Presidential power has been on a pathway of expansion beyond what the Constitution outlined, and what a government of, by, and for the people requires, since George Washington was president. That expansion, which hit the highway after World War II, got a turbo boost during the co-presidency of George W. Bush and Dick Cheney.

Some of the new powers that those two stole from Congress, the courts, the states, and us the people are being abused less severely in this new age of Obama; others, more so; but far more crucially, in a pattern followed by recent presidencies, all are being maintained, if not expanded, and thus more firmly cemented into place for future presidents to use. Wherever you fall on the political spectrum, you are likely to strongly oppose some major decisions of some future presidents. So it shouldn’t be hard to envision some pretty undesirable consequences that might flow from presidential power that increasingly approaches the absolute.

Our television news and newspapers don’t seem terribly interested in this story, despite scraping its surface with reports on the many “czars” Obama has appointed or lectures on the importance of renewing, or only marginally amending, the PATRIOT Act. And Congress seems, if possible, even less interested. That’s not so surprising, given that we’ve replaced the three branches of government with the two parties, so that at any given time roughly half the members of Congress take as their leader a president who is theoretically supposed to execute the will of Congress. And the other half usually obey their party’s “leaders” in Congress, whose primary interest is in electing one of their own as the next president. Both parties continue to value presidential power itself either for its uses in the present, or for when their candidate is elected. Everyone wants to inherit the imperial presidency, not constrain it.

Under these circumstances, bills to create commissions investigating presidential abuses, to place a judicial check on claims of “state secrets,” limit the use of presidential signing statements, or to allow more than eight members of Congress to be given “security” briefings by the executive branch prove not to be priorities for either party.

These days, the old-fashioned idea of checking executive abuses of existing laws through the issuance of subpoenas or by impeachment is, in Washington, widely considered a scandalous proposition. Congress impeached a judge this year who had groped his employees, but Jay Bybee, who signed secret memos purporting to legalize aggressive war and torture, and who now holds a lifetime seat on the Ninth Circuit Court of Appeals, is protected from such a step by his recent membership in the executive branch (and the displeasure Fox News would express toward his impeachment).

In April, Sen. Patrick Leahy, chairman of the Senate Judiciary Committee, asked Bybee to testify, and the judge refused, just as many of his former colleagues in the Bush administration had in 2007 and 2008. Leahy may be unwilling to follow up by issuing a subpoena that even the new Department of Justice might refuse to enforce. The current department, for instance, allowed the White House Counsel to negotiate partial compliance with a House Judiciary Committee subpoena by former presidential advisor Karl Rove. And if Leahy is like most members of Congress, he will not even consider the option of using the Capitol Police to enforce a subpoena himself — something that no committee has done in 75 years.

All Power to the President

Any quick survey of the powers the presidency now claims would have to include the power to make laws, the power to make wars, the power to spend money, the power to make treaties, the power to grant immunity for crimes, the power to operate in secrecy, the power to spy without warrants, the power to detain without charge, and the power to torture.

Laws are still made by Congress, but they can be rewritten via signing statements; that is, statements announcing a president’s intention to violate particular sections of the very bill he is signing into law. Neither Congress nor President Obama has thrown out all of Bush’s extensive signing statements that did indeed alter laws. In fact, Obama has announced that his subordinates will review his predecessor’s signing statements only as the need arises.

This policy might please those imagining that the Obama administration will always make the right decision about whether to maintain or reject a Bush-made amendment to a law, but it does nothing to strip the presidency of the power to use the mechanism of the signing statement to re-make or amend or alter new laws. As it happens, Obama has already published his own law-making signing statements.

Presidents now also routinely determine national policy through executive orders and, in doing so, run the country out of the White House rather than through departments headed by officials approved by Congress. They also increasingly dictate a legislative agenda to Congress — and both members of Congress and members of the public generally accept without comment or opposition that inversion of our constitutional system. And then there are the secret memos.

In those secret memos, Bush’s lawyers in the Department of Justice dutifully “legalized” numerous illegal acts, including aggressive war and torture. Despite years of public back-and-forth between the White House and the Congress over the question of whether to ban torture, any act of complicity in torture was already a felony in the U.S. code under the Anti-Torture Act, which enforced the Convention Against Torture signed by President Ronald Reagan. However, the secret Justice Department memos were taken as the final word in legality, no matter what the law said.

Obama has directed the Justice Department not to prosecute those at the highest levels responsible for producing those memos, though he has permitted consideration — whether seriously intended or not — of the possibility of prosecuting a handful of low-ranking staffers who strayed beyond the illegal policies outlined in the memos. Not only does this bestow immunity on the most prominent criminals, reversing the approach — starting at the top — that the U.S. took at the Nuremburg war crimes trials after World War II, but it has the potential to create a terrifying precedent for the future. If a president can use his justice department to legalize a crime simply by asking a lawyer to write a memo, then who can doubt that a president has something approaching absolute power?

Presidents, not Congress, do indeed make wars now, whether or not they consult Jay Bybee’s memo on the subject. They make wars without congressional declarations of war, using instead vague bills to maintain a pretense of congressional involvement — and then they don’t even comply with the terms outlined in those authorizations. Illegal (as well as unconstitutional) as they may be, these wars can be expanded into apparently permanent occupations that include the construction of gigantic military bases from which additional wars may be launched. In the process, mercenaries often take the place of soldiers, and as “private contractors” they then operate even further from congressional oversight or the law.

