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Category Two Documents

Good thing Rove resigned and finally distracted me from my FISA focus, huh? And in the process of looking up something relating to Rove, I noticed these two letters between Conyers and the RNC (and the RNC’s lawyer) regarding documents it won’t turn over. Most of these documents fall into "category one;" that is, documents the White House has asserted privilege over. But there’s a separate "category two" that attracted my attention:

The White House describes these documents, which the Committee understands to include hundreds of pages, as relating to communications with or among White House officials concerning candidates for U.S. Attorney positions in the Central District of California, the Middle District of Tennessee, and the District of Montana. The White House does not claim executive privilege over these documents, but instead maintains that they "fall outside the Committee’s investigative authority" because they relate to the President’s purportedly "constitutional prerogative" to nominate U.S. Attorneys, and directs you not to disclose them without a further demonstration of relevance by the Committee. [my emphasis]

Let’s take these out of order, starting with Montana.

Montana, you see, never did need a replacement candidate. Bill Mercer was, of course, playing roles at main DOJ at the same time as he was (and is) US Attorney for Montana. But he never quit. And when it came time to go before the Senate to be confirmed as Associate Attorney General, he balked, withdrawing his nomination just days before the Senate Judiciary dealt with it. When Mercer balked in such a fashion, I noted,

As I said, Bill Mercer hasn’t really been focused on day to dayevents in Montana for several years, since he first got a no-nominationacting appointment at Main DOJ. But one thing has been occurring–ornot occurring–in Montana. The biggest beneficiary of Jack Abramoff’slargesse, [former Montana Senator] Conrad Burns, has somehow managed to avoid the increasingscrutiny that John Doolittle and Bob Ney received. There has long beena question of whether Mercer has retained his appointment in Montana inan effort to protect Burns, and now it appears he can do little butthat.


Trust me–the Administration felt it important to retain Mercer outin Montana. It’s something Gonzales himself emphasized in his statementon Mercer’s resignation:

Gonzales said in a statement that he was "very pleased that thedepartment will continue to benefit" from Mercer’s talent in Montana.

Itsure sounds like they were worried they’d have to forgo Mercer’sservices in Montana, and therefore decided to sacrifice him at Main DOJ.

In other words, the discussion of whom to replace Mercer with may well have been as much about how to protect Conrad Burns (and the larger Abramoff mess) as much as it had to do with finding a nice Republican hack to serve as Montana’s top law enforcement officer.

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Marcy Wheeler aka Emptywheel is an American journalist whose reporting specializes in security and civil liberties.