White House Secrecy

New Lead on Trump’s Obstruction Of Justice

The New York Times has a story that might prove pivotal in any obstruction-of-justice case that Mueller may pursue against Trump:

The special counsel, Robert S. Mueller III, has obtained a letter that President Trump and a top political aide drafted in the days before Mr. Trump fired the F.B.I. director, James B. Comey, which explains the president’s rationale for why he planned to dismiss the director.

The May letter had been met with opposition from Donald F. McGahn II, the White House counsel, who believed that some of its contents were problematic, according to interviews with a dozen administration officials and others briefed on the matter.

Mr. McGahn successfully blocked the president from sending Mr. Comey the letter, which Mr. Trump had composed with Stephen Miller, one of the president’s top political advisers. A different letter, written by the deputy attorney general, Rod J. Rosenstein, and focused on Mr. Comey’s handling of the investigation into Hillary Clinton’s private email server, was ultimately sent to the F.B.I. director on the day he was fired.

The contents of the original letter appears to provide the clearest rationale that Mr. Trump had for firing Mr. Comey. It is unclear how much of Mr. Trump’s rationale focuses on the Russia investigation, although Mr. Trump told aides at the time he was angry that Mr. Comey refused to publicly say that Mr. Trump himself was not under investigation. Mr. Comey later said in testimony to Congress that the president was not under investigation.

Guess we’ll have to wait to find out what is IN the letter.

This comes on an offensive by the Trump team (using the media) to discredit Comey, arguing that Comey had drafted a memo exonerating Hillary Clinton before finishing his investigation.  The source of this information is Senators Grassley and Graham, although it is unclear where they got that information.

If true, it appears that Comey — who did not personally lead the investigation into Clinton — began circulating drafts of his statement to the investigation team as early as May for their feedback. The reason: Everything they had told him was leading to the outcome that there was going to be no criminal finding.

That in itself is not very scandalous. Said an anonymous person familiar with the Clinton investigation:

The person said back in spring 2016, agents and Justice Department officials were talking about how the investigation would end and there was a belief that the evidence was going in a direction to not support bringing charges. This individual said by April 2016 the FBI had reviewed most of the evidence and didn’t find evidence suggesting that Clinton had violated federal law. The person said the FBI wanted to interview her but didn’t believe it was going to change the outcome.

So… Comey prepared a draft memo. Big deal.

Meanwhile, it has become clear that the “official” reason for firing Comey, the memo written by Rod Rosenstein, was clearly after-the-fact bullshit.

Will The Attorney General’s Investigation Into Leaks Snare Trump And Fox News?

Here is a tweet from Fox News this morning at 5:30 a.m.:

By the way, that’s some serious shit, but let’s set aside the content and just note that Fox & Friends linked to a Fox News site talking about information that came from “sources”.

And Donald Trump retweeted it:

There’s one problem. The information from Fox News was actually confidential information from intel sources, i.e., the kind of leak that Trump and Sessions said they would go after.

Look at the awkwardness a few hours later when Fox & Friends interview UN Representative Nikki Haley about the North Korea issue, and she tells them it is confidential.

Ah yes…. and now a flashback:

Trump’s Vacation Doesn’t Stop The Tweets (and Leaks)

Nine tweets so far today from Trump — several attacking the “failing” New York Times for an article about 2020 Republicans contenders against Trump, a few trying to reassure everyone that he is actually “working” on his vacation, and this…

… which seems to unintentionally confirm that there was… collusion?  Ah well.

Why did Trump go after Blumenthal? Probably this:

The last tweet was Blumenthal’s response to Trump today, but the first two tweets talk about Trump’s financials.  Trump REALLY REALLY does not want anybody to go in there.

We seem to have stopped the silly game of staff shake-up, and Kelly is in charge. The Attorney General has asserted that he will crack down on leaks by prosecuting journalists, an odd way to go about it.

Of course, as everyone says, there are leaks of two varieties: (1) run-of-the-mill leaks (gossip and palace intrigue about the process, etc.) and (2) leaks of classified information. I doubt Trump distinguishes between the two.

Of course, some leaks of classified information MIGHT be considered whistleblowing, although I don’t think we’ve seen any of that type yet. In any event, Mother Jones has provided a list of wonderful things we wouldn’t know about were it not for the leaks:

Former National Security Adviser Mike Flynn lied about his contacts with the then-Russian ambassador. On February 9, the Washington Post reported that US intelligence intercepts showed that, despite denials to his colleagues, Flynn had spoken during the transition period to Sergey Kislyak, Russia’s ambassador at the time, about US sanctions on Russia. Flynn had previously told Vice President Mike Pence that there had been no discussion of sanctions, and Pence repeated the claim in nationally televised interviews.