To invade Iraq, President Bush spent money not appropriated for that purpose. He also gave himself the power to transfer money into “black budgets” beyond the purview of all but a few members of Congress, and so use it for secret tasks signed off on by his officials. Of course, massive secret budgets under the control of the president are nothing new, though they’ve grown through the years. Neither are they constitutional or sustainable.

On October 6th, the leaders of the two parties met with President Obama and, by Senate Majority Leader Harry Reid’s account, let him know that he could end, decrease, maintain, or escalate the war in Afghanistan and Pakistan as he saw fit. The Senate had voted the previous week not to call on war commander Stanley McChrystal for public testimony about that ongoing war until after the president determines his war policy, which of course means a war policy for all of us. Two days later, in a surprising flicker of dissent, House Appropriations Committee Chairman David Obey released a statement suggesting that, contrary to everything he’d said for years, he recognizes that Congress has the power to choose not to fund those wars and thereby to end them.

As his presidency was winding down, George W. Bush concluded an unofficial treaty (though it was called a Status of Forces Agreement) with the government of U.S.-occupied Iraq for three more years of war there without feeling the slightest need for it to be ratified by the Senate. Ever since, the U.S. military has actually violated the terms of that document, while its key commanders continued to publicly state their intention to remain in Iraq beyond the end of 2011, a clear violation of the agreement. In the meantime, this White House has used the treaty as cover for an ongoing illegal occupation of Iraq with, at this point, 120,000 U.S. troops and tens of thousands of private contractors.

Is Congress Broken?

When many feared that Bush might pardon his subordinates for crimes he had himself authorized, the consensus among members of Congress and scholars was that he could, in fact, do such a thing. In some ways what both Bush and Obama have actually done is worse. With a big assist from Congress in the form of bills like the Military Commissions Act and the FISA Amendments Act, they have worked to grant immunity for crimes without even naming the criminals or revealing what they have done. Obama’s Department of Justice is now arguing, appealing, or re-appealing in various court cases to keep secret the abuses of government officials and corporations involved in torture and warrantless spying. Recently, the Justice Department even argued that, when it comes to denying information to a court or the public, telecommunication corporations must be considered a part of the executive branch of the federal government, and earlier this year the administration threatened the British government with an end to intelligence sharing if it revealed evidence of torture.

President Obama announced that he will only claim the right to hide information from a court on the grounds that important “state secrets” are involved after careful review by lawyers at the Department of Justice. This may be an improvement over the Bush years — not exactly a hard standard to reach — but notably this decision still cedes not an ounce of power to any branch other than the executive, even as Obama’s lawyers make radical “state secrets” claims in attempts to block entire court cases, rather than over particular pieces of information.

While this president is ceding modest amounts of territory claimed by the previous one, he is ceding nothing when it comes to presidential power itself. For example, the president said he would release White House visitor logs (as the Bush administration had not), just not those already recorded, including the ones that held records of the visits of deal-making health insurance executives, nor any future logs that he thinks would endanger “national security.” That offers change of a sort, however modest, but leaves it entirely in the president’s hands to decide which logs to release.

This administration has indeed released some of the secret memos that Bush’s Department of Justice used to justify torture and never shared with the public, but only when compelled by courts. The Justice Department has, in fact, fought fiercely against their release and has redacted significant sections of them before making them public.

Bush claimed for the presidency the power to detain people without charge or legal process — and then used it. Obama stood in front of the U.S. Constitution in the National Archives in Washington and asserted the same power, in violation of the right of habeas corpus found in that torn and tattered document. Director of Central Intelligence Leon Panetta and presidential advisor David Axelrod have similarly made clear that the president still claims the power to engage in “harsh interrogation techniques” but chooses not to use it. Torture in this way has been transformed from a crime into a policy choice, with the intended message apparently being that we can stop torture temporarily by choosing to elect Democrats. This is perilous territory.

Perhaps presidents simply cannot be expected to give back powers gained by the executive branch, but shouldn’t we expect Congress to work to take them back on our behalf? When Alberto Gonzales resigned as attorney general, he did so because a rapidly growing list of members of Congress signed onto a one-sentence bill directing the House Judiciary Committee to investigate possible grounds for his impeachment. Such an approach toward Judge Jay Bybee could begin to restore the power of Congress to assert itself in other areas as well, while pressuring the Justice Department to enforce the law, and potentially making public a great deal of information through the subpoenas involved in any impeachment hearing, which does not permit claims of “executive privilege.” Information subpoenaed in an impeachment hearing must be produced, or the failure to produce it can become another impeachable offense.

Many of us probably consider our current president a much nicer guy than our local congressional representative. That doesn’t change the fact that influencing a president, or even a senator, via grassroots pressure is infinitely more difficult than influencing a member of the House of Representatives.

This is not a new discovery. After all, isn’t this, in part, why the House was given the power of the purse and the power of impeachment? Being closer to the ground, that body is, by its nature, going to be more amenable to democratic pressure and direction. If we want once again to have a real hand in making our nation’s policies, our best shot — admittedly still a distinctly uphill course — is to focus on the person who represents us in the House.

Unfortunately, we have to compel each of them to do something they have come to collectively fear: taking back the power originally bestowed on them and not on behalf of their party, but of their branch of government, of the Constitution to which they’ve sworn an oath, and of the proper sovereigns of this nation: we the people. Otherwise the chief legacy of the Obama years will, like those of his immediate predecessors, be the slide from republic into empire and the continuing growth of an imperial presidency.

