In a document dated August 27, 2009, the government responded to a “Motion for a New Trial Based on Newly Discovered Evidence” that had been filed by Siegelman and codefendant Richard Scrushy.

Prosecutors’ response contains statements that are clearly false related to several critical issues. Specifically, prosecutors make numerous misstatements about Karl Rove’s Congressional testimony. They also mischaracterize the contents of affidavits that were designed to counter the sworn statements of Alabama attorney and whistleblower Jill Simpson.

Regarding Rove, prosecutors state that the former Bush White House adviser denied contacting anyone at the Justice Department regarding the Siegelman case. In fact, Rove did no such thing. He either contradicted himself or used hedge language (“not that I recall,” “not to my knowledge”) in all of his answers to questions about his possible involvement in the Siegelman case.

Early in his testimony, Rove did deny contacting anyone at the Justice Department about the case. But when asked if he had contacted Noel Hillman, then head of the Public Integrity Section (which is part of the Justice Department), Rove hedged: “No, not that I recall.”

And as we reported on August 13, Rove certainly did not deny that someone working for him might have contacted the Justice Department regarding the Siegelman case:

When asked if anyone from the White House Office of Political Affairs (OPA), Republican National Committee (RNC), or Republican Governors’ Association (RGA) communicated with the Justice Department, Rove’s answer is “not to the best of my knowledge.”

Under questioning from House Judiciary Committee Counsel Elliot Mincberg, Rove also did not deny that he or someone working for him might have contacted any number of key officials in Alabama, including those working for the Justice Department:

Mincberg goes on to ask if Rove or anyone from any GOP-connected groups had communicated about Siegelman with:

* Any Alabama U.S. attorney’s office;

* The Alabama attorney general’s office or any other state law-enforcement agency;

* Bill Canary, head of the Business Council of Alabama;

* Bob Riley, Rob Riley, or anyone in the Riley administration; or

* Members of the media or press.

Rove’s answers were “not that I’m aware of” or “not that I recall.”

As we noted in our previous post, Mincberg hit Rove with a couple of “money questions,” which covered the entire Siegelman episode. Here was one of them:

Q Again, in the period of time between Governor Siegelman’s election and the end of 2002, did you or anyone working for you ever have any communications with anyone about a possible criminal investigation, prosecution, or illegal acts by Governor Siegelman?

A Not that I’m aware of.

The bottom line? Did Karl Rove, as the government contends, deny having contact with anyone at the Justice Department regarding the Siegelman case? Not even close.

What about efforts to counter Jill Simpson’s testimony? The government is deceitful about that, as well.

In its response to the Siegelman/Scrushy motion, prosecutors state:

The Conyers Report itself acknowledges that the only other parties who should have firsthand knowledge of these allegations-Rob Riley, Bill Canary, and Terry Butts, as well as another person present with Riley on November 18, 2002, Matt Lembke-have all denied Simpson’s accusations including that such a phone conversation ever occurred, in sworn affidavits submitted to the House Committee.

In fact, Bill Canary presented no sworn statement to the House Committee. Riley, Butts, and Lembke did present affidavits, but they did not deny Simpson’s allegations or that a phone call took place.

Here is how we characterized the Riley/Butts/Lembke affidavits in a post dated October 23, 2007:

All three affidavits have a fair amount of what I would call “hedge” language in them–

Riley
“I have no memory of being on a phone call . . .”

“I do not believe a phone call occurred . . .”

“I do not believe that I have ever met or spoken with Judge Mark Fuller . . .”

Butts
“. . . nor do I recall, any conference call occurring with Ms. Simpson . . . ”

“As I recall, none of us were ever outside each other’s presence on that day . . . ”

“Again, I neither recall any such call, nor do I believe any such call/conversation . . . ever took place.”

Lembke
“I do not recall the phone call that Ms. Simpson claims took place between her . . . ”

“I do not believe that I was out of Justice Butts’ and Rob Riley’s presence for 11 consecutive minutes . . . “

So is the government’s statement accurate–that four key people denied Jill Simpson’s allegations and denied that a phone call even took place? Again, not even close.

To use blunt language, federal prosecutors resort to repeated lies in their efforts to prevent a new trial in the Siegelman/Scrushy case. And the lies are not related to an arcane, minor element of the case. The false statements pertain to the Siegelman/Scrushy claims of a selective prosecution–the very heart of the matter.

The government notes that the two essential elements of such a claim are: (1) Discriminatory effect (a showing that the government “has failed to prosecute others who are similarly situated to the defendant”); and (2) Discriminatory intent.

The falsehoods noted above come in the section where prosecutors try to counter the Siegelman/Scrushy claims that the government acted with discriminatory intent.

A reasonable person might ask: Why would prosecutors resort to lying in their argument about discriminatory intent in the Siegelman/Scrushy matter?

A reasonable person might answer: Maybe it’s because prosecutors know they acted with discriminatory intent and don’t have a legitimate answer for it.

Roger Shuler resides in Birmingham, Alabama. A 1978 graduate of the University of Missouri, Shuler worked 11 years as a reporter and editor for the Birmingham Post-Herald before working 19 years in several editorial positions at the University of Alabama at Birmingham (UAB). He blogs at Legal Schnauzer.

Panetta issued a statement in advance of the release later Monday of a critical 2004 inspector general’s report on the agency’s torture program. Panetta says the horrific details of torture and abuse contained in the report “is in many ways an old story” and that the interrogation methods used against detainees were approved in Justice Department legal memoranda.

The outlines of prior interrogation practices, and many of the details, are public already,” Panetta said. “The use of enhanced interrogation techniques, begun when our country was responding to the horrors of September 11th, ended in January. For the CIA now, the challenge is not the battles of yesterday, but those of today and tomorrow. It is there that we must work to enhance the safety of our country. That is the job the American people want us to do, and that is my responsibility as the current Director of the CIA.

I make no judgments on the accuracy of the 2004 IG report or the various views expressed about it. Nor am I eager to enter the debate, already politicized, over the ultimate utility of the Agency’s past detention and interrogation effort. But this much is clear: The CIA obtained intelligence from high-value detainees when inside information on al-Qa’ida was in short supply. Whether this was the only way to obtain that information will remain a legitimate area of dispute, with Americans holding a range of views on the methods used. The CIA requested and received legal guidance and referred allegations of abuse to the Department of Justice. President Obama has established new policies for interrogation.

His statement was disseminated to reporters hours after ABCNews.com reported that Panetta got into a “profanity-laced screaming match” with a senior White House staff member over reports that Attorney General Eric Holder was considering the appointment of a special counsel to probe the CIA’s use of torture against “war on terror detainees.”

According to intelligence officials, Panetta erupted in a tirade last month during a meeting with a senior White House staff member. Panetta was reportedly upset over plans by Attorney General Eric Holder to open a criminal investigation of allegations that CIA officers broke the law in carrying out certain interrogation techniques that President Obama has termed “torture.”

ABCNews.com added that Panetta had threatened to resign over the possibility of a criminal investigation involving agency interrogators.

Panetta’s about-face stands in stark contrast to statements he made in a series of op-eds in the Monterey County Herald and other publications last year. In a March 8, 2008, column titled, “Americans Reject Fear Tactics,” Panetta wrote that “all forms of torture have long been prohibited by American law and international treaties respected by Republican and Democratic presidents alike.”

“Our forefathers prohibited ‘cruel and unusual punishment’ because that was how tyrants and despots ruled in the 1700′s. They wanted an America that was better than that. Torture is illegal, immoral, dangerous and counterproductive. And yet, the president is using fear to trump the law.”

Here is Panetta’s statment in full hours before the Justice Department released the CIA IG torture report and other documents.

Message from the Director: Release of Material on Past Detention Practices

Today, as part of a number of Freedom of Information Act cases, the government is responding to court orders to release more documents related to the Agency’s past detention and interrogation of foreign terrorists. The CIA materials include the 2004 report from our Office of Inspector General and two papers-one from 2004 and the other from 2005-that discuss the value of intelligence acquired from high-level detainees. The complete package is hundreds of pages long. The declassification process, a mandatory part of the proceedings, was conducted in accord with established FOIA guidelines.

This is in many ways an old story. The outlines of prior interrogation practices, and many of the details, are public already. The use of enhanced interrogation techniques, begun when our country was responding to the horrors of September 11th, ended in January. For the CIA now, the challenge is not the battles of yesterday, but those of today and tomorrow. It is there that we must work to enhance the safety of our country. That is the job the American people want us to do, and that is my responsibility as the current Director of the CIA.

My emphasis on the future comes with a clear recognition that our Agency takes seriously proper accountability for the past. As the intelligence service of a democracy, that’s an important part of who we are. When it comes to past detention and interrogation practices, here are some facts to bear in mind on that point:

· The CIA itself commissioned the Inspector General’s review. The report, prepared five years ago, noted both the effectiveness of the interrogation program and concerns about how it had been run early on. Several Agency components, including the Office of General Counsel and the Directorate of Operations, disagreed with some of the findings and conclusions.