Intelligence and Justice Department officials knew that Flynn had lied, and they warned the White House that Flynn’s lie could be used by the Russian government as blackmail—meaning that Trump’s National Security Adviser was, himself, an apparent national security risk. Flynn stayed on the job for another 18 days before Trump fired him. Trump said he fired Flynn not for the contact with Kislyak, but for lying to Pence about it. Flynn might still be working in the White House if the Washington Post hadn’t received that leaked information.

Trump asked former FBI Director James Comey to drop the investigation into Flynn. On May 16, the New York Times reported that in February, after a meeting with several top national security officials, Trump asked Comey to stick behind in the Oval Office. When they were alone, the president allegedly told Comey that he hoped he “could see [his] way clear to letting this go, to letting Flynn go.”

Comey documented the encounter in a contemporaneous memo that was later read to the Times, and Comey then talked about the request in June during testimonybefore the Senate Intelligence Committee. Those memos were the subject of another New York Times story, this one alleging that Trump had asked Comey for “loyalty.” The White House denied Comey’s characterization of the request.

Two days after the Times revealed the existence of the memos, Deputy Attorney General Rod Rosenstein appointed a special counsel to investigate the Trump campaign’s possible collusion with the Russian government.

Trump called Comey “crazy” and “a nut job” in a meeting with top Russian officials and said that firing Comey relieved pressure from the Russia investigation. The day after Trump fired Comey, he met with Russian Foreign Minister Sergey Lavrov and Kislyak at the White House. During the meeting, Trump reportedly told the Russians, “I just fired the head of the F.B.I. He was crazy, a real nut job…I faced great pressure because of Russia. That’s taken off.”

The official White House account didn’t include this exchange, but on May 19 the New York Times published the comments thanks to an “American official” who read notes of the meeting to a Times reporter. Then-White House Press Secretary Sean Spicer did not dispute the account when asked by the Times for a response.

Jared Kushner reportedly sought to establish a secret line of communication with the Russian government during the transition using Russian-government equipment. On May 26, the Washington Post reported that Kushner, Trump’s son-in-law and one of his key White House advisors, discussed with the Russian ambassador the possibility of “setting up a secret and secure communications channel” between the Trump team and the Russian government, “using Russian diplomatic facilities in an apparent move to shield their pre-inauguration discussions from monitoring, according to US officials briefed on the intelligence reports.” Kushner later denied the Post’s characterization of his meeting, saying instead that he merely sought to engage the Russians on how to solve problems in Syria.

Donald Trump Jr., hoping to get dirt on Clinton, arranged a meeting with a Russian lawyer. Then President Trump helped craft a misleading description of his son’s meetingOn July 8, the New York Times, using “confidential government records,” reported that Donald Trump Jr. arranged a meeting with a Russian lawyer, Kushner, former Trump Campaign Chairman Paul Manafort, and several other people. The next day, the Times reported that the meeting was arranged via email with an explicit promise from a Russian associate of the Trump family that dirt on Hillary Clinton originating from the Russian government would be offered.

Under pressure, Trump Jr. released the email chain to the public—confirming the story—and said the meeting was minor and no big deal. Jay Sekulow, one of the president’s lawyers, denied that the president had anything to do with crafting the response. But then on July 31, the Washington Post, using anonymous sourcesreported that the president was involved in crafting White House’s response to the original story—a response that misleadingly claimed that the meeting was about the Magnitsky Act, a 2012 law that sanctioned Russian officials thought to be involved in killing a Russian lawyer. White House Press Secretary Sarah Huckabee Sanders then acknowledged that the president was involved, proving that the president’s lawyer misled the public about the president’s role in the matter.

Sessions, too, was the subject of leaks. On July 21, citing “current and former US officials,” the Washington Post reported that Sessions had discussed campaign-related matters with the Russian ambassador last year, contrary to what Sessions had said after it was revealed in March that he had met with Russian officials. The day after those revelations came out in March, Sessions recused himself from all Russia-related matters. Trump has since said that he regrets choosing Sessions as his AG and that he would have picked someone else if he had known that Sessions would recuse himself from the Russia investigation. The president hasn’t fired Sessions yet, but the attorney general has extra incentive to crackdown on leaks after unauthorized disclosures put his job in jeopardy.

This last leak cannot be underestimated. Without the leak, Sessions stays as AG, and there is probably no special counsel after Comey is fired.

It’s hard to know if more leaks will come. Reince Priebus, no doubt, was the source of many of them. But I suspect other sources as well. They may have to lay low, or become deeper, like Deep Throat.

 

The Law of Leaks

Today is the day two story of the Flynn resignation and the White House wants us to focus on a different aspect of the story: the rampant leaks from the intelligence community.

