOP are no longer relevant. The question is whether the GOP accepts We the People working through our states may lawfully bring indictments aging the GOP Staff counsel in Congress and Executive Branch.

The evidence exists. They cannot destroy it. And reasonable grand juries can make adverse inferences to lawfully indict the complicit members of Congress who remain involved, and have not removed themselves.

They need to choose whether they want to continue putting their illegal rebellion above the rule of law. They don't have that option anymore. The Constitution never left. It does not have to be restored.

We the People spoke in 1789 of what we expected. The President, Attorney General, White House counsel, and DOJ Staff have defied their oaths. The evidence is clear, overwhelming, and something people can easily understand.

The question turns to the GOP leadership in the Senate: Are they going to step up to the plate and accept that there are Title 28 exception reports they failed to review; and what involvement they had with retaliating against US Attorneys who had the GOP on their radar.

We the People are the radar. Time for the GOP leadership to have a heart to heart discussion: Are you going to continue with your illegal rebellion; or do you want more examples of your rebellion. We the People have infinite resources, time, and support to prevail over, and lawfully put the GOP in a smaller box.

Time for the GOP leadership to decide who they want to put in the box. Someone is going in. Unless they cooperate, they stand a chance of getting stuffed into that box first.

They wished this.