· The CIA referred allegations of abuse to the Department of Justice for potential prosecution. This Agency made no excuses for behavior, however rare, that went beyond the formal guidelines on counterterrorism. The Department of Justice has had the complete IG report since 2004. Its career prosecutors have examined that document-and other incidents from Iraq and Afghanistan-for legal accountability. They worked carefully and thoroughly, sometimes taking years to decide if prosecution was warranted or not. In one case, the Department obtained a criminal conviction of a CIA contractor. In other instances, after Justice chose not to pursue action in court, the Agency took disciplinary steps of its own.

· The CIA provided the complete, unredacted IG report to the Congress. It was made available to the leadership of the Congressional intelligence committees in 2004 and to the full committees in 2006. All of the material in the document has been subject to Congressional oversight and reviewed for legal accountability.

As Director in 2009, my primary interest-when it comes to a program that no longer exists-is to stand up for those officers who did what their country asked and who followed the legal guidance they were given. That is the President’s position, too. The CIA was aggressive over the years in seeking new opinions from the Department of Justice as the legal landscape changed. The Agency sought and received multiple written assurances that its methods were lawful. The CIA has a strong record in terms of following legal guidance and informing the Department of Justice of potentially illegal conduct.

I make no judgments on the accuracy of the 2004 IG report or the various views expressed about it. Nor am I eager to enter the debate, already politicized, over the ultimate utility of the Agency’s past detention and interrogation effort. But this much is clear: The CIA obtained intelligence from high-value detainees when inside information on al-Qa’ida was in short supply. Whether this was the only way to obtain that information will remain a legitimate area of dispute, with Americans holding a range of views on the methods used. The CIA requested and received legal guidance and referred allegations of abuse to the Department of Justice. President Obama has established new policies for interrogation.

The CIA must also keep its focus on the primary responsibility of protecting the country. America is a nation at war. This Agency plays a decisive role in helping the United States meet the full range of security threats and opportunities overseas. That starts with the continuing fight against al-Qa’ida and its sympathizers. There, alongside all its other contributions, the CIA is helping our government chart a new way forward on interrogation, one in keeping with the President’s Executive Order of January 22nd. You, the men and women of this great institution, do the hard work and take the tough risks that intelligence and espionage demand.

I am very proud of what you do, here and abroad, to protect the United States. Your skill, courage, commitment, and focus on mission make the CIA indispensable to the nation. It is a privilege to serve with you.

Leon E. Panetta

Jack Cloonan, former FBI security and counterterrorism expert From 1996 to 2002, Cloonan was the senior case agent assigned to the "Bin Laden Squad" in the New York Office of the FBI.

Support for a wide-ranging criminal investigation into the Bush administration’s use of torture has grown to include a former top FBI interrogator and a career military intelligence officer with more than two decades of experience conducting interrogations.

Jack Cloonan, a former FBI security and counterterrorism expert who was assigned to the agency’s elite Bin Laden Unit, Col. Steve Kleinman, a career military intelligence officer recognized as one of the Defense Department’s most effective interrogators, and Matthew Alexander,who was the senior interrogator for the task force in Iraq that tracked down al-Qaeda-in-Iraq leader Abu Musab al-Zarqawi in 2006, said ignoring clear-cut evidence of interrogation-related crimes would encourage more law-breaking in the future. Alexander uses a pseudonym for security reasons.

Cloonan and Kleinman, who conducted interrogations of terror suspects after 9/11, disputed claims by former CIA Director Michael Hayden and Republican lawmakers that a criminal investigation would damage intelligence gathering and could lead to another 9/11-type attack on the United States.

In an interview, Cloonan and Kleinman said Hayden and the lawmakers were sounding “false alarms” in an effort to keep serious crimes from being exposed. “What this is really about is cover your ass,” Cloonan said. “To suggest [intelligence gathering] will come to a screeching halt if there were an investigation is not accurate.”

Last Wednesday, nine Republican senators sent a letter to Attorney General Eric Holder saying a criminal investigation into the CIA’s interrogation practices would jeopardize the “security for all Americans, “chill future intelligence activities,” and could “leave us more vulnerable to attack.”

A day later, at a panel discussion held at the National Press Club, Hayden said an investigation, “no matter how narrowly defined” will “start pulling threads.

“Continuing looking back, continuing to pull these good people through a knothole will teach people never to play to the edge, will teach people ‘yeah I got an opinion from Justice and I know the president wants me to do it and the director [of the CIA] says it’s a good thing and I know I’m capable of doing it but I just don’t think so.’ We will teach timidity to a workforce we need to be vigorous and active. And no matter how narrowly defined this look back might be it’ll start pulling threads, you’ll have a significant number of agency folks being pulled through this process, in my mind, to no good,” he said.

Cloonan and Kleinman said Hayden and the GOP senators were sounding “false alarms” in an effort to keep serious crimes from being exposed and prosecuted. Cloonan, who retired in 2002 after more than 25 years in the FBI, said neither he nor the intelligence community believes that an investigation into torture will result in a threat to national security.

“What this is really about is cover your ass,” Cloonan said about the senators’ letter. “To suggest [intelligence gathering] will come to a screeching halt if there were an investigation is not accurate.”

Kleinman, who most recently served as a senior adviser on a Director of National Intelligence-commissioned study on strategic interrogation, agreed.

“I respectfully disagree profoundly with the assessment that any effort to look back would make us more vulnerable, Kleinman said. “In fact, we have to look back to show our utmost vulnerabilities.

“I’ve had the honor of testifying before four committees of Congress and I am always astounded at the profound political partisan politics that surround this issue. I’m a professional interrogator I have 25 years of experience in this and I don’t have any concern whatsoever that an investigation into how we conducted ourselves since 9/11 would in any way undermine our ability to continue gathering intelligence.”

Furthermore, Kleinman and Cloonan believe their colleagues in the intelligence community share their views. But many are unable to speak out publicly.

Steven Kleinman is a military intelligence officer recognized as one of DoD's most effective and prolific interrogators with service as an interrogator, an interrogation team chief, and as the senior advisor on interrogation to the commander of a special operations task force in Operations Just Cause, Desert Storm, and Iraqi Freedom. He is a former director of the Air Force Combat Interrogation Course and most recently served as a senior advisor on a Director of National Intelligence-commissioned study on strategic interrogation.

“I have friends in the intelligence community who won’t speak up because to do so is almost a career ender,” Kleinman, who has more than two decades of experience in the field of interrogation, said. “Sometimes they’re in a secured status where they couldn’t admit to their job anyway. The one’s who I talked to who are experienced they’re right on board with this” possible investigation.

Kleinman and Cloonan added that the outside contractors and the interrogators who lacked the training and experience are the ones who saw the use of torture as a means to gain valuable information. Moreover, they are likely the ones who fear an investigation.

“The people who are true professionals don’t see anything wrong with an investigation,” Kleinman said. “I conducted interrogations in three separate military campaigns. I can look back if they called me in tomorrow and I would not even be thinking about getting liability insurance.

Cloonan, Kleinman and Alexander sent a letter Friday to the chairs of the House and Senate Intelligence and Judiciary Committees calling for the creation of a bipartisan commission to “assess policy making that led to use of torture and cruelty in interrogations.”

They wrote that if Holder appoints a special counsel it will mark an “important step forward” by reaffirming “the enduring power of our system of checks and balances.”

“The prohibition on torture in this country is unequivocal,” Cloonan, Alexander and Kleinman wrote. “To ignore evidence of criminal wrongdoing would incentivize future breaches of law.”

However, they added that an investigation and the potential for prosecutions “of individuals who violated anti-torture statutes alone…will not prevent policy makers from making similar mistakes in the future.”

“At the heart of the policy decisions buttressing interrogators’ use of torture and cruelty lay closed processes that have yet to be scrutinized with cool heads and wise counsel. Instead of putting in place the best policies for protecting American lives, policy makers ignored the advice of experienced interrogators, counterterrorism experts and respected military leaders who warned that using torture and cruelty would be ineffective and counter-productive.”

House Judiciary Chairman John Conyers and his counterpart in the Senate, Patrick Leahy, have both advocated for a truth commission to look into the use of torture, and other abuses, that took place during the Bush administration’s tenure. Leahy said he would not follow through on his plan without the support of Republicans, which he does not have, and Conyers’ proposal never even attracted the support of Democrats. President Obama had told the lawmakers in closed-door meetings earlier this year that he did not support those efforts.

But Kleinman, Cloonan, and Alexander said that’s a mistake. In their letter, they wrote that the path the U.S. chose to take, specifically related to interrogations, “came with heavy costs.”

“Key allies, in some instances, refused to share needed intelligence, terrorists attacks increased world wide, and al Qaeda and like-minded groups recruited a new generation of Jihadists,” they wrote.