But for perspective, let’s start off with Trump’s most interesting morning tweet:

Hmmmm.

During the campaign, Paul Manafort and Carter Page (Trump’s campaign manager and foreign policy adviser, respectively) were let go because of their Russia connections, and Mike Flynn (Trump’s national security adviser) was let go this week (due to “trust issues” says the White House, but trust issue surrounding his lying about speaking with Russia).

Seems like Trump is letting a lot of people go because of what he calls “FAKE NEWS”. And if the leaks are about “fake news”, I wonder why he’s calling them “leaks” at all. Is the intelligence community “leaking” secret information which are lies? Is that his point? There’s a bit of a disconnect there.

But Trump is on a rampage.

Ok.  Well, let’s talk about the price for leaking.

The cornerstone of anti-leak law is a provision of the Espionage Act of 1917, codified at 18 U.S.C. § 793, which criminalizes improperly accessing, handling, or transmitting “information respecting the national defense” with the intent of injuring the United States or aiding a foreign nation. Under Supreme Court precedent, “national defense information” is broadly defined and includes sensitive information relating not only to the military, but also to national security more generally. As Professor Patricia Bellia notes, while “the phrase ‘national defense information’ used throughout §§ 793 and 794 is not coterminous with the phrase ‘classified information,’” nevertheless “a document’s classification status could provide evidence that the document was closely held or that the document, if transmitted, would injure the United States or aid a foreign nation.”

Later amendments added 18 U.S.C. § 798, criminalizing the disclosure of various kinds of classified information including information “concerning the communication intelligence activities of the United States or any foreign government.” Section 798 contains no explicit intent requirement: in order to violate that provision, one need only “knowingly and willfully” communicate the information. Notably, this is the provision of the law which FBI Director Comey famously determined Hillary Clinton did not violate, despite demands for prosecution from President Trump and other political opponents. While the law facially allows prosecution for mere gross negligence, in reality it does seem to require some degree of intent.

The other law that often forms the basis of leak prosecutions is the general theft statute at 18 U.S.C. § 641. This provision makes it a crime to steal, sell, or convey “any record, voucher, money, or thing of value of the United States or of any department or agency thereof.” The federal courts of appeals differ on applying this statute to leaks of government information: while all of the circuits recognize the government’s property interest in records and documents (so if you physically steal actual records, the statute most certainly applies), some refuse to extend that to the underlying information contained in the records.

Other laws criminalize more specific leaks. The Intelligence Identities Protection Act, for instance, makes it a crime to reveal the identity of covert agents. Former CIA officer John Kiriakou was indicted under this act and the Espionage Act for leaking classified information relating to the CIA’s detention and interrogation program. He pled guilty in 2012 and was the first CIA officer to serve a prison sentence for leaking. This is also the substantive offense at the heart of the Plame affair, discussed below.

And beyond those substantive offenses criminalizing leaking itself, there’s the crime of making false statements. Under 18 U.S.C. § 1001, it is a felony offense to “knowingly and willfully . . . make[] a materially false” statement in the course of an investigation by any branch of the federal government. So if you lie about a material fact in the course of a leak investigation (see more below on investigations), you’ve committed another substantive felony, and one that is very frequently prosecuted.

This provision is used far more frequently than the others, in part because of the aggravating nature of lying to law enforcement and in part because the offense is easier to prove. As the saying goes, it’s not the crime, it’s the coverup.

For example, the high-profile leak investigation of the naming of covert CIA operative Valerie Plame might have involved the Intelligence Identities Protection Act, but prosecutors ended up indicting Scooter Libby, Vice President Cheney’s chief of staff, on multiple counts of obstruction of justice, perjury, and making false statements. As The Washington Post reported at the time, the U.S. Attorney on the case “noted that proving illegal disclosure of classified information under various federal statutes is difficult,” in part because many require proving specific knowledge or intent.

Besides criminal violations, the government also employs non-disclosure agreements.  Often these involve pre-publication review: if you are a former intelligence officer, and you’re writing an article or book, you need to run it by the intelligence agency per the NDA.

Aaaaand that’s it, really.

Here’s something else worthy of note: leak investigations are overseen by DOJ’s National Security Division and conducted by the FBI. In a 2006 interview, David Szady, former assistant director for counterintelligence at the FBI, outlined how leak investigations proceed. First, the “victim agency” (the owner of the classified material) refers the matter to the Department of Justice, who decides whether to open an investigation. Importantly, investigations are opened only when the leaked information is accurate—that is, the mere fact of an investigation is an indirect confirmation of the accuracy of the leak. DOJ then sends the file to the FBI, who conducts the actual investigation, typically reviewing documentation and signals intelligence but sometimes through interviews and polygraphs.