David Swanson served as press secretary for Kucinich for President in 2004, runs the AfterDowningStreet.org website, and is the creator of Impeachbybee.org. His new book is Daybreak: Undoing the Imperial Presidency and Forming a More Perfect Union (Seven Stories Press). He is now touring the country for the book. You can find out when the tour will be in your town by clicking here.

US District Court Judge Emmet Sullivan rejected arguments by Obama Justice Department appointees that releasing the transcript would discourage future vice presidents from cooperating with criminal investigations because their words could become “fodder for The Daily Show.”

At a federal court hearing in July, Jeffrey Smith, an attorney in the Justice Department’s Civil Division, argued that the transcript of Cheney’s 2004 interview with special prosecutor Patrick Fitzgerald about the CIA leak should remain secret for as long as ten more years to protect Cheney from any political embarrassment that would result from the transcript being released.

“Any attempt to predict the harm that disclosure of these records could have … is therefore inherently, incurably speculative,” Sullivan wrote in his ruling. “Accordingly, the Court concludes that DOJ has failed to meet its burden of demonstrating that the records were properly withheld.”

Sullivan, however, did agree that the Justice Department can keep under wraps, on national security grounds, statements Cheney had made to Fitzgerald about declassification discussions he had with George W. Bush, conversations Cheney had with former CIA Director George Tenet about Ambassador Joseph Wilson’s February 2002 trip to Niger to investigate allegations that Iraq was seeking to purchase yellowcake uranium, discussions surrounding the 16 words in Bush’s January 2003 State of the Union address that asserted Iraq had attempted to purchase the uranium, talks between Cheney and then National Security Adviser Condoleezza Rice and conversations between Cheney and other Bush officials about how to respond to media inquiries about the Plame Wilson leak.

Court papers filed by Obama’s Justice Department in July revealed that Bush and Cheney were in contact about the scandal, including what is described as “a confidential conversation” and “an apparent communication between the Vice President and the President.”

That court filing also revealed that Fitzgerald questioned Cheney about his participation in the decision to declassify parts of a 2002 National Intelligence Estimate regarding Iraq’s alleged WMD. It ultimately fell to Bush to clear selected parts of the NIE so they could be leaked as part of the White House campaign to disparage Wilson.

“Judge Sullivan rightly rejected a Justice Department interpretation of the [Freedom of Information Act] that would have allowed the government to withhold virtually any law enforcement record even where an investigation has long since been concluded,” said Melanie Sloan, executive director of the government watchdog group Citizens For Ethics and Responsibility in Washington (CREW). The case stems from a FOIA lawsuit filed last year by CREW.

“We are disappointed, however, that the judge allowed DOJ to withhold portions of some records because the American people deserve to know the truth about the role the vice president played in exposing Mrs. Wilson’s covert identity. High-level government officials should not be permitted to hide their misconduct from public view,” Sloan added.

A Justice Department spokesman said Sullivan’s ruling is under review. Unless the Obama administration decides to appeal, the public may learn additional details about Cheney’s role in the leak of Plame Wilson’s covert identity by October 9, the deadline Sullivan gave the Justice Department to release a redacted version of Cheney’s interview transcript.

Senior Bush administration officials disclosed Plame Wilson’s identity to several journalists in June and July of 2003 amid White House efforts to discredit her husband, Ambassador Joseph Wilson, for challenging Bush’s use of bogus intelligence to justify invading Iraq.

Plame Wilson’s CIA employment was revealed in a July 14, 2003, article by the late right-wing columnist Robert Novak, effectively destroying her career. Two months later, a CIA complaint to the Justice Department sparked a criminal probe into the identity of the leakers.

Initially, Bush professed not to know anything about the matter, and several of his senior aides, including political adviser Karl Rove and the vice president’s chief of staff I. Lewis Libby, followed suit.

However, it later became clear that Rove and Libby had a hand in the Plame leak and that Bush and Cheney had helped organize a campaign to disparage Wilson by giving critical information to friendly journalists.

On June 24, 2004, Bush was interviewed by Fitzgerald for 70 minutes about the Plame leak. The only other member of the Bush team in the room during the meeting was Jim Sharp, the private lawyer that Bush hired, according to a press briefing by then-press secretary Scott McClellan.

“The President … was pleased to do his part to help the investigation move forward,” McClellan said. “No one wants to get to the bottom of this matter more than the President of the United States.”

A couple of weeks earlier, Cheney had been interviewed by Fitzgerald. Cheney retained a private attorney, Terrence O’Donnell, to represent him in the matter.

Fitzgerald’s criminal investigation led to Libby’s indictment in October 2005 and his subsequent conviction in March 2007 on four counts of perjury and obstruction of justice, which Bush later commuted.

During closing arguments at Libby’s trial, Cheney was implicated in the leak, as Fitzgerald acknowledged that Cheney was intimately involved in the scandal and may have told Libby to leak Plame’s status to the media.

Fitzgerald told jurors that his investigation into the true nature of the vice president’s involvement was impeded because Libby obstructed justice.

Libby’s attorney, Theodore Wells, told jurors during his closing arguments that Fitzgerald had been trying to build a case of conspiracy against the vice president and Libby, and that the prosecution believed Libby may have lied to federal investigators and to a grand jury to protect Cheney.

“Now, I think the government, through its questions, really tried to put a cloud over Vice President Cheney,” Wells said.

