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Of Threats And Deletions And A Hefty Helping Of Hubris


(Photo of the delete key via virgu.)

Paul Kiel at The Muck has an interesting post this morning, riffing off some comments made in a NYTimes article about the clashing understanding of oversight and disclosure between Congress and Fred Fielding in the White House Counsel's office.   Paul has graciously posted a copy of the Fielding response letter to Sen. Leahy and Rep. Conyers, and there are a couple of sections that I want to highlight for everyone this morning, because I think they are dispositive of a number of things, not the least of which is the overwhelming contempt that the Bush White House has for anyone who is not a Bushie and who would dare to question them.  To wit:

Although it consists of individual components, the proposal reflects a unified offer that, if accepted, would result in your Committees receiving a significant amount of information. We, therefore, respectfully decline your suggestion to immediately produce the documents that we are prepared to release as part of a carefully and thoughtfully considered package of accommodations designed to avoid shifting the dispute to ground on which we need not tread. With all respect, your suggestion fails to credit fully the extraordinary nature of the disclosure we are prepared ot provide, and might even prolong this dispute which the President is seeking to resolve in the most expeditious manner possible.

Allow me to translate the legalese for you: Mr. Fielding is using felicitous language to tell Mssrs. Leahy and Conyers to go Cheney themselves. The President does not want them getting their hands on this information quickly due to, one would assume, the need to comb over every sentence for potentially politically damaging information contained therein, so that a WH strategy to counter it might be put into place. (Read: Rove would like his ass covered, thank you very much.) Mr. Fielding is, therefore, threatening to litigate this matter of discovery through the courts rather than hand over relevant discovery to Congress — and threatens to do so pretty much up front here.

But it is a hollow bluff. And here is why: Mr. Fielding knows, as do any attorneys who are looking at this with an honest eye, that Executive Privilege will not apply to any e-mails which were sent on RNC servers. Nor does it apply to any e-mails sent between staffers. And, therefore, unless the communication is directly with George W. Bush, it is not privileged and is subject to discovery by Congress for the legitimate purposes of oversight. But wait, there is >more from Mr. Fielding:

At the end of your March 28 letter, you raised an additional question regarding the scope of the document production we are prepared to make as part of the total accommodation outlined in the March 20 letter. We are aware that certain e-mail accounts supplied by the Republican National Committee may have been used by White House officials in sending or receiving e-mails that might fall within the production contemplated in our letter. Please be assured that it ws and remains our intention to collect e-mails and documents from those accounts as well as the official White House e-mail and document retention system, for production under the terms we outlined.

We continue to believe that the accommodation we offered on March 20, in addition to what the Department of Justice has and will porvide, will satisfy the Committees' interests. It is hoped that upon reflection you may concur in that conclusion.

Sen. Chuck Schumer is quoted in the NYTimes article as saying the WH response is "We are stonewalling."  That is exactly how the end of the letter reads to me.  Fred Fielding is an accomplished and experienced counsel, who has a long history of doing just that for his clients, including the Nixon Administration.  He was brought into this White House at the start of the Democrats' tenure in charge of the Congress for a reason.  And his skill at stalling with a polite but firm tone is at the top of his list of qualifications.

But Fred Fielding's letter has been outstripped by events on the ground in this matter.  The revelation that the RNC had to set up a special protocol for Karl Rove's e-mails — because they kept disappearing off the RNC server during the course of a criminal investigation in which Mr. Rove was embroiled at the time (hello, Mr. Fitzgerald, and how are you this morning?) raises all sorts of uncomfortable questions that start — and end — with obstruction of justice.

Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States or any case filed under title 11, or in relation to or contemplation of any such matter or case, shall be fined under this title, imprisoned not more than 20 years, or both.

Mr. Feilding having worked for the Nixon Administration, I am certain that he is more than familiar with the various statutory provisions for criminal prosecution for obstruction under federal law.

More from the WaPo and the LATimes, including this from the LATimes article:

Some of the e-mails were sent by the White House over special electronic communications links established by the RNC to handle political matters. Using government computers for such e-mails could violate federal laws governing presidential records and could threaten White House claims of executive privilege to shield internal documents from congressional scrutiny.

Rove, a political strategist who has become among the most influential presidential advisors in recent history, has encouraged Cabinet-agency political appointees to pay close attention to electoral politics when making policy and other decisions, and his role is at the heart of the investigations being pushed by congressional Democrats.

Immediately after Kelner briefed investigators Thursday, Waxman sent a letter to every Cabinet secretary asking them to preserve all e-mails received from any White House official who used accounts maintained by the RNC or any "other nongovernment account."

Leahy and Sen. Arlen Specter of Pennsylvania, the ranking Republican on the judiciary panel, wrote a letter to White House Counsel Fred F. Fielding asking that the White House establish an "objective process for investigating this matter, including the use of a mutually trusted computer-forensic expert."

Also Thursday, Rep. John Conyers Jr. (D-Mich.), chairman of the House Judiciary Committee, and Rep. Linda T. Sanchez (D-Lakewood), chairwoman of the panel's administrative law subcommittee, wrote to RNC Chairman Robert M. "Mike" Duncan, demanding "prompt delivery" by next week of all e-mails stored by the RNC related to the firing of the eight U.S. attorneys.

This needs to be done exactly by the book. The WH needs to be treated with the same care and courtesy any potential defendant in any criminal investigation might be treated when there is a suspician of tampering with evidence and of obstructing a lawful investigation. No more and no less. The White House and its staff are subject to the same laws and regulations as every other American. They are neither above the law, nor are they exempt from whatever provisions they happen to find constricting.

For far too long, Karl Rove and his political minions have been given the run of the White House to pull whatever dirty trick was necessary out of their hat to win elections. But an election is not just about winning — it is also about governing and about setting an example for the nation to follow. The Bush White House is an abysmal failure in that regard — and the pendulum of public opinion has swung back to a need for sunshine in the dark crevices of corruption and hubris. It is well past time for Mr. Rove to answer for his many, many sins against the principles upon which this nation was founded.

UPDATE:  I had e-mailed Patrick Fitzgerald's spokesperson last night to see if he had any comment on Mr. Rove's alleged deletion of e-mails from the RNC server during the time that the investigation would have been ongoing.  I just got a response from Randall Samborn that, indeed, the office was aware of the reporting on this matter, that he had received not only my questions but a number of others from news organizations, but that he would be "declining comment (of course) to questions about this matter."  I expected this, but I wanted to quote Randy exactly once I got his "no comment."  If and when I get any further update or news from Mr. Fitzgerald's office, I will of course share it with you guys.

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Christy Hardin Smith

Christy Hardin Smith

Christy is a "recovering" attorney, who earned her undergraduate degree at Smith College, in American Studies and Government, concentrating in American Foreign Policy. She then went on to graduate studies at the University of Pennsylvania in the field of political science and international relations/security studies, before attending law school at the College of Law at West Virginia University, where she was Associate Editor of the Law Review. Christy was a partner in her own firm for several years, where she practiced in a number of areas including criminal defense, child abuse and neglect representation, domestic law, civil litigation, and she was an attorney for a small municipality, before switching hats to become a state prosecutor. Christy has extensive trial experience, and has worked for years both in and out of the court system to improve the lives of at risk children.

Email: reddhedd AT firedoglake DOT com