There is something troubling about the intelligence agencies working against the President as many Democrats and Republicans have pointed out.  I certainly agree, but this does not strike me as an all-out war between the intelligence community against Trump.

It is certainly not a slow-motion coup d’etat as some say.  And look, If the information about the Trump campaign’s apparent collusion with the Russians were not leaked, it would have been smothered and covered up. Congress refused to act. The Department of Justice has shown zero interest. The president’s occasional remarks about the matter carry all the conviction of O.J. Simpson’s vow to search for the real killers.

What, exactly, were investigators supposed to do with their information if they did not share it with the public? Evidence that close associates of the current president of the United States had contacts with a hostile foreign-intelligence service is not a matter of purely historical interest. It’s not just a law-enforcement matter. The whistle blowers are blowing whistles, at immense professional and legal risk to themselves, because the people in charge of protecting the system against foreign spy penetration are themselves implicated in that penetration.

Besides, if they could bury Trump, they would have done so long before the election.  And even as it related to Flynn — when they knew Flynn was lying to Veep Pence about his Russia contacts, they went to Obama (still President) and THEN TO TRUMP.  That doesn’t sound like an intelligence community out to subvert President Trump.  In fact, Trump seems to have his own feud with the intelligence community, often degrading their “intelligence” by using quotation marks (as I just did).

During the campaign, Trump often bragged that he had better intelligence than the generals, a comment that was dismissed as bizarre.  But perhaps not.  Perhaps Trump has been the beneficiary of Russian intelligence (although its accuracy has yet to be determined).  Perhaps Trump is the Manchurian candidate who doesn’t know he is Manchurian.

Lot Of Hypocrisy About Leaks

The Pentagon Papers was a leak from Daniel Ellsberg. It helped de-legitimize the Vietnam War.

Deep Throat was Mark Felt, a top FBI official. He gave Woodward and Bernstein the deep background on the Watergate scandal.

Edward Snowden leaked information about US government surveillance programs.

Chelsea Manning leaked documents and video relating to Iraqi air strikes, diplomatic cables, and Gitmo, most of which did not put the US in good light.

Vice President Cheney outed Valerie Plame as a CIA operative in order to exact revenge on her husband, a critic of the Bush Iraq War policy.

To most people, one of more of these people are heroes — one of the “good guys”.  But they were all leakers.

Everybody constructs reasons for leaks they like and leaks they don’t like. But it is hard to come up with a non-hypocritical reason for distinguishing “good leaks” from “bad leaks”.

We’re at a remarkable point in history where the president accuses his own intelligence community of working against him, as exhibited by his tweetstorm this morning:

What sounds hollow about all this is that Trump was totally fine — in fact he PRAISED — Wikileaks when it printed the John Podesta emails.

I know, I know. The Podesta emails weren’t technically leaks.  They were hacks by the Russians.  But doesn’t that make it WORSE?  Think about it.  The President is fine with Russian intelligence stealing secured information and making it public — in fact he encouraged it! — but he’s upset about “illegal” leaks from American intelligence sources?

It really does beg the question — whose side is the President on?  At best, it cements the notion that he is in the pocket of Russia.

Then And Now

53 years ago today, an outgoing President Eisenhower said:

“In the councils of government, we must guard against the acquisition of unwarranted influence, whether sought or unsought, by the military-industrial complex. The potential for the disastrous rise of misplaced power exists and will persist.”

He went on:

“We must never let the weight of this combination endanger our liberties or democratic processes. We should take nothing for granted. Only an alert and knowledgeable citizenry can compel the proper meshing of the huge industrial and military machinery of defense with our peaceful methods and goals, so that security and liberty may prosper together.”

That was the famous military-industrial complex speech, and how it posed a potential threat to democracy.

Below the fold is Obama's speech today, about how national security measures pose a threat to democracy, and some of the changes needed to ensure privacy.

Not The Same Thing, Sarah

Inexplicable?

Spleak

I've sort of been busy lately, so I haven't followed the Wikileaks things closely.  But if I were to offer a premature uninformed opinion, it would be along the lines of "so what?"

Is it an embarrassment to the U.S.?  Of course.  Is it surprising that we might diss our allies behind their back?  No.  And we know they diss us, too.

Is there any social utility to leaking and publishing this stuff?  Not that I can see.  This isn't the Pentagon Papers, i.e., there's no evidence that the government is covering up something or worse, lying about anything.  It just seems to be about transparency for the sake of transparency, and I don't think every tiny aspect of our government should be transparent.  That includes FBI investigations in progress, war plans, and, yes, diplomatic strategy.

Should the person or person who leaked this be prosecuted?  Absolutely.