Rebutting Wells, Fitzgerald told jurors: “You know what? [Wells] said something here that we’re trying to put a cloud on the vice president. We’ll talk straight. There is a cloud over the vice president. He sent Libby off to [meet with New York Times reporter] Judith Miller at the St. Regis Hotel. At that meeting – the two-hour meeting – the defendant talked about the wife [Plame]. We didn’t put that cloud there. That cloud remains because the defendant obstructed justice and lied about what happened.”

Moreover, copies of Cheney’s handwritten notes also appeared to implicate Bush in the leak case.

Cheney’s notes, which were introduced as evidence during Libby’s trial, called into question the truthfulness of Bush’s vehement denials about having prior knowledge of the sub rosa campaign against Wilson.

In an October 2003 note to then-press secretary McClellan, Cheney demanded that the press office add Libby to a list of White House officials being cleared of any role in the Plame leak.

“Not going to protect one staffer + sacrifice the guy that was asked to stick his head in the meat grinder because of incompetence of others,” Cheney wrote. However, the note revealed that Cheney had originally written “this Pres” before crossing that out and using the passive tense “that was.”

In other words, the original version suggested that Bush had asked Libby “to stick his head in the meat grinder,” an apparent reference to dealing with the Washington press corps.

Last year, Congressman Henry Waxman, then the chairman of the House Oversight and Government Reform Committee, revealed in a letter sent to Attorney General Michael Mukasey that, according to FBI transcripts given to Waxman’s committee, Libby told federal investigators that Cheney might have told him to leak Plame’s CIA ties to reporters.

“In his interview with the FBI, Mr. Libby stated that it was ‘possible’ that Vice President Cheney instructed him to disseminate information about Ambassador Wilson’s wife to the press. This is a significant revelation and, if true, a serious matter. It cannot be responsibly investigated without access to the Vice President’s FBI interview,” Waxman wrote.

DOJ whistleblower Tamarah Grimes

Leura Canary, the U.S. attorney for the Middle District of Alabama, wrote press releases about the prosecution of Gov. Don Siegelman that were distributed under the signature of assistant prosecutor Louis Franklin. Also, Canary regularly had two assistants communicate her suggestions about Siegelman’s case to Franklin.

All of this took place after Canary had announced her recusal from the Siegelman case. And they are two of many stark examples of prosecutorial misconduct outlined in a letter dated June 1, 2009, from whistleblower Tamarah Grimes to U.S. Attorney General Eric Holder.

Eight days after writing the letter, Grimes was fired from her position as a paralegal for the Department of Justice in Montgomery, Alabama. So far, there is no indication that Holder has taken any action in the matter.

The complete Grimes letter can be viewed here.

Grimes tells Holder that Canary’s recusal claims were false regarding the prosecution of Siegelman and former HealthSouth CEO Richard Scrushy in what became known as “The Big Case” in the Montgomery office. Patricia Snyder Watson, the district ethics officer and first assistant U.S. attorney, was a frequent conduit of information to and from Canary. Writes Grimes:

Mrs. Canary publicly stated that she maintained a “firewall” between herself and The Big Case. In reality, there was no “firewall.” Mrs. Canary maintained direct communication with the prosecution team, directed some actions in the case, and monitored the case through members of the prosecution team and Mrs. Watson.

Grimes said she regularly raised concerns with Watson about misconduct among prosecutors on the Siegelman case–to little effect:

Mrs. Watson advised me that The Big Case was the most important case in the office and that U.S. Attorney Leura Canary would grant prosecutors virtually unlimited latitude to obtain a conviction. Mrs. Watson told me that as a paralegal, I did not have standing to question the actions of a federal prosecutor, and that if Mrs. Canary found out that I had done so, I would certainly be disciplined for insubordination.

With the threat of disciplinary action hanging over her head, Grimes tried to ignore the misconduct. But it was hard to ignore overt negotiations of proposed testimony of key cooperating witnesses Nick Bailey and Lanny Young. The lead prosecutor, Assistant U.S. Attorney Stephen P. Feaga, instructed investigators to meet with Bailey and Young frequently. Writes Grimes:

Mr. Feaga instructed the investigators how to approach the cooperating witnesses on a particular subject and specified what he needed the witness to say in order to support his prosecutorial theory. For instance, Mr. Feaga would say, “See if you can get him to say it like this . . . , ” “Ask him if he is comfortable saying it like this . . . ,” or “I need him to say it like this . . . .” The investigators would return from meeting with the cooperating witnesses to report to Mr. Feaga, who would send the investigators back with new instructions.

Grimes said she was not the only person concerned about prosecutors’ creative approach to the facts of the case:

I recall one of the investigators, FBI agent Keith Baker, commented on the conduct by saying, “There is truth, there are facts, and then there are “Feaga facts.”

“Feaga facts” apparently were present in what proved to be the key testimony against Siegelman and Scrushy:

I particularly recall one meeting in which cooperating witness Nick Bailey was persuaded to recall something that he claimed he did not actually recollect. The matter concerned a meeting between Governor Siegelman and Richard Scrushy, a check and supposed conversation, which eventually led to the convictions in The Big Case. Mr. Bailey repeatedly said he did not know and he was not sure. The prosecutors coaxed and pressured Mr. Bailey to “remember” their version of alleged events. Mr. Bailey appeared apprehensive and hesitant to disappoint the prosecutors.

After reading Grimes’ stunning letter to Holder, we are left with numerous questions, but these two jump out at us:

How could convictions possibly stand when the key witness clearly was coaxed into making statements regarding events that he did not actually recall?