“A nonpartisan, independent commission with subpoena power should assess the deeply flawed policy making framework behind the decision to permit torture and cruelty. Our system of checks and balances is designed to produce sound policy decisions which advance our strategic interests and are in accordance with our core values of due process.

“Many important decisions that were made during the Bush administration were done so without the consent and the advice of key Congressional leaders, Department of Justice officials, and other officials with the expertise to provide informed thinking and critical analysis. An independent commission can present recommendations for fixing this process going forward. Reviewing our policies and actions concerning detention and treatment of detainees after 9/11 will strengthen our system of checks and balances so that when faced with the next challenge, we get it right.”

Kleinman said “looking back” is not just a human rights matter.

“We absolutely have to look back otherwise if we’re attacked again or we get into a conventional war we run the risk of the same problems. It’s not just human rights. It’s operational. We squandered opportunities to collect vital intelligence” because the U.S. government chose to use torture.

Kleinman said he was “disappointed” with an op-ed column CIA Director Leon Panetta published in the Washington Post urging lawmakers to “move on” from talk of investigations and to resist focusing on the past.

“Every world class intelligence organization look at where they come from to get better,” Kleinman said. “I think it’s critical. A lot of people say this is a witch hunt. I think they’re wrong.”

No Actionable Intelligence

Cloonan and Kleinman also doubt claims, like those leveled by Dick Cheney, that the use of torture produced actionable intelligence, the type that helped prevent another terrorist attack on U.S. soil and “saved hundreds of thousands of lives,” to quote the former vice president.

“The ticking time bomb scenario is great for books and television but it didn’t exist. There wasn’t a ticking time bomb. Gen. [Michael] Hayden and Vice President Cheney are making this argument that nobody I know of thinks is true. They say they got substantial information from [Khalid Sheikh Mohammed” through torture. But Mohammed gave up “information that everybody already knew. At least on the FBI side. There was nothing new there. [The FBI] would have heard about it if his” torture produced valuable intelligence.

Alexander, who published a book about the capture and interrogation of Zarqawi titled How to Break A Terrorist: The U.S. Interrogators Who Used Brains, Not Brutality, to Take Down The Deadliest Man in Iraq, agreed.

In an interview last December with Jon Stewart, host of the The Daily Show, Alexander said he “never saw coercive methods [pay off]…When I was in Iraq, the few times I saw people use harsh methods, it was always counterproductive.”

“The person just hunkered down, they were expecting us to do that, and they just shut up,” he said. “And then I’d have to send somebody in, build back up rapport, reverse that process, and it would take us longer to get information.”

Matthew Alexander led an interrogations team assigned to a Special Operations task force in Iraq in 2006. Alexander personally conducted over 300 interrogations and supervised over 1,000 more. It was his team of interrogators that successfully tracked down Abu Musab al-Zarqawi, the leader of al-Qaeda in Iraq.

Cheney claims he has a file that contains classified smoking-gun documents that will show that torture staved off an imminent terrorist attack. Those documents may be released Monday along with a declassified version of a 2004 CIA inspector general’s report on the agency’s torture program that raised doubts about the legality of the methods used. The report says the CIA conducted mock executions and threatened a high-value detainee with a gun and power drill.

Cloonan said he had a “long conversation” with members of the Senate Intelligence Committee after he testified before the panel last year and was told that there isn’t a smoking-gun document that will show torture was effective on any of the high-value detainees who were brutally tortured. He said soon the public will find that it out too.

“I think at a minimum you’ll see a third party review that it’s ambiguous at best,” Cloonan said. He added that the best way to get “actionable intelligence is rapport building. It’s the only way.

“Unfortunately, a lot of time and effort was squandered” by using coercive methods. “There were a lot of interrogators—contractors—who would not take no for an answer and and wouldn’t accept that these detainees did not know anything. They stumbled. They resorted to the easiest means. They were being pressured.”

In a stunning reversal, Hayden, who has said that torture, or “enhanced interrogation” methods, thwarted attacks admitted during his panel discussion at the National Press Club, that the torture of high-level detainees didn’t stop imminent attacks, but was successful “in terms of our learning of the basic infrastructure of al-Qaeda and then enabling the agency counterattack against both the infrastructure and the leadership of al-Qaeda.”

Hayden, who said he “pushed back” on the release of the report, added that in the 200-page document there are a mere “half-a-dozen paragraphs that talk about the success of the [torture] program” from the perspective of learning about the way al-Qaeda operates.

Hayden added that report has been “down on the Hill” since 2004 and available to Congress since 2006 so “why would the release of this report prompt us to have a special prosecutor and any other kind of activity? I just think it’s destructive of the agency and unfair to the good people who did what they did out of duty not out of enthusiasm and did what the nation asked them to do.”

CIA IG Report

Kleinman said the news reported over the weekend by several publications that the CIA’s IG report will show that agency interrogators conducted a mock execution, brandished a gun and a power drill during the interrogation of at least one detainee underscores how haphazard the intelligence gathering process turned out to be and why the policies that resulted in such horrific acts warrants a thorough public vetting.

“I defy anybody in the intelligence community to bring forward the research, the thoughtful objective analysis that purports to support that mock executions is a consistent and effective means of getting accurate information from people,” Kleinman said. “Show me the studies that say causing a great deal of fear is consistently successful in getting useful information. Because there won’t be.

“What people are doing is they’re just scrambling because they don’t know what else to do. They’re scrambling for some sort of technique and they’re just using things that they think ‘well that will scare me so it must scare them. It would make me talk so it must make them talk.’ Sure, they’ll talk. But they’re talking because they are afraid they are going to die. And they will say anything to keep from dying.”

I reported earlier Wednesday about Karl Rove’s mysterious reference to an Alabama lawyer named McDonald and wondered if it provided any clues regarding the prosecution of former Alabama Governor Don Siegelman.

A source said the reference probably was to Alabama businessman and University of Alabama Board of Trustees member Sidney L. McDonald. But a second source says the reference probably was to Mobile lawyer Matthew C. McDonald.

Several published sources have connected Matthew McDonald to Rove, so it appears Matthew is the “mystery McDonald,” not Sid.

Source No. 2 says Matthew McDonald might be related to Sid McDonald, possibly a nephew. And like Sid, Matthew has solid ties to the University of Alabama. He earned his law degree there and served on the editorial board for the Alabama Law Review.

Matthew McDonald perhaps is best known for his role in the tort-reform movement. He is held in high regard by the Foundation for Fair Civil Justice, which deemed him a “legal reform champion” and stated:

(Matt) has been especially active in the southeastern United States, both as general counsel of the Alabama Civil Justice Reform Committee, and as the widely recognized principal proponent of lawsuit reform laws passed in 1987 and 1999 in a region notorious for massive damage awards.

Matt also worked closely on the successful Alabama Supreme Court races from 1994 through 2002 that saw the election of fair and balanced justices to that court.

That last paragraph says a lot about McDonald’s connections to Rove. Those connections were made clear in a 2007 New York Times article:

An associate of Mr. Rove’s in the state, Matthew C. McDonald, a Mobile lawyer, said Mr. Rove had maintained at least a passing interest in Alabama affairs. The interest dated back to his pivotal role as a political consultant here in the 1990s, when he helped shift the state’s supreme court to the Republicans. Mr. Rove opened an office in Montgomery, and would fly in and out regularly.

Our earlier post was off base about Rove’s testimony and its possible connections to the University of Alabama. This latest information perhaps says something important about Rove’s mindset during his testimony.

Rove appears to have long-standing ties to Matthew McDonald, but “Bush’s Brain” could not recall his Alabama colleague’s first name, or whether he lived in Mobile or Birmingham? Does that say something about Rove’s level of candor throughout his Congressional testimony?

And here is the important point: Rove himself has identified Bill Canary, Kelley McCullough Robertson, and Matthew McDonald as three key contacts in Alabama. If a real investigation ensues, will it include an examination of the phone and e-mail communications of those three folks–along with others in Alabama who probably stayed in touch with Rove?

Do Canary, Robertson, and McDonald have information that will unlock the truth behind the Don Siegelman case–and the abuse of our Department of Justice during the Bush administration?

Below is Mr. Shuler’s report published earlier Wednesday.

One of the most curious moments in Karl Rove’s recent testimony about the Don Siegelman case came when the former Bush White House adviser was asked about his primary contacts in Alabama.

Rove mentioned two familiar names–William Canary, head of the Business Council of Alabama, and Kelley McCullough Robertson, former Southeast political director for the Republican National Committee and state director for Karl Rove & Co.

Almost as an afterthought, Rove threw out a third name–a “lawyer” named McDonald. Strangely, Rove could not seem to remember the person’s first name or hometown.

Which raises this question: Who in the heck is this McDonald person?

A source with strong knowledge of Alabama politics tells Legal Schnauzer that Rove probably was referring to Sidney L. McDonald, a prominent businessman from Town Grove, Alabama, and founder of DeltaCom Long Distance Services, the largest Alabama-owned telecommunications company.