But other than that, I'm largely "meh" about the whole thing.

Now some cat's fighting, with an awesome soundtrack.

 

Unintelligent Intelligence

Everyone should read the Washington Post's recent effort in investigative reporting, Top Secret America. As a piece of journalism, it represents what actual journalism should be — not what passes for journalism in today's he-said-she-said creaming-heads world.

That said, the subject of the piece is distressing. Since George W. Bush, we've had this reckless, ridiculous, uncoordinated expansion of intelligence agencies, all sucking up tremendous sums of money, all with little oversight, and all producing floods of data…and it's all a waste because the emphasis is on sucking in lots of data, and little is done about comprehending it all.

Everyone should read the Washington Post's recent effort in investigative reporting, Top Secret America. As a piece of journalism, it represents whatactual journalism should be — not what passes for journalism in today's he-said-she-said creaming-heads world.

That said, the subject of the piece is distressing. Since George W. Bush, we've had this reckless, ridiculous, uncoordinated expansion of intelligence agencies, all sucking up tremendous sums of money, all with little oversight, and all producing floods of data…and it's all a waste because the emphasis is on sucking in lots of data, and little is done about comprehending it all.

In other words, the over-collection of data leads to a myopic view of things — an intelligence community where real threats don't get investigated because they're buried in a morass of data points.

Snippets:

  • There are nearly 1,300 government organizations and 2,000 private companies working in 10,000 locations across the country.
  • There are 854,000 people who have top-secret security clearances.
  • There are 33 building complexes for top-secret work that are under construction or have been built just in Washington, DC since 9/11… totaling 17 million square feet of space.
  • Analysts turn out 50,000 intelligence reports every year… you can bet many of them never get read.
  • And, at least 263 organizations have been created or reorganized as a response to 9/11… that of course means hiring lots and lots of people. But don't ask where Osama bin Laden is… nobody knows.

UPDATE – Ezra adds another point:

And in case you think it'll be easy to roll any of this back, consider the fact that we still take our shoes off and throw away water bottles when we attempt to board a plane.

The McClellan Book

You know, it doesn’t say anything that many of us didn’t already know.  It’s just nice to see someone on the inside of the Bush Administration admit that these things went on:

WASHINGTON (CNN) — The incidents that first left then-White House press secretary Scott McClellan "dismayed and disillusioned" about Washington involved the surreptitious release of classified information, McClellan said Thursday.

The first of the "defining moments," McClellan told NBC’s "Today" show, was when CIA operative Valerie Plame’s name was leaked to the media.

The second, he said, was when he learned that President Bush had secretly declassified a report on Iraq so Vice President Dick Cheney and Cheney aide I. Lewis "Scooter" Libby could disclose it to reporters.

"We had been out there talking about how seriously the president took the leaking of classified information, and here we were learning that the president had authorized the very same that we were criticizing," McClellan said, the day after his controversial memoir hit bookstore shelves.

***

As White House spokesman, McClellan defended Bush’s policies during much of the Iraq war, the aftermath of Hurricane Katrina and the scandal that followed the leak of Plame’s identity.

But he now says the administration was mired in propaganda and political spin and played loose with the truth at times.

In March 2007, Libby was found guilty of perjury, obstruction of justice and making false statements for lying about what he said to reporters about Plame. Bush later commuted Libby’s 2½-year sentence prison sentence, but left in place Libby’s fine and probation.

McClellan told "Today" on Thursday, "I had been assured — and [then-senior adviser] Karl Rove and ‘Scooter’ Libby both — I asked them point-blank, ‘Were you involved in this in any way?’ And both assured me in unequivocal terms, ‘No, we were not involved.’ "

"And Rove even told the president, and the president and VP directed me to go out and exonerate ‘Scooter’ Libby on this, and that’s when I went to ‘Scooter’ and asked him the question," McClellan said.

***

McClellan also discussed how, he said, Bush decided to go to war against Iraq soon after the 2001 terrorist attacks on the U.S. The president ordered aides to make arrangements for it, McClellan told "Today."

"I think very early on, a few months after September 11, he made a decision that we’re going to confront Saddam Hussein, and if Hussein doesn’t come fully clean, then we’re going to go to war. There was really no flexibility in his approach," McClellan said. "Then it was put on the advisers: How do we go about implementing this? How do we go about doing this?"

So, there you have it.  From someone on the inside.  They lied.  They leaked.  They manipulated.

Also:

In hindsight, McClellan views the war as a mistake by a president swept up by his own propaganda and a grand plan of seeding democracy in the Middle East by overturning Saddam Hussein‘s regime.

McClellan says Bush and his aides became so wrapped up in trying to shape the story to their political advantage that they ignored facts that didn’t fit the picture. He blames it on a "permanent campaign culture" that pervades Washington.