Tamarah Grimes was fired eight days after writing this letter to Eric Holder. But the U.S. attorney general, our nation’s chief law-enforcement officer, apparently has done nothing about it. Why is Holder sitting on his hands when a DOJ whistleblower, who went right to the top with her concerns about prosecutorial misconduct, has clearly faced retaliation for speaking out? Does anyone in the Obama administration have a spine when it comes to matters of justice? Will anyone ever take steps to clean up the cesspool in Montgomery, Alabama?

Why has the Obama administration allowed Leura Canary to remain on the job?And here’s a really interesting question. Alabama’s two Republican U.S. senators, Jeff Sessions and Richard Shelby, have objected to two highly-regarded nominees for the Middle District position–Michel Nicrosi and Joseph Van Heest. Why do Sessions and Shelby object so strongly to these nominees? Is it possible that a real federal prosecutor in Montgomery, Alabama, might unearth some unsavory activities related to Sessions and Shelby themselves? Why is Obama allowing Sessions and Shelby to hold the Middle District of Alabama hostage?

As John McCain once said, “Elections have consequences.” Well, Obama was elected president, and he should not allow Sessions and Shelby to hold up the appointment of a new federal prosecutor in Montgomery. He should nominate Nicrosi or Van Heest and move forward, kicking Leura Canary unceremoniously to the curb–where she belongs.

Roger Shuler, a regular contributor to The Public Record, 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.

ACORN has long been one of Karl Rove's targets.

In recent days, the Washington Post, the New York Times and other major news outlets have recounted the “troubled” history of the poor people’s advocacy group ACORN, but left out the five-year anti-ACORN campaign led by White House adviser Karl Rove and other Republican operatives.

Dropped down the memory hole is the fact that ACORN was at the center of the so-called “prosecutor-gate” scandal, when the Bush administration pressured U.S. Attorneys to bring indictments over the grassroots group’s voter-registration drives and then fired some prosecutors who resisted what they viewed as a partisan strategy not supported by solid evidence.

The latest furor over ACORN was touched off by conservative filmmaker James E. O’Keefe III and a right-wing columnist who posed as a couple planning to buy a house for use as a brothel and getting advice from a few ACORN employees, rather than being turned away.

The pair filmed their meetings at ACORN offices with a hidden-camera, producing a video that brought to a fever pitch the long-simmering Republican war against ACORN. The video was trumpeted by Fox News and other right-wing news outlets, starting a stampede in the mainstream press and in Congress, where a majority of panicked Democrats joined the herd in approving legislation to strip ACORN of federal funds.

The stampede, which trampled ACORN and its mostly black and Hispanic organizing staff, soon pulled in President Barack Obama, who often has touted his work as a community organizer in his youth. In an interview last Sunday on ABC’s “This Week,” Obama told host George Stephanopoulos that ACORN “deserves to be investigated.”

Yet, while bending to Republican demands to speak out against a poor people’s group, Obama continued to resist the notion that powerful Republicans from the Bush administration deserved to be investigated for authorizing the use of torture against prisoners in the “war on terror.”

In an interview with CBS’s “Face The Nation,” Obama downplayed the seriousness of an investigation authorized last month by Attorney General Eric Holder into several cases where CIA officers allegedly exceeded Justice Department guidelines during the interrogations.

“I have said consistently that I want to look forward and not backward when it comes to some of the problems that occurred under the previous administration, or when it came to interrogations,” Obama said. “My understanding is it’s not even a criminal investigation at this point.”

Stark Juxtaposition

That juxtaposition is a stark example of how Republicans – aided by the giant megaphone of the right-wing media – continue to keep Democrats on the defensive, while evidence of Republican guilt gets little sustained attention except at a handful of Internet sites.

That pattern holds true even for issues connected to ACORN.

For instance, much less media interest followed the House Judiciary Committee’s August release of Bush administration e-mails related to the role that Rove and other Bush administration officials played in the firings of nine U.S. attorneys amid a Republican effort to target ACORN’s voter- registration work during the 2004 presidential election between President George W. Bush and Sen. John Kerry.

Two of the nine U.S. Attorneys who were fired in 2006 were targeted because they refused to bring criminal charges against individuals affiliated with ACORN. The firing of another U.S. Attorney was due, in large part, to his refusal to convene a grand jury and secure a voter-fraud indictment against individuals, some of who were affiliated with ACORN.

In a May 2, 2005, Rove deputy Scott Jennings sent to another Rove protégé Tim Griffin an e-mail, which said that in the fall of 2004, Bernalillo County’s Republican Sheriff Darren White and Pat Rogers and Mickey Barnett, Republican Party operatives in New Mexico, turned over hundreds of “suspected fraudulent voter registration forms” handled by ACORN workers. The e-mail was also forwarded to Leslie Fahrenkopf, Bush’s associate counsel.

In 2004, New Mexico was considered a swing state in the Bush-Kerry race and Bernalillo County had been targeted by ACORN for a major grassroots effort to register voters, which resulted in about 65,000 newly registered voters, many of who were low-income and minorities who tend to vote for Democrats.

Sheriff White challenged the integrity of some of the names on the voter registration rolls, according to then-New Mexico U.S. Attorney David Iglesias in his book, In Justice: Inside  the Scandal that Rocked the Bush Administration. White held a press conference along with other Republican officials in the county to call attention to the matter.

“The purported examples that were then produced included a woman who had correctly filled out two different registrations with slightly different signatures and another in which a husband, with his wife’s permission, had signed her name to the form,” Iglesias wrote. “It was demanded that I take action against what was perceived as rampant abuse of the system.”