McDonald has served in both the Alabama House of Representatives and the Alabama Senate and was one of the first members of the Alabama Commission on Higher Education (ACHE).

Perhaps of most interest here at Legal Schnauzer is this: McDonald has served on the University of Alabama Board of Trustees since 1992. That’s the outfit that oversees the University of Alabama at Birmingham (UAB). It’s also the outfit that almost certainly either pushed for, or approved of, my unlawful termination in May 2008.

McDonald now is an emeritus member of the board. But he was president pro tempore when the board hired current UAB president Carol Garrison in 2002. Garrison, of course, was in charge at UAB when I was unlawfully terminated and also has seen a lengthy string of human-resources problems surface on her watch.

Interestingly, Garrison was hired in the aftermath of a major HR headache–the forced resignation of previous UAB president W. Ann Reynolds, who wound up suing the Board of Trustees for age and gender discrimination. McDonald said at the time that discrimination played no role in Reynolds’ ouster. But Reynolds wound up receiving a nifty $475,000 settlement for her troubles.

One other note: McDonald also played a major role in the hiring of Malcolm Portera, the current chancellor of the University of Alabama System. Portera just happens to be a proud member of the Business Council of Alabama’s board of directors, which is run by Karl Rove’s close friend and ally, Bill Canary.

Our source notes that McDonald is not a lawyer, but he is close to the Alabama Republican Party and almost certainly is the person to whom Rove was referring.

If our source is correct, let’s consider what that might mean for our Legal Schnauzer story:

* A trusted source for Karl Rove serves on the University of Alabama Board of Trustees;

* Said source hired a chancellor who now serves on Bill Canary’s business-council board;

* Said source was president of the board when it hired Carol Garrison as UAB president;

* Your humble correspondent, a 19-year UAB employee at the time, happened to be writing a blog critical of the Bush Justice Department (on my own time), which we now know was hugely and corruptly influenced by Karl Rove;

* Carol Garrison, a virtual lapdog for Karl Rove’s trusted Alabama source, OKed my unlawful termination.

So Karl Rove’s Congressional testimony raises a number of questions that hit awfully close to home:

* Is the University of Alabama Board of Trustees essentially run by a bunch of Rove-influenced right wingers?

* Did Karl Rove’s apparent ties to Sid McDonald have something to do with my unlawful termination?

* If Karl Rove is found to have corruptly influenced the Don Siegelman prosecution, did a member (or members) of the University of Alabama Board of Trustees play a role in it?

* Will Congressional investigators present followup questions to Rove in order to determine the exact identify of this “McDonald” individual?

* If it is Sid McDonald, will investigators check his phone and e-mail records to see what communication he might have had with Rove regarding the Siegelman case and other matters? Could Sid McDonald be called to testify before government investigators?

* Would such an investigation reveal a right-wing conspiracy that runs throughout the University of Alabama System?

* Exactly how much influence do Karl Rove and Bill Canary have on the University of Alabama Board of Trustees?

As you can see, these questions are serious–they are not amusing in the least. But reading the testimony where Rove let the McDonald name slip is downright comical. It’s almost as if “Bush’s Brain” got bored or lazy or both and inadvertently tossed out a name that wasn’t supposed to be revealed. Then Rove immediately began to back track, suddenly unable to remember McDonald’s name, hometown, gender . . . you name it.

Here is the “McDonald” segment of Rove’s testimony:

Q Now you referred a few moments ago to contacts through friends and associates in Alabama, who would those be?

A Well, the person who ran my firm in 2000, Kelley McCullough, now Kelley McCullough Robertson, who came to Washington. She did not live in Alabama, but kept in touch in Alabama politics, and a lawyer in Birmingham — or in Mobile, named McDonald, you know, friends. I might have talked to Bill Canary, who is the president of Alabama Business Association, but I can’t recall.

Elliot Mincberg, counsel for the U.S. House Judiciary Committee, let the McDonald reference slide right on by. Maybe it’s time somebody checks into it.

Roger Shuler resides in Birmingham, Alabama. A 1978 graduate of the University of Missouri, Shuler worked 11 years as a reporter and editor for the Birmingham Post-Herald before working 19 years in several editorial positions at the University of Alabama at Birmingham (UAB). He blogs at Legal Schnauzer.

Last week, the House Judiciary Committee released more than 700 pages of on-the-record interview transcripts of Karl Rove and Harriet Miers related to their roles in the firings of nine U.S. Attorneys and the Bush administration’s politicization of the Department of Justice.

During the course of his interview with the committee, Rove was asked about contacts he had with Chris Christie, the Republican candidate for governor of the state.

Specifically, Rove was asked whether he or anyone at in the Office of Political Affairs had any communications with Christie or his office after he started as U.S. Attorney.

Rove responded:

I talked to him twice in the last couple of years, perhaps one time while I was at the White House and once or twice since I left the White House, but – not regarding his duties as U.S. Attorney, but regarding his interest in running for Governor, and he asked me questions about who – who were good people that knew about running for Governor that he could talk to.

The Hatch Act prohibits federal employees from running for the nomination or as a candidate for election to a partisan political office. Employees are barred from any action that can reasonably be construed as evidence an individual is seeking support for or undertaking an initial campaign to secure a nomination or election to office. Prohibited activities include canvassing or soliciting support as well as meeting with individuals to plan the logistics and strategy of a campaign.

Rove’s statements demonstrate that while Christie was the U.S. Attorney, he met with individuals to plan the logistics and strategy of a campaign and to seek support in his efforts to secure the Republican nomination for governor in violation of the Hatch Act. The Merit Systems Protection Board has held the OSC retains jurisdiction over such matters even whereas here, the employee has left the federal government.

CREW executive director Melanie Sloan stated

The Hatch Act is intended to ensure federal employees do their jobs without regard to partisan politics. Christie’s actions call into question whether the New Jersey U.S. Attorney’s Office investigated and prosecuted cases based on application of the law to the facts, or because certain prosecutions might have enhanced his prospects of securing the Republican nomination for governor.

Last week, Gov. Jon Corzine said the revelations contained in Rove’s interview transcripts about his conversations with Christie leaves no doubt that his opponent is a “lawbreaker.”

“It is hard to understand how a lawbreaker gets the reputations of being the king of law enforcement, and uses that as a platform,” Corzine said, adding that he too believed Christie’s conversation with Rove appeared to be a Hatch Act violation.

Conyers is now considering taking advantage of that prearranged agreement. He and his staff have been engaged in talks that could result in Rove and Miers being called to testify before his panel sometime in the fall, according to several congressional sources who spoke on condition of anonymity.

Their expected appearance would mark the first time that senior Bush White House officials will testify publicly about a scandal that resulted in the resignation of Attorney General Alberto Gonzales and other top Justice Department officials. Rove and Miers defied numerous congressional subpoenas seeking their sworn testimony over the past two years about the roles they played in the firings of the federal prosecutors.

Both Miers and Rove were subpoenaed by Conyers’ committee numerous times and were held in contempt of Congress for refusing to appear before the panel. They said Bush administration attorneys advised them they were protected by George W. Bush’s assertion of “absolute immunity” and were told not to appear before the committee.

If Rove and Miers are called to testify before Congress and either of them refuses to appear than the agreement the Judiciary Committee entered into with the former officials would be considered breached and Congress “can resume the litigation,” Conyers said in a statement his office issued March 4, after his panel reached a negotiated settlement to secure Rove and Miers’ testimony. The parties agreed to stay the contempt case “until at least the completion of the [private interviews," The Constitutional Law Prof Blog noted.  The agreement between the Judicairy Committee and Rove and Miers begins on page 4 of Rove Exhibit 1.

Attorneys for Rove and Miers did not return messages left at their offices nor did they respond to e-mails seeking comment.

The questioning of Rove and Miers, if a public hearing is held, is expected to be lead by committee member Rep. Adam Schiff, D-Burbank, a former federal prosecutor who also lead the questioning during their closed-door testimony before the committee in June and July.

The Judiciary Committee has already reached out to some of the fired federal prosecutors whose dismissals, according to documents and e-mails released by the panel last week, were politically motivated to assist in drafting new questions for Rove and Miers, congressional sources said.

These sources added that, in addition to covering old ground, the committee wants Rove and Miers to publicly testify about what Bush knew and when he knew it.

In his interview with the committee last month, repeatedly avoided responding to direct questions about whether Bush was aware of the plan. But in interviews he gave to The Washington Post and The New York Times last month, which the newspapers agreed not to publish until Rove completed his second round of testimony last month, he said he believed Bush “had been informed of the decision to let the prosecutors go.”

In an interview with the Post, Rove also said he’s “sure” Bush was told about the firings in advance.

“Maybe Harriet [Miers] talked to him about it,” Rove said. “I’m sure they did walk in at the end and say, ‘Mr. President, we want to make a change here.’”