Over 4,000 U.S. soldiers dead.  Because the Bush Administration was obsessed with a second term and engaged in groupthink.

What is "groupthink"?  It plagued the Johnson administration, too.  It is a term coined by social psychologist Irving Janis.  In order to make groupthink testable, Irving Janis devised eight symptoms that are indicative of groupthink.  They are:

1. Illusions of invulnerability creating excessive optimism and encouraging risk taking.
2. Rationalising warnings that might challenge the group’s assumptions.
3. Unquestioned belief in the morality of the group, causing members to ignore the consequences of their actions.
4. Stereotyping those who are opposed to the group as weak, evil, disfigured, impotent, or stupid.
5. Direct pressure to conform placed on any member who questions the group, couched in terms of “disloyalty”.
6. Self censorship of ideas that deviate from the apparent group consensus.
7. Illusions of unanimity among group members, silence is viewed as agreement.
8. Mindguards — self-appointed members who shield the group from dissenting information.

So, future presidents, what have we learned?

The wingnut blogosphere is blaming the messenger as they always do, attacking McClellan as a liberal, a liar, a charlatan trying to sell books, and claiming they never liked him anyway.

The White House is perhaps even more spittle-flecked than the bloggers, calling McClellan "disgruntled" and even a traitor.

And so it shall always be.

Strong Words

In an editorial in today’s New York Times, Thomas H. Kean and Lee H. Hamilton (the chairman and vice chairman, respectively, of the 9/11 commission) outright and openly accuse the CIA and the White House of obstruction:

The commission’s mandate was sweeping and it explicitly included the intelligence agencies. But the recent revelations that the C.I.A. destroyed videotaped interrogations of Qaeda operatives leads us to conclude that the agency failed to respond to our lawful requests for information about the 9/11 plot. Those who knew about those videotapes — and did not tell us about them — obstructed our investigation.

There could have been absolutely no doubt in the mind of anyone at the C.I.A. — or the White House — of the commission’s interest in any and all information related to Qaeda detainees involved in the 9/11 plot. Yet no one in the administration ever told the commission of the existence of videotapes of detainee interrogations.

They close with this:

As a legal matter, it is not up to us to examine the C.I.A.’s failure to disclose the existence of these tapes. That is for others. What we do know is that government officials decided not to inform a lawfully constituted body, created by Congress and the president, to investigate one the greatest tragedies to confront this country. We call that obstruction.

AFTERNOON UPDATE:  Just came over the wires — the Justice Department will launch a criminal probe into the destruction of the tapes.  Of course, my confidence in the Justice Department is pretty low….

Riiiiip

Well, well, well….

Look how much the Bush Administration has spent for paper-shredding over the past few years.

Trend_graph

Each bar off the vertical axis represents $500,000 dollars.

John Cook:

In 2000, the feds spent $452,807 to make unpleasant truths go away; by 2006, the "Cheney Effect" had bumped that number up to $2.9 million. And by halfway through 2007, the feds almost matched that number, with $2.7 million and counting. Pretty much says it all.

Policy Trumps Facts: Part XXVII

Yet another example emerges of the Bush Adminstration keeping you in the dark:

A surgeon general’s report in 2006 that called on Americans to help tackle global health problems has been kept from the public by a Bush political appointee without any background or expertise in medicine or public health, chiefly because the report did not promote the administration’s policy accomplishments, according to current and former public health officials.

The report described the link between poverty and poor health, urged the U.S. government to help combat widespread diseases as a key aim of its foreign policy, and called on corporations to help improve health conditions in the countries where they operate.

It’s nice that we have all these experts in government who are knowledgeable about things like global warming and health care, and the government KEEPS that information muzzled.

The report was blocked by a 37 year old guy named William R. Steiger, who is George H.W. Bush’s godson, and whose parents are friends with Rummy and Cheney.   What qualified him to 86 a report on global health?  Was he a doctor?  An epidemiologist?  Nah.  He’s a specialist in education and a scholar of Latin American history .

Gonzales: Another Bit Of Perjury Yesterday

This centers around a meeting held on March 10, 2004 with members of the Bush Administration and the "Gang of 8", members of Congress who head up intelligence committees.  The topic discussed was —  well, that’s the issue. Here’s what Alberto Gonzales said under oath on Tuesday:

At a heated Senate Judiciary Committee hearing Tuesday, Gonzales repeatedly testified that the issue at hand was not about the terrorist surveillance program….Instead, Gonzales said, the emergency meetings on March 10, 2004, focused on an intelligence program that he would not describe.