Scant Evidence

Iglesias said he established an election fraud task force in September 2004 and spent more than two months probing claims of widespread voter fraud in his state. In testimony before a Senate committee in 2007, Iglesias said the task force received about 108 complaints of alleged voter fraud through a hotline over the course of about eight weeks.

“Most of the complaints made to the hotline were clearly not prosecutable – citizens would complain of their yard signs being removed from their property and de minimis matters like that,” Iglesias testified.

“Only one case of the over 100 referrals had potential. ACORN had employed a woman to register voters. The evidence showed she registered voters who did not have the legal right to vote. The law, 42 USC 1973 had the maximum penalty of 5 years imprisonment and a $5,000 fine.

“After personally reviewing the FBI investigative report and speaking to the agent, the prosecutor I had assigned, Mr. [Rumaldo] Armijo, and conferring with [a Justice Department official] I was of the opinion that the case was not provable. I, therefore, did not authorize a prosecution.

“I have subsequently learned that the State of New Mexico did not file any criminal cases as a result of the” election fraud task force.

Iglesias said Republican officials in his state were far less interested in election reforms and more intent on suppressing votes. He wrote in his book that the Justice Department issued a directive to every U.S. Attorney in the country to find and prosecute cases of voter fraud in their states during the height of hotly contested elections in 2002, 2004, and 2006, even though evidence was thin or non-existent.

During this period, ACORN had stepped up its voter registration efforts and boasted in press releases about registering tens of thousands of first-time voters.

Iglesias said in late summer 2002 he received an e-mail from the Justice Department suggesting “in no uncertain terms” that U.S. Attorneys should immediately begin working with local and state election officials “to offer whatever assistance we could in investigating and prosecuting voter fraud cases.”

Other pressure also came from congressional and state Republicans. In New Mexico, Barnett, Rogers  White were among Republican operatives who complained directly to Rove at the White House and to officials in Bush’s Justice Department that Iglesias would not prosecute ACORN employees. These unhappy Republicans demanded that Iglesias be replaced.

According to a report by the Justice Department’s inspector general released last year, “In a March 2006 e-mail forwarded to [Craig] Donsanto in the [Justice Department's] Public Integrity Section, Rogers complained about voter fraud in New Mexico and added, ‘I have calls in, to the USA [U.S. Attorney] and his main assistant, but they were not much help during the ACORN fraudulent registration debacle last election.”

In June 2006, Rogers sent Iglesias’s Executive Assistant U.S. Attorney Rumaldo Armijo an e-mail, which said, “The voter fraud wars continue. Any indictment of the Acorn woman would be appreciated. . . . The ACLU/Wortheim [sic] democrats will turn to the camera and suggest fraud is not an issue, because the USA would have done something by now. Carpe Diem!” [Carpe Diem is translated, “seize the day.”]

Despite positive job reports, Iglesias was fired in December 2006 as part of a purge of nine federal prosecutors who were deemed not “loyal Bushies” or had other supposed shortcomings.

Last August, Rove went on Fox News to downplay his role in Iglesias’s firing, but acknowledged that he did pass on complaints to the Bush Justice Department about “the performance of the U.S. Attorney in New Mexico, that he failed to go after ACORN in clear cases of vote fraud…”

Expanded Warfare

But the Republican war against ACORN didn’t stop with Iglesias.

In Missouri, former U.S. Attorney Todd Graves was another federal prosecutor who fell into disfavor with the Bush administration because of alleged inaction on ACORN and voter fraud issues.

Graves would not file criminal charges of voter fraud against four employees of ACORN, according to documents later released by the Justice Department in connection with the fired-prosecutors probe.

Graves also resisted pressure from Bradley Schlozman, head of the Bush Justice Department’s Civil Rights Division, to file a lawsuit against Robin Carnahan, Missouri’s Democratic Secretary of State, on charges that Carnahan failed to take action on cases of voter fraud, Graves testified before the Senate Judiciary Committee in 2007.

Graves was forced to resign in March 2006 and was replaced by Schlozman as Missouri’s acting U.S. Attorney. Schlozman then filed the civil suit against Carnahan.

The case was later dismissed by a federal court judge who ruled, “The United States has not shown that any Missouri resident was denied his or her right to vote as a result of deficiencies alleged by the United States. Nor has the United States shown that any voter fraud has occurred.”

Schlozman also filed federal criminal charges of voter registration fraud against members of ACORN five days before the November 2006 mid-term elections. Schlozman came under criticism for breaking with longstanding Justice Department policy against bringing voting related charges so close to an election.

Schlozman testified before a Senate committee in 2007 that he received approval to file the voter registration fraud charges from a Justice Department ethics official. He later changed his testimony, was accused of perjury and was the subject of a federal investigation. The Justice Department, however, recently declined to prosecute Schlozman on allegations that he lied to Congress.

Earlier this year, a Justice Department watchdog investigation concluded that Schlozman broke the law by considering political and ideological affiliations in deciding who can serve in the civil rights division, where Schlozman supervised civil rights and voting rights attorneys from 2003 to 2006.

“My tentative plans are to gerrymander all of those crazy libs right out of the section,” Schlozman said in a 2003 e-mail. “I too get to work with mold spores, but here in Civil Rights, we call them Voting Section attorneys,” he told a friend. Schlozman said, according to a DOJ watchdog report released in January, that it was his desire to rid the DOJ of the “Democrats” and “liberals” because they were “disloyal” and replace them with “real Americans” and “right-thinking Americans.”