That revelation would contradict numerous public statements made by White House spokespersons Tony Snow and Dana Perino that Bush did not play a role nor was he involved in the decision to dismiss the U.S. Attorneys and that the decisions emanated from the Department of Justice.

“[T]here is no indication that the President knew about any of the ongoing discussions [about firing U.S. attorneys] over the two years, nor did he see a list or a plan before it was carried out,” Perino told reporters in March 2007.

The Judiciary Committee intends to question Rove again about his statements related to what Bush knew.

Miers testified that she believed it was “required” for Bush to be told about the U.S. Attorney firings and she expected White House Chief of Staff Josh Bolten to brief Bush about it. She added, however that perhaps Bolten never told Bush about the plan based on the fact that Perino’s March 2007 statement to reporters said Bush was in the dark about the matter.

In a Judiciary Committee report issued last week that accompanied the release of documents, the panel said that Rove and Miers’ statements, “plus the revelation that [former New Mexico] Senator [Pete] Domenici directly pressed Chief of Staff Bolten to have [New Mexico U.S. attorney David] Iglesias replaced in the fall of 2006, brings the matter closer to the former President’s door than previously known.”

Last year, a 356-page report prepared by Department of Justice Inspector General Glenn Fine and the head of the agency’s Office of Professional Responsibility, H. Marshall Jarrett, concluded that Bush and Rove spoke with Attorney General Alberto Gonzales in October 2006 about their concerns over voter fraud in three cities, one of which was Albuquerque, New Mexico,” and concerns Domenici had about Iglesias’s job performance.

Conyers’ committee had previously subpoenaed Bolten to testify about his role in the firings, but his testimony was not part of the negotiated settlement the Judiciary Committee entered into.

In a little known 12-page fact sheet the committee released last week summarizing Rove and Miers’ testimony, the panel said Rove’s “memory appeared to be quite selective.”

Rove “did not remember basic facts such as how and when he learned that David Iglesias would be removed, whether or not he ever saw the list of US Attorneys proposed for removal, or whether he even knew which US Attorneys were on the removal list when he approved the plan,” the committee’s fact sheet states. “Similarly, Mr. Rove clearly remembered obscure details such as a conversation with a now-deceased political scientist from a University of Wisconsin subcampus about possible flaws in the Justice Department’s rejection of Wisconsin vote fraud
complaints.

“But he did not recall much more basic facts about the matter such as whether there were specific US Attorneys that White House officials wanted to replace during the President’s second term, or what statements he made to [Alberto Gonzales's former chief of staff] Kyle Sampson and [the Justice Department’s White House liaison] Monica Goodling at a political briefing he lead just weeks before the final stage of the removal process was launched. While failure of recollection is always an issue in investigations, the extent of these witnesses’ failure to recall the basic facts about recent events is disturbing, and continues to obscure the full truth about the US Attorney removals.”

The committee said Miers “suffered from an extraordinary failure of recollection during her interview, stating more than 150 times that she did not recall the answer to questions about the US Attorney matter, including fundamental and memorable facts such as what she meant when she wrote that a ‘decision’ had been made to remove David Iglesias from his position in October 2005, or whether or not Karl Rove specifically asked that David Iglesias be removed when Mr. Rove called her, agitated, from New Mexico.”

Congressional sources said, in the case of Rove, he has made specific comments in the past week characterizing the reasons for Iglesias’s firing that he did not disclose during his testimony and as such he will be questioned about it when he testifies publicly.

In discussing the U.S. Attorney firings, lawmakers want Rove and Miers to publicly explain who was responsible for disclosing to them specific details about ongoing corruption investigations some of the fired prosecutors had been conducting, some of which involved powerful Republican lawmakers, which Democrats believe was then used to justify the firings, congressional sources said.

In the case of Iglesias, the panel is particularly interested in probing recent statements Rove made following last week’s release of the transcript of his testimony and thousands of previously undisclosed e-mails that showed he was deeply involved in Iglesias’s firing.

But in an interview last Wednesday with Fox News host Bill O’Reilly, Rove tried to minimize his role in Iglesias’s dismissal and said it was Iglesias who politicized prosecutions.

Rove said he told the Judiciary Committee he “passed on to the White House counsel’s office to pass on to the Justice Department complaints about the performance of the U.S. Attorney in New Mexico, that he failed to go after ACORN in clear cases of vote fraud, that he bungled a high prosecution — a high-profile corruption prosecution by interfering with the career prosecutors, and that he was treating an indictment of people in a courthouse corruption case very politically by refusing to indict them when the case was ready but waiting for nine months, 12 months, 14 months until after an election.

“These were charges that were made about him. Allegations. I was not in a position to find out whether or not they were accurate. That was up to the Justice Department. But I had an obligation to pass those on through the appropriate channels.”

The Judiciary Committee wants Rove to answer how he arrived at that conclusion if neither he nor any of the Republican Party activists in New Mexico had access to any of Iglesias’s case files as he has maintained.

In an interview, Iglesias said Rove’s claims are “outrageous,” particularly the fact that Rove has “the audacity” to claim that Iglesias had politicized an investigation into a courthouse construction project involving a former state Democratic official.

“He never talked to the FBI agent assigned, he didn’t talk to the [voter fraud] task force members, he didn’t talk to the career federal prosecutor that was helping me out with the matter, he didn’t review the FBI reports like I did. He’s just pulling this out of thin air. His position is not tenable it’s fantasy,” Iglesias said.

He added that if Rove was suggesting to O’Reilly he had first hand knowledge of ongoing investigations Iglesias had been conducting then that would be a violation of criminal and/or civil laws.

“That’s privileged law enforcement information. In fact I don’t even think anyone in the White House Counsel’s office, even though they’re lawyers they are not prosecutors, had the right to that information. The only people that had the legal right to review [those cases] are the prosecutors working for the Justice Department, either in Washington, D.C. or out of my office in Albuquerque.

“Let’s assume for a second that he did have access to the FBI reports that is very problematic and it probably violates laws—civil laws and probably some criminal law–in and of itself. Rove’s not an attorney, he’s not a prosecutor and he has the audacity to second guess not only my opinion but the opinion of the career prosecutor who was working on [the cases] with me and the career Justice Department attorney who does nothing but voter fraud? It’s outrageous.”

Rove and Miers testified that they both fielded complaints from Domenici and his chief of staff and Heather Wilson and state Republican Party officials about Iglesias’s “refusal” to prosecute cases of voter fraud and that he was dragging his feet on securing an indictment in a corruption case he was investigating.

But, as documents released by the committee show, those complaints were made in the context of Iglesias’s failure to help Republicans win elections by using his office to prosecute Democrats.

The Judiciary Committee’s report said Rove’s statement to the New York Times and Washington Post that he acted as a “conduit” for complaints about Iglesias are “false.”

“White House emails and the testimony of Rove and Miers establish that Iglesias was targeted for firing no later than May 2005 and that the White House reached a ‘decision’ to fire him by June of that year,” the report said. “This is months earlier than previously known (and more than a year
earlier than originally disclosed to Congress). The documents and testimony also reveal that Rove and his staff personally agitated for Mr. Iglesias to be fired on multiple occasions in 2005 and 2006, and did not act as mere passive ‘conduits’ in this matter.

“This campaign was clearly designed to interfere with Iglesias’ prosecutorial judgment in order to obtain political advantage for Republican candidates. Iglesias himself has explained that the reason he did not bring more vote fraud cases is because ‘the evidence was not there.’”

With regard to Miers, congressional sources said lawmakers would press her to further explain her involvement in a federal corruption investigation into Arizona Rep. Rick Renzi that resulted in the DOJ becoming violating its own internal regulations. Paul Charlton, the U.S. Attorney in Arizona who was one of the nine fired, was investigating Renzi.

The committee’s report said:

“In the weeks before the 2006 election, leaks surfaced indicating that then-Representative Rick Renzi of Arizona was under federal criminal investigation. After a complaint from Scott Jennings of Karl Rove’s office, Harriet Miers called Paul McNulty seeking a statement that would have ‘vindicated’ Renzi.

“Two days later, unnamed Department officials did in fact make several misleading and highly favorable statements to the media on behalf of Mr. Renzi, for example, warning reporters ‘this is not a well-developed investigation, by any means .. . a tip comes into the Department – the Department is obligated to follow up . . . People are assuming there is evidence of some crime, even though that is not necessarily true. . . . I want to caution you not to chop this guy’s (Renzi’s) head off.’  Notwithstanding these statements, which appear to violate Department policy about commenting about pending matters as acknowledged by Miers herself, Renzi has since been indicted.”

When Miers was asked during her testimony whether she thought “it is appropriate for a White House political official . . . to pressure the Department of Justice to make statements about pending investigations for political advantage?” she complained that the question was “very charged.”

When news reports were published quoting unnamed Justice Department sources about the Renzi investigation a wiretap had already been in place. Miers and McNulty could face conspiracy to obstruct justice charges if their involvement hindered Charlton’s investigation into Renzi.