Gonzales, who was then serving as counsel to Bush, testified that the White House Situation Room briefing sought to inform congressional leaders about the pending expiration of the unidentified program and Justice Department objections to renew it.

…."Not the TSP?" responded Sen. Charles E. Schumer, D-N.Y. "Come on. If you say it’s about other, that implies not. Now say it or not."

"It was not," Gonzales answered. "It was about other intelligence activities."

Other intelligence activities? Not the TSP? Despite the recollections of other participants that the meeting on that day was precisely about the TSP?

Well, guess what? It turns out the dates of all the TSP meetings were the subject of a memo from John Negroponte last year. So it’s all down on paper. And you know what date shows up? March 10, 2004.

Short version: Gonzales lied (again) before Congress.

Olbermann does a good job of breaking it down.  As the reporter says, "this is a really, really big deal and a big problem for Gonzales. … The legal expert I talked to tonight said this is a clear case of perjury."

CNN is on this, too.  Well, everybody is, I guess.  When the nation’s top lawyer commits perjury, you know the nation is deep in the crapper.

Luckovich

Hardin-Smith offers advice:

Here’s a tip for Bush Administration cronies:  if you are going to lie under oath, on the record, with a video camera in your face, don’t lie about something for which there is documentary evidence directly contradicting your statements.  It makes you look unprepared, panicked and sloppy.  Even petty thieves get their stories straighter than this in magistrate courts across the nation.  Juries still find them guilty, and see right through their lying skeezeball stories, but at least they have enough pride in their thievery to put a little work into covering their own asses.  It’s especially pathetic when you are given a number of the questions in advance.

Flashback a few months ago to an interesting conversation between Bill Moyers and Jon Stewart regarding Gonzales:

So prescient.

Glenn Greenwald on Gonzales: “That is what Alberto Gonzales does. He lies to protect the President. And the President will never fire him. Gonzales isn’t keeping his job despite his willingness to lie to Congress, but because of it. Congress has no choice but to act meaningfully — impeachment of Gonzales and a Special Prosecutor — and if they do not, then, I suppose, one could say that Congress deserves to be lied to.”

UPDATE:  Oh, man — as the day gets on, it gets even worse for Gonzales:

FBI Director Robert S. Mueller said Thursday the government’s terrorist surveillance program was the topic of a 2004 hospital room dispute between top Bush administration officials, contradicting Attorney General Alberto Gonzales’ sworn Senate testimony.

Mueller’s statement came hours after Senate Democrats called for a perjury investigation against Gonzales and subpoenaed top presidential aide Karl Rove in a deepening political and legal clash with the Bush administration.

“Lost” White House E-mail Update

Here’s the story so far.

There are two laws at issue here.

One is the Presidential Records Act, which requires that all communications and documents from and to the White House be preserved.  This includes, among many other things, e-mail.

Then there is the Hatch Act.  This requires that campaigning and other such matters NOT be done within the White House and with government equipment.  For example, the staff of a President cannot solicit voters from the White House using the White House phone.  They cannot send out mass e-mails using White House computers.  This is because the property of the White House belongs to the government — i.e., you and me.  We pay for it, so it doesn’t belong to Republicans or Democrats.

So a lot of White House people necessarily wear more than one hat.   Karl Rove, for example, as Chief of Staff to the President of the United States, has duties within that official realm.  But he also has duties as titular head of the Republican Party.  So he has to be careful that he does the right work within the right realm.

And apparently, he and others were not doing this.  They were using their email accounts with the Republican National Commitee to conduct official U.S. business.  This came to light in the U.S. Attorney purge scandal, when some of the documents released showed that Kyle Sampson (the chief of staff to Attorney General Alberto Gonzales) and others were communicating about official government business with email addresses like ksampson@gwb43.com, i.e. non-governmental servers.

Using non-governmental email accounts to conduct governmental business is not a violation of the Hatch Act.  You might be hearing references to it on the news — but don’t get sucked in.  It’s a red herring. The Hatch Act is a one-way street.  You cannot conduct campaign-related activity with government property (such as computers), but it doesn’t prevent government people from doing official government work on with, say, their AOL account. 

No, the problem here is the Presidential Records Act (or "PRA").  If official government-related emails are sent through non-governmental computers, those records have to be preserved.

The question here is why.  Why would Rove and others use RNC email accounts to conduct official government business.  Think about it.  Is this even smart?  One would think that the Bush Administration, so concerned about national security, would not allow official government work to be conducted through relatively insecure email accounts.  So why was this the practice?

Well, the answer is obvious.  These other computer servers don’t comply with the Presidential Records Act, since they are not government computers.  So the emails can get "lost" there.  Rove and others intentionally used non-White House email servers, so that those emails would get "lost" and never have to be turned over should an investigation arise.  Or, as John Cole put it:

Losing emails from non-official servers run by the Republican party is not a bug, it is a feature. This wasn’t a mistake- it was a plan.