Though the Republican war against ACORN contributed to the “prosecutor-gate” scandal, GOP operatives carried the fight into the 2008 presidential campaign seizing on some ACORN employees who apparently were padding their registration numbers by submitting bogus forms with fake names like “Mickey Mouse.”

For its part, ACORN has insisted that its own quality control flagged many of the suspicious registration forms before they were submitted to state officials and that state laws often require outside registration groups to submit all forms regardless of obvious problems.

Independent studies also have shown that phony registrations rarely result in illegally cast ballots because there are so many other safeguards built into the system.

For instance, from October 2002 to September 2005, a total of 70 people were convicted for federal election related crimes, according to figures compiled by the New York Times last year. Only 18 of those were for ineligible voting.

Exaggerating a Problem

That figure — 70 people — appears in a misleading report released July 23, a little more than a month before the ACORN videos were broadcast on Fox News. The report was prepared by Rep. Darrell Issa, R-California, the ranking Republican on the House Committee on Government Oversight and Reform.

The report – entitled “Is ACORN Intentionally Structured As a Criminal Enterprise?” – cited,  among other material, several dozen published reports from right-wing news organizations, including Fox News’ Glenn Beck, and Breitbart.com, whose proprietor, Andrew Breitbart, worked closely with Beck and the filmmakers of the ACORN video, to demonstrate that the organization has engaged in widespread criminal acts related to voter fraud, tax evasion and racketeering.

An in-depth search on Google and Lexis to support Issa’s claims that all 70 people he cited worked specifically for ACORN and were convicted of crimes does not turn up evidence – other than Issa’s claims – which had gone viral and were picked up by right-wing echo chamber of news organizations, talk radio and bloggers.

The actual conviction numbers Issa cites in his report don’t add up to 70 and those cases weren’t all convictions. Additionally, Issa cites employees who were charged or arrested on suspicion of registering bogus names on voter registration cards but it’s unclear whether they were ever convicted.

According to an Oct. 18, 2008, report in FactCheck.org, “Neither ACORN nor its employees have been found guilty of, or even charged with, casting fraudulent votes,” although “several ACORN canvassers have been found guilty of faking registration forms and others are being investigated. But the evidence that has surfaced so far shows they faked forms to get paid for work they didn’t do, not to stuff ballot boxes.

Indeed, the cases suggest that ACORN was the intended victim of the attempted fraud, in that the phony registration forms were part of an effort by employees to exaggerate their work product.

“No evidence has yet surfaced to show that the ACORN employees who submitted fraudulent registration forms intended to pave the way for illegal voting. Rather, they were trying to get paid by ACORN for doing no work. Dan Satterberg, the Republican prosecuting attorney in King County, Wash., where the largest ACORN case to date was prosecuted, said that the indicted ACORN employees were shirking responsibility, not plotting election fraud.”

The FactCheck.org report was prepared after Republican presidential candidate John McCain jumped on the anti-ACORN bandwagon, citing it at the third presidential debate. He declared ACORN “is now on the verge of maybe perpetrating one of the greatest frauds in voter history in this country, maybe destroying the fabric of democracy.”

Web Ad

The McCain-Palin campaign put out a web ad titled “ACORN,” which carried the verbal endorsement of McCain.

The ad asked “Who is Barack Obama? A man with ‘a political baptism performed at warp speed.’ Vast ambition. After college, he moved to Chicago. Became a community organizer. There, Obama met Madeleine Talbot, part of the Chicago branch of ACORN. He was so impressive that he was asked to train the ACORN staff.

“What did ACORN in Chicago engage in? Bullying banks. Intimidation tactics. Disruption of business. ACORN forced banks to issue risky home loans. The same types of loans that caused the financial crisis we’re in today.

“No wonder Obama’s campaign is trying to distance him from the group, saying, ‘Barack Obama Never Organized with ACORN.’ But Obama’s ties to ACORN run long and deep. He taught classes for ACORN. They even endorsed him for President.

“But now ACORN is in trouble.”

The motive of Republicans in escalating the war on ACORN was suggested by a line in Rep. Issa’s report – to delegitimize Obama. On page five, the report states: “Documents provided by former ACORN employees and contained in this report demonstrate the degree to which ACORN and ACORN affiliates organized to elect President Barack Obama in 2008.”

A parallel between today’s ACORN attacks and those during Campaign 2008 is how the major U.S. news media mostly ignored the connections to the “prosecutor-gate” case. Last year, the press focused on anecdotes like Dallas Cowboys quarterback Tony Romo’s name showing up on one registration form.

The McCain campaign’s attempt to politicize ACORN – and hype the danger of voter fraud – also paralleled the allegations made by Republicans during the final days of Campaign 2004.

In October 2004, Marc Racicot, chairman of the Bush-Cheney 2004 presidential campaign, called on Democratic presidential nominee Sen. John Kerry to demand that ACORN and other voter registration groups stop engaging in voter registration fraud. Racicot said these registration efforts would “ultimately paralyze the effective ability of Americans to be able to vote in the next election.”

Media Campaign

Two weeks before the 2004 presidential election, Republican National Committee Chairman Ed Gillespie and Ohio Republican Party Chairman Bob Bennett announced the formation of a media campaign to counter what they claimed was voter registration fraud in nine Ohio counties.

“The reports of voter fraud in Ohio are some of the most alarming in the nation,” Gillespie said on Oct. 20, 2004.