And according to sources working closely with Nora Dannehy, a federal prosecutor appointed last year by Attorney General Michael Mukasey to investigate whether criminal laws were broken in connection with the firings and whether any of the key players perjured themselves when they testified before Congress, she has evidence that Charlton’s probe was compromised. But it’s unknown if it was the result of Miers’ involvement or other Justice Department officials who played a role in the attorney firings of Charlton and the eight other federal prosecutors.

Charlton’s case file on Renzi contains an unprecedented memo that the former federal prosecutor drafted indicating that he faced difficulty from the Justice Department getting approval to move forward on several fronts involving his probe into Renzi, according to Justice Department sources.

Separately, the documents and e-mails released last week show that White House lawyer William Kelley played a far larger role in the firings than had been previously known. Conyers’ committee may also seek to depose Kelley as well.

In March, after Conyers announced his panel reached an agreement to secure Miers and Rove’s testimony he said, “If the committee uncovers information necessitating his testimony, the committee will also have the right to depose William Kelley, a former White House lawyer who played a role in the U.S. attorney firings.”

Karl Rove holds a "Free Don Siegelman" sign at a February 2008 event in Los Angeles. BradBlog reporter Alan Breslauer covered the event and convinced Rove to hold up the sign. Photo credit: Alan Breslauer for BradBlog.com

Reports in both the mainstream and Web press indicate that Karl Rove, in his testimony before representatives of the U.S. House Judiciary Committee, denied involvement in the Don Siegelman case.

There is only one problem with those reports: They are not true.

So why would The Birmingham News run a story with the headline: “Rove Denies Role in Siegelman Case“? Why would veteran broadcast journalist Tim Lennox write a blog post with the title: “The Siegelman-Rove (Non) Connection“?

Well, The Birmingham News has long been a right-wing tool that never has made an honest effort at seeking the truth in the Siegelman story. Lennox has a reputation as a solid and fair reporter, so I can only assume that he just had an off day. For one thing, he links to the News story, indicating he relied on it for his analysis. That was his first mistake, right there.

Like many depositions, the Rove/Elliot Mincberg encounter took a number of twists and turns. Similar questions were asked multiple times, with slight variations. Rove gave slightly varying answers, appearing to contradict himself in one or two instances.

But the inquiry came down to two “money questions.” In both instances, the question essentially was this: Did Rove, or anyone working for him, ever have any communications with anyone about a possible criminal investigation or prosecution of Don Siegelman?

Rove’s answer both times? “Not that I’m aware of.”

That is not a denial.

What is it? It’s an illustration of one of the legal profession’s dirty secrets. I’m told that it is common for lawyers to coach clients on how to obscure the truth without technically lying under oath. The way to do it is with answers like “not that I’m aware of,” “I don’t recall,” or “I don’t remember.”

I call it the “tap dance around perjury.” And to no one’s surprise, Rove was well versed on all the tap dance’s various steps. His 67 pages worth of testimony about the Siegelman case was filled with “tap dance” answers.

Mincberg essentially asked two sets of questions, focusing on–(1) the period from Siegelman’s election in 1998 to the end of 2002; and (2) the period from the end of 2002 to the release of the Montgomery indictment in October 2005.

Here is a sample question and answer from the first set:

Q All right. Let’s go back if we could, then, to the line 80
we had just started relating to contacts — relating to Governor Siegelman through the end of 2002. In the period of time, again, between Governor Siegelman’s election and the end of 2002, did you ever communicate about Governor Siegelman with anyone working at the Department of Justice?

A No.

That is an outright denial on Rove’s part. But his answers to followup questions quickly become slippery. When asked if anyone from the White House Office of Political Affairs (OPA), Republican National Committee (RNC), or Republican Governors’ Association (RGA) communicated with the Justice Department, Rove’s answer is “not to the best of my knowledge.”

Rove specifically is asked if he had communicated about the Siegelman case with Noel Hillman, then head of the DOJ’s Public Integrity Section. The answer: “No, not that I recall.”

Note that Rove earlier had emphatically answered no about communicating with anyone at DOJ regarding Siegelman. But when asked about communicating with Noel Hillman, a key figure at the DOJ, Rove’s answer is that he doesn’t recall. So much for consistency.

Mincberg goes on to ask if Rove or anyone from any GOP-connected groups had communicated about Siegelman with:

* Any Alabama U.S. attorney’s office;

* The Alabama attorney general’s office or any other state law-enforcement agency;

* Bill Canary, head of the Business Council of Alabama;

* Bob Riley, Rob Riley, or anyone in the Riley administration; or

* Members of the media or press.

Rove’s answers were “not that I’m aware of” or “not that I recall.” The only exception was regarding former Alabama Attorney General William Pryor. Rove acknowledged a conversation with Pryor about Siegelman, but said he had not asked for any action to be taken.

Interestingly, when Rove was asked about the Rileys, his first response was: “Could you repeat that question?” Sounds like Rove needed to gather himself for that one.

What about the “money question,” the one that covers everything from 1998 to 2002? Here is that question and answer:

Q Again, in the period of time between Governor Siegelman’s election and the end of 2002, did you or anyone working for you ever have any communications with anyone about a possible criminal investigation, prosecution, or illegal acts by Governor Siegelman?

A Not that I’m aware of.

No denial.

What about the second “money question,” the one that covers everything from 2002 to October 2005? In fact, this one covers the whole enchilada. Here is that question and answer:

Q Under penalty of prosecution under 18 U.S. Code 1001, do you stand by your statements that you had no communications, other than the ones you’ve testified to generally today relating to — relating to possible investigation, prosecution, or criminal acts by Governor Siegelman?

A I stand by my statement. I’m not aware of any conversations other than the ones I have indicated.

Again, no denial.

Speaking of non-denials, Rove was asked about Jill Simpson, the Alabama whistleblower who stated under oath that she overheard GOP operatives planning a political prosecution of Siegelman–and it was all worked out with “Karl.” Here is that exchange:

Q Now, you also in this same article that we are referring to, state that you do not recall ever meeting or talking to Jill Simpson, the person who accused you of pressing for Siegelman to be investigated and claims to have met you. Under penalty of prosecution under 18 U.S. Code 1001, do you stand by your statements that you have never met or spoken to Jill Simpson?

A I have no recollection of meeting her or talking to her.

That was near the end of the deposition. By then, our guy Karl was slippery indeed.

The bottom line? The Rove/Mincberg deposition was not conclusive about much.

Did Mincberg nail Rove, with bombshell testimony or evidence that “Bush’s Brain” clearly was behind the Siegelman prosecution? No, but I doubt that any rational human being thought that was going to happen on this go-around.

Did Rove deny that he or his colleagues were involved? No.

Did the deposition lay ground for much more extensive inquiry. Definitely.

But the U.S. House Judiciary Committee released documents and testimony yesterday showing that Rove did keep up with Alabama politics–including the legal difficulties of former Democratic Governor Don Siegelman.

Rove even received an “Alabama News Alert” from a White House staffer, trumpeting the Siegelman conviction before it had appeared on evening newscasts.

Elliott Mincberg, chief counsel for oversight and investigations at the House Judiciary Committee, interrogated Rove about the Siegelman case.

Mincberg produced at least four documents that revealed Rove’s keen interest in Alabama while serving in the Bush White House. The documents were roughly from 2000 to 2005:

Document No. 1: E-mail from Rove to Susan Ralston and Matt Schlapp

Rove sent an e-mail to Susan Ralston, one of his chief deputies, and Matt Schlapp, director of the White House Office of Political Affairs (OPA), attaching a copy of the April 12, 2004, Southern Political Report.

Mincberg reads a key passage from the article:

Q . . . It says, and I quote, With Governor Bob Riley having low approval ratings following his major defeat last year on a tax restructuring proposal, lots of Democrats are sending signals they might run for Governor in 2 years. Ex-Governor, Don Siegelman, who barely lost to Riley in 2002, has made no secret of his ambition to serve as Governor again, end quote.

Rove says he doesn’t recall seeing the article, but Mincberg follows:

Q But in any event, it certainly stands to reason that Siegelman would be weakened if he was charged with crimes, correct?

A Correct.

Document No. 2: E-mail from Rove to Barbara Jo Goergen

Rove sent an e-mail to Barbara Jo Goergen, his executive assistant, attaching an article about federal prosecutors in Birmingham dropping the first case against Siegelman. It referenced the possibility of a Siegelman-Bob Riley rematch for governor in 2006.Mincberg directs Rove to a section in the article that says, “The other Democrat who might run is ex-Governor Don Siegelman.” This exchange ensues:

Q And going down the page, it discusses the fact that he is a, quote, “superb politician despite being dogged by several ethical clouds.” Do you see that reference?

A Yes. You ellipsed out “losing to challenger Riley in 2002 by a mere 48.9 to 49.1.”

Q And I’m happy for you to add that. It goes on to say, “This year could be different. Federal prosecutors in Birmingham had to drop their case against Siegelman when the judge threw out the major charge against him.” Do you see that reference?