Indeed.

Fortunately, like the war in Iraq, the plan was not well-thought out.  And, we learn this morning, the RNC didn’t routinely delete all the emails that went through their server. 

Why not?

Because back in August 2004, when Plamegate was being investigated, the RNC stopped deleting the White House staff’s emails in response to "unspecified legal inquiries".  Legal note: it is illegal to destroy evidence if you reasonably think it might be relevant to a pending investigation.  The RNC wisely stopped deleting those emails from its severs.

With one exception:  Karl Rove.

According to Mr. Kelner [counsel for RNC], although the hold started in August 2004, the RNC does not have any e-mails prior to 2005 for Mr. Rove. Mr. Kelner did not give any explanation for the e-mails missing from Mr. Rove’s account, but he did acknowledge that one possible explanation is that Mr. Rove personally deleted his e-mails from the RNC server.

Mr. Kelner also explained that starting in 2005, the RNC began to treat Mr. Rove’s emails in a special fashion. At some point in 2005, the RNC commenced an automatic archive policy for Mr. Rove, but not for any other White House officials. According to Mr. Kelner, this archive policy removed Mr. Rove’s ability to personally delete his e-mails from the RNC server. Mr. Kelner did not provide many details about why this special policy was adopted for Mr. Rove. But he did indicate that one factor was the presence of investigative or discovery requests or other legal concerns. It was unclear from Mr. Kelner’s briefing whether the special archiving policy for Mr. Rove was consistently in effect after 2005.

This is obstruction of justice, and it rests right at the feet of Karl Rove.

SIDENOTE:  Throw into this mix the issue of "executive privilege".  The legal maxim is this: you can’t claim privilege if you have already given it up.  For example, if I have a privileged conversation with my attorney, and then I go and blab the conversation to the newspaper or some third party, I can’t go back later and say, "Well, it was a confidential conversation between me and my attorney".  I have waived the privilege. 

"Executive privilege" applies to communications between the President and his advisors.  It does not apply to communications among the advisors (unless those communications reflect advice given to the President).  But in any event, if this stuff is so confidential and sensitive, then one would not have carried on these communications through RNC computer servers.  Read this for a better run-down.

The latest news on the executive privilege front is this:

White House Counsel Fred Fielding is now claiming that the emails Karl Rove and his colleagues sent from RNC and Bush Campaign domains — in a transparent attempt to avoid the Presidential Records Act and keep them permanently hidden from investigators — are nonetheless covered by executive privilege.

Yes, you read that right: emails sent from non-government-owned computers using non-government email addresses are nevertheless part of the President’s executive apparatus and may not be examined by Congress.

Here’s the thing.  It doesn’t matter a whit what Fielding says.  The Judiciary Committee can simply subpoena the RNC for information on its servers.  The White House cannot claim privilege over matters that are not under its custody and control (well, they can try, but it will just get laughed out of the courthouse).  [P.S.  Read the link above; Kleiman has a pretty good secnario of how this might all play out]

UPDATE:  Glenn Greenwald does the yeomans’ work in catalogueing the history of the Bush Administration’s past foibles in "losing" documents.  His examples range from the handling of Hurricane Katrina to the treatment of Jose Padilla to the removal of eight federal prosecutors.  He closes with this:

Rove and company were well-aware of their legal obligations to preserve their communications, and were equally aware that using their White House emails to communicate would result in such preservation. This lengthy record by the Bush administration of finding ways to "lose" key documents relevant to investigations and judicial proceedings ought to leave little doubt about the corrupt intent motivating this behavior.

I should add, to those readers who don’t know, that I am an attorney whose major client is a major tobacco company.  If we attempted to "lose" or hide documents and emails in this manner, my colleagues and I would face serious charges.  What Rove has done is beyond the pale.

Breaking: White House “Lost” 5 Million Emails

In just a two-and-a-half year period – March 2003 to October 2005.

That’s astounding.  This from a report just issued by CREW.

Crewpra

Of course, "lost" doesn’t necessarily mean what people think it means.  Just because an email is deleted, and even deleted from the "deleted trash" folder, doesn’t mean it’s gone. 

From Justin over at ABC:

…But “deleted” doesn’t mean what it used to, according to computer forensic experts. Indeed, deleted emails and files, even years-old ones, are recovered all the time.

“We do it every day of the week,” said Beryl Howell of Stroz Freidburg LLC, a Washington, D.C.-based firm that specializes in recovering lost data for businesses complying with court orders, criminal investigators and others….

“They look at their backup systems and backup tapes,” Howell said, adding that “