In some ways the attacks on ACORN for allegedly signing up phony voters served as a cover for Republican efforts to purge real voters from the voting roles, a tactic that became infamous in the battleground states of Florida and Ohio.

In Florida, another battleground state in the 2004, President Bush’s brother Jeb was governor and the state’s Department of Law launched a statewide probe into voter registration fraud just two weeks before the presidential election. A press release from the Department of Law cited ACORN, which registered more than 212,000 new voters in the state.

In the two weeks before Election 2004, GOP officials raised similar concerns in Colorado, Minnesota, New Mexico and Pennsylvania.

Now, having finally succeeded in dealing a severe blow to ACORN with the undercover videos, Republicans are trying to expand the stain to Obama. In a speech on the House floor on Thursday, Rep. Steve King, R-Iowa, calle Obama “the star of ACORN, the lead, chief organizer…He walks with them all the way through.”

King then demanded that every House committee launch an investigation into ACORN and criticized as “a lame little announcement” that the Justice Department will look into the group’s activities.

At least two Democratic lawmakers, however, want to find out how the congressional backlash against ACORN will impact the low-income families and individuals the organization assists.

In a two-page letter sent Wednesday to Daniel Mullhollan, director of the Congressional Research Service (CRS), the investigative arm of Congress, House Judiciary Committee Chairman John Conyers and Rep. Barney Frank, chairman of the House Committee on Financial Services, requested CRS to “research and issue a comprehensive report concerning proposed and pending Congressional and other activity related” to ACORN.

“Because of the recent charges and countercharges that have been leveled at ACORN and various proposals for action, we believe it is important that CRS conduct a careful and objective analysis of a number of issues concerning ACORN,” the letter says.

Specifically, Conyers and Frank want CRS to provide details about the “pending and proposed [civil, criminal, congressional, and internal] investigations” into ACORN as well as requests for probes by lawmakers; details about the federal funds ACORN has received from various government agencies over the past five years; a description “of all instances, if any where ACORN violated the terms of its federal funding”; and the extent to which ACORN has helped place homeless and low-income families into homes.

Additionally, Conyers and Frank want the report to include details about the impact on elections from phony voter registration forms ACORN employees have filled out, and whether the undercover videos taken earlier this year at a few ACORN offices violated federal and state wiretapping laws.

Lastly, CRS was asked to determine whether the “Defund ACORN Act,” an amendment sponsored by Issa, that passed the House last week and other pieces of legislation aimed at specifically stripping ACORN of federal funds is unconstitutional or “would represent an unlawful bill of attainder.”

The claim that the “Defund ACORN Act” represented a bill-of-attainder violation was mentioned by Rep. Jerrold Nadler, D-New York, last week after the passage of the amendment.

“The Constitution says that Congress shall never pass a Bill of Attainder,” Nadler said during a floor speech after last week’s vote. “Bills of Attainder, no matter what their form, apply either to a named individual or to easily ascertainable members of a group, to inflict punishment. That’s exactly what this amendment does.

“It may be that ACORN is guilty of various infractions, and, if so, it ought to be vetted, or maybe sanctioned, by the appropriate administrative agency or by the judiciary. Congress must not be in the business of punishing individual organizations or people without trial.”

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.

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.

Documents released last week by the U.S. House Judiciary Committee leave many unanswered questions. But one thing is clear: Rove’s actions in the U.S. attorney firings give prosecutors solid grounds for considering a felony prosecution against him.

Will they actually move in that direction? Time will tell. But Scott Horton, legal-affairs contributor for Harper’s magazine, says the evidence is compelling:

The 6,000 pages of evidence released recently by the House Judiciary Committee make plain that (Rove) orchestrated the firings, and that in so doing he was driven by partisan political concerns. They also eviscerate his claims to have played only a “minor role” as a “conduit.” The documents and testimony make clear that Rove expected U.S. attorneys to use their office for the benefit of the G.O.P.—by prosecuting Democrats, squelching investigations of Republicans, or bringing bogus voting fraud charges that would adversely affect Democrats—or they would lose their jobs. This conduct invites the prosecutors to consider whether Rove and others in the White House were seeking to “corruptly influence” criminal investigations—a felony. That call is up to Nora Dannehy, the special prosecutor appointed by former Attorney General Michael B. Mukasey to study the matter.

Horton does not seem convinced that Dannehy will act in an aggressive fashion:

All indications now suggest that she has concluded that enough evidence exists to make out charges against some of the actors—though it is far from clear that she will seek indictments. After all, not all crimes are prosecuted, a fact that may provide Karl Rove a good deal of solace.

Horton indicates that a felony case could be made against Rove, without even considering his actions in the Don Siegelman prosecution. That topic also was covered in documents released last week. One central figure in the Siegelman drama, Alabama attorney and whistleblower Jill Simpson, says she has no intention of letting Rove get off the hook with his “I don’t recall” and “not to my knowledge” answers.

Simpson knows what it is like to testify under oath about the Siegelman case. She did it before House Judiciary Committee lawyers in fall 2007. She says the committee needs to examine the telephone and e-mail records of key players, then come back at Rove with questions he can’t squirm away from. Says Simpson:

I hope we have not run into a dead end where Congress does not really investigate anything else, and this is over. After all, when I came forward I promised to march to Washington and testify and tell the truth. I also promised to do all in my power to see that (other) witnesses had to testify. I helped get Mr. Rove to testify, and I don’t intend on him being the last witness called.

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.

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.”