A Yes.

Q Do you recall seeing this?

A No.

Q Do you agree that Siegelman would have been a serious contender in the 2006 race if his legal problems were resolved?

A Again, I’m not certain if he would or wouldn’t be, because he faced a primary with a couple of — at least one very ambitious and very popular official, and probably several.

Q On the other hand, if Siegelman were reindicted, that would have harmed him politically and made it more difficult for him to win the governorship?

A It generally creates problems, yes.

Q And, in fact, the article references the fact there is a Federal grand jury in Montgomery looking into his activities as Governor, correct?

A Correct.

Document No. 3: E-mail from Sarah Taylor to Karl Rove

Taylor, who replaced Matt Schlapp as director of OPA, sent an e-mail to Rove on February 10, 2005. The e-mail references Kelley McCullough “Kitty” Robertson, former Southeast political director for the Republican National Committee and a woman with strong ties to Alabama. Robertson apparently was trying to determine if Bob Riley intended to run for re-election as governor, even though his approval numbers were down following his failed attempt at tax reform. Here is the exchange:

Q Well, take a look, if you would, at Document 42 which is an e-mail from Sara Taylor to you on February 10, 2005. And Ms. Taylor says, quote, “We asked Kitty to do some digging, no word for sure, but sounds like probably Riley will run,” end quote. Do you see that?

A Uh-huh. Yes.

Q And Kitty, I take it, refers to Kelley McCullough . . . ?

Q And she was at the RNC?

A Yes.

Q Does this refresh your recollection about any communications you had with Sara Taylor relating to Governor Riley’s plans for reelection and the Alabama’s Governor’s race?

A No, I don’t. I was asked to do a fund-raiser in 2006. This may have been provoked by that why was I going to go down there and what was I going to do?

Q In any event, Ms. Taylor did –

A Or ’05. Excuse me.

Q ’05, right. In any event, Ms. Taylor did send you an e-mail reporting that the result of the digging that was asked to be done was that it looked like Governor Riley probably would run for reelection?

A It is unclear whether I asked her to do that digging or not. She said, We asked Kitty to do that digging.

Q You just don’t recall if that impulse came from OPA or from you?

A Yes.

Document No. 4: E-mail from Sarah Taylor to Karl Rove

When Siegelman was convicted in Montgomery in June 2006, Rove tells Mincberg that he learned about it from reading clips or watching the evening news.But Taylor’s e-mail has the heading “Alabama News Alert,” dated June 29, 2006. That was the date of Siegelman’s conviction. Taylor is forwarding information from Jason Huntsberry, an OPA regional director who covered Alabama. Here is the exchange:

Q And the e-mail reads, quote: Just spoke with Toby and word is that Former Governor Siegelman, paren, 10 counts, closed paren, and Richard Scrushy, paren, every account, closed paren, were just convicted. Details to follow. Is that correct?

A Yes.

Q Toby, again, would be Toby in Governor Riley’s office?

A I assume that is Toby Roth, yes.

Q Do you recall getting this e-mail?

A I don’t. But I’m sure I did. And I’m sure I looked at it. It is 5:52 p.m. is the sent time. So I could have conceivably seen it sometime that evening, at which time I may have seen it on the evening news as well.
Q But this would suggest that regardless of whether or not you saw it on the evening news, you also got an e-mail from Sara Taylor forwarding something that came from Governor Riley’s chief of staff, saying that Governor Siegelman had been convicted, correct?

A Right.

Roger Shuler resides in Birmingham, Alabama. A 1978 graduate of the University of Missouri, Shuler worked 11 years as a reporter and editor for the Birmingham Post-Herald before working 19 years in several editorial positions at the University of Alabama at Birmingham (UAB). He blogs at Legal Schnauzer.

Editor’s note: The House Judiciary Committee has just released more than 5,000 pages of new documents that the panel said implicates former White House poltical adviser Karl Rove in the firings of several U.S. attorneys dismissed for partisan political reasons in December 2006. The documents include transcripts of recent interviews Rove and former White House Counsel Harriet Miers gave to the Judicary Commitee.

We invite our readers to read through the documents and leave comments related to any interesting or explosive findings, which we will incorporate into our story.

Here is the Judiciary Committee’s fact sheet and links to the documents in question:

Rove’s interview transcript, Miers interview transcript, RNC e-mails and documents, White House documents.

House Judiciary Committee Chairman John Conyers, Jr. (D-Mich.) today released over 700 pages of on-the-record interview transcripts of Karl Rove and Harriet Miers on the U.S. attorney firings and the Bush administration’s politicization of the Department of Justice. Conyers also released over 5,400 pages of Bush White House and Republican National Committee e-mails on these subjects.

The released materials reveal that White House officials were deeply involved in the U.S. attorney firings and the administration made a concerted effort to hide that fact from the American people. “After all the delay and despite all the obfuscation, lies, and spin,” Conyers said, “this basic truth can no longer be denied: Karl Rove and his cohorts at the Bush White House were the driving force behind several of these firings, which were done for improper reasons. Under the Bush regime, honest and well-performing U.S. attorneys were fired for petty patronage, political horsetrading and, in the most egregious case of political abuse of the U.S. attorney corps – that of U.S. Attorney Iglesias – because he refused to use his office to help Republicans win elections. When Mr. Iglesias said his firing was a ‘political fragging,’ he was right.”

Key new facts revealed in the materials released today include:

• 2005 White House “Decision” to fire David Iglesias – It has previously been known that New Mexico Republicans pressed for Iglesias to be removed because they did not like his decisions on vote fraud cases.  New White House documents show that Rove and his office were involved in this effort no later than May 2005 (months earlier than previously known) – for example, in May and June 2005, Rove aide Scott Jennings sent e-mails to Tim Griffin (also in Rove’s office) asking “what else I can do to move this process forward” and stressing that “I would really like to move forward with getting rid of NM US ATTY.” In June 2005, Harriet Miers e-mailed that a “decision” had been made to replace Iglesias.  At this time, DOJ gave Iglesias top rankings, so this decision was clearly not just the result of the White House following the Department’s lead as Rove and Miers have maintained.1
• Iglesias criticized by Rove aide for not “doing his job on” Democratic Congressional Candidate Patricia Madrid – An October 2006 e-mail chain begun by Representative Heather Wilson criticized David Iglesias for not bringing politically useful public corruption prosecutions in the run up to the 2006 elections. Scott Jennings forwarded Wilson’s email to Karl Rove and complained that Iglesias had been “shy about doing his job on Madrid,” Wilson’s opponent in the 2006 Congressional race. Just weeks after this e-mail, Iglesias’ name was placed on the final firing list.2
• An “agitated” Rove pressed Harriet Miers to do something about Iglesias just weeks before Iglesias was placed on the removal list – Karl Rove phoned Harriet Miers during a visit to New Mexico in September 2006 – according to Miers’ testimony, Rove was “agitated” and told her that Iglesias was “a serious problem and he wanted something done about it.”3
• Senator Domenici personally asked Bush’s Chief of Staff Josh Bolten to have Iglesias replaced – In October 2006, Senator Domenici stepped up his campaign to have Iglesias replaced. According to White House phone logs and emails, as well as Rove’s own testimony, Domenici spoke with President Bush’s Chief of Staff Josh Bolten about Iglesias on October 5, 2006, and during October 2006, Domenici or his staff spoke with Karl Rove at least four times.4
• Todd Graves removed in Rove–approved deal with Republican Senator – Kansas City U.S. Attorney Todd Graves was removed as part of a White House–brokered deal with U.S. Senator Kit Bond. In exchange for the administration firing Graves, Senator Bond agreed to lift his hold on an Arkansas judge nominated to the Eighth Circuit federal appeals court. A White House e-mail stated that “Karl is fine” with the proposal.5
• Miers obtained favorable statement on Rick Renzi in violation of DOJ policy – When rumors of the FBI investigation of Rep. Rick Renzi surfaced in October, 2006, one of Rove’s subordinates contacted Harriet Miers, who called Deputy Attorney General McNulty seeking a possible statement that would have “vindicated” Renzi. Even though this was contrary to standard DOJ policy, such a statement was issued several days later.6

“I have provided a copy of the materials released today to special U.S. Attorney Nora Dannehy to assist in her effort to determine whether federal criminal charges are appropriate and to pursue any such charges,” said Conyers. “In the meantime, the committee has honored its pledge to get on-the-record statements from Karl Rove and Harriet Miers, as well as the relevant White House documents, and is pleased to make this unprecedented collection of Bush administration materials directly available to the American people by posting it online.

“I am especially grateful to the Speaker of the House, Nancy Pelosi, and the House Democratic leadership for their strong and unwavering support of this investigation, including the citations for contempt of Congress issued by the House in 2008. I also thank all members who voted in support of those citations and authorized the historic litigation that was instrumental in bringing us to this point. Today’s release marks a powerful victory for the rule of law, and should be celebrated by all who cherish our constitutional system of separation of powers and open, transparent government.”

An electronic copy of the materials released can be found on the Committee’s Web site at linked here. The release is pursuant to an agreement reached in March 2009 between the committee and the former Bush administration, with the assistance of the Obama administration, to resolve the committee’s lawsuit and the contempt citations issued by the Judiciary Committee and the full House of Representatives with respect to the refusal of the Bush administration to produce subpoenaed White House documents or permit the testimony of former White House officials Karl Rove and Harriet Miers on the U.S. attorney firings.

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1 May 2,2005, e-mail from Scott Jennings to Tim Griffin (HJC 00173); June 9,2005, e-mail from Harriet Miers to Leslie Fahrenkopf (HJC 00177);  June 28, 2005, e-mail from Scott Jennings to Tim Griffin (HJC 00180).

2 October 15, 2006, e-mail chain including Heather Wilson, Steve Bell, Scott Jennings, Karl Rove and others (HJC 00340-41).

3 Miers Interview Transcript at 40-48.

4 Josh Bolten phone log (HJC 00489); October 10, 2006, e-mail from Scott Jennings to Karl Rove (HJC 00334); Karl Rove phone log (HJC 00490); Rove Interview Transcript 123–24.

5 December 21, 2005, e-mail from Richard Klingler to Harriet Miers (HJC 00194-A).

6 October 24, 2006, e-mail from Harriet Miers to Scott Jennings (HJC 00344-45).

“There simply is no legal, moral or principled reason to insulate those who authorized the torture of detainees, either through legal reasoning or other policy directive, from investigation,” Rep. Jerrold Nadler, a New York Democrat and chairman of the House Judiciary subcommittee on the Constitution, Civil Rights and Civil Liberties, said in a letter to Holder.

Nadler’s letter of Aug. 4 was followed on Sunday by a report in the Los Angeles Times that Holder was likely to sign off on a criminal probe, but would limit its scope to CIA interrogators who exceeded interrogation limits set in 2002 by Justice Department attorneys John Yoo and Jay Bybee in memos that authorized waterboarding and other brutal acts against suspected terrorists.

“A senior Justice Department official said that Holder envisioned an inquiry that would be narrow in scope, focusing on ‘whether people went beyond the techniques that were authorized’ in Bush administration memos that liberally interpreted anti-torture laws,” the Los Angeles Times reported.

Nadler’s letter reiterated his previous calls for a special prosecutor with broad authority to investigate violations of federal laws that prohibit torture. He also objected to any investigation limited to “activities by interrogators, working in bad faith, that fell outside the ‘four corners’ of the legal memos” provided by lawyers of the Justice Department’s Office of Legal Counsel, where Yoo and Bybee worked.

“First, such an investigation would fail to consider the possible violation of laws by high-ranking officials and lawyers who, through legal advice or otherwise, may have authorized torture,” Nadler wrote.

“This country has been instrumental in establishing the principle that high-ranking officials and lawyers who use legal reasoning to justify or otherwise authorize war crimes can, and should, be held legally accountable. The ban on torture is absolute and we have a legal obligation to investigate torture and all of those who may have been party to its use.”

Nadler’s letter was prompted by several news reports published over the past month indicating that Holder was leaning toward a limited criminal probe after reviewing a classified CIA inspector general’s report that reportedly called into question the legality of the Bush administration’s torture program.

The secret findings of CIA Inspector General John Helgerson led to eight criminal referrals to the Justice Department for homicide and other misconduct, but those cases languished as Vice President Dick Cheney is said to have intervened to constrain Helgerson’s inquiries.

Holder may reopen those cases, but if an investigation is narrowly focused on the CIA interrogators and outside contractors and does not include the Bush administration officials who authorized the policies then the probe would likely amount to a whitewash, much like the Abu Ghraib case.

Of the 12 investigations launched in the aftermath of the Abu Ghraib prison scandal, not one scrutinized the roles of Defense Secretary Donald Rumsfeld or any other senior Bush administration official. The inquiries concentrated instead on the military police identified in the photographs, like Private Lynndie England and Corporal Charles Graner Jr.

Such a limited approach would also ignore evidence that senior Bush administration officials and high-level officials at CIA headquarters in Langley micromanaged the torture of at least one high-level detainee.

As first reported by The Public Record, documents released earlier this year in a Freedom of Information Act lawsuit between the American Civil Liberties Union and the CIA showed that CIA interrogators provided top agency officials at Langley with daily “torture” updates of Abu Zubaydah, an alleged “high-level” terrorist detainee who was held at a secret “black site” prison and waterboarded 83 times in August 2002.

Additionally, alleged 9/11 mastermind Khalid Sheikh Mohammed was waterboarded 183 times in the span of a single month. CIA Inspector General Helgerson also “had serious questions about the agency’s mistreatment of dozens more,” according to Jane Mayer, a reporter for The New Yorker and author of the book The Dark Side.

Senior Bush administration officials were known to be closely following these developments and pressed the CIA for more and more results.

Last year, in several interviews prior to exiting the White House, Cheney admitted that he personally authorized the waterboarding of three so-called “high-value” prisoners.

“I signed off on it; others did, as well, too,” Cheney said.

In waterboarding, interrogators strap a person down to a board with a cloth covering his face and then pour water over the cloth, causing the victim to feel as if he is drowning. It is a torture technique dating back at least to the Spanish Inquisition.

“I thought that it was absolutely the right thing to do,” Cheney said of what he called the “enhanced interrogation” of the detainees. “I thought the [administration’s] legal opinions that were rendered [endorsing the harsh treatment] were sound. I think the techniques were reasonable in terms of what they [the CIA interrogators] were asking to be able to do. And I think it produced the desired result.

“Was it torture? I don’t believe it was torture,” Cheney said. “The CIA handled itself, I think, very appropriately. They came to us in the administration, talked to me, talked to others in the administration, about what they felt they needed to do in order to obtain the intelligence that we believe these people were in possession of.”

In his letter to Holder, Nadler suggested statements, like those uttered publicly by Cheney, needed a closer look to determine whether war crimes were committed.

“The Geneva Conventions obligate High Contracting Parties such as the United States to investigate and bring before our courts those individuals ‘alleged to have committed, or to have ordered to be committed grave breaches of those Conventions.

“The War Crimes Act… specifically identifies torture and cruel or inhuman treatment, as well as the conspiracy to commit those acts, as punishable war crimes. The federal Torture Statute …  criminalizes torture and the conspiracy to commit torture.”

Nadler said if Holder decides to sign off on a criminal investigation a prosecutor must probe whether “federal criminal laws were violated by individuals who authorized or participated in the interrogation of detainees, including high-ranking officials and lawyers from the Department of Justice itself who allegedly approved or ordered the use of enhanced interrogation techniques that amounted to torture.”

Nadler added, “The ban on torture is absolute: ‘no exceptional circumstances whatsoever . . . may be invoked as a justification of torture,’ and ‘an order from a superior officer . . . may not be invoked as a justification of torture.’

“It may prove true that some interrogators faced difficult choices – pressure from superiors to obtain intelligence information from detainees coupled with directives or advice indicating that harsh interrogation methods were lawful – but limiting the scope of investigation to exclude individuals up front ignores the absolute bar on torture and our legal obligation to investigate torture, and is not necessary.

“If, indeed, laws were violated, the Detainee Treatment Act of 2005 provides a limited defense for those interrogators who show that they relied in good faith on legal advice in using interrogation methods that they did not know, and that a reasonable person would not know, were unlawful.
“These determinations are necessarily fact-based, and making ultimate decisions as to what the facts might prove or disprove, before any independent investigation has occurred, is unwarranted and would undermine the credibility of any investigation.”

In April, Holder declared that it “would be unfair to prosecute dedicated men and women working to protect America for conduct that was sanctioned in advance by the Justice Department.” That meant any possible criminal investigation would be limited to examining actions that went beyond what was sanctioned, such as repetitious use of waterboarding.

Last year, in the heat of the presidential campaign, Holder, who was a featured speaker at the American Constitution Society’s annual convention, told a packed crowd that the “American people are owe[d] a reckoning” as a result of the “abusive” and “unlawful” policies of the Bush administration.

“Our government authorized the use of torture, approved of secret electronic surveillance of American citizens, secretly detained American citizens without due process of law, denied the Writ of Habeus Corpus to hundreds of accused enemy combatants, and authorized the use of procedures that both violate international law and the United States Constitution,” Holder said in June 2008. “We owe the American people a reckoning.”

Obama, however, has been resistant to any investigation that would “look backward” and divert attention away from his domestic agenda.

Yet, Nadler said that can’t happen without a wide-ranging investigation.

“I appreciate and share the desire to put this unfortunate chapter in our nation’s history behind us, but we cannot do so without fulfilling our legal and moral obligation to investigate whether laws were broken by those who conducted and those who authorized the enhanced interrogation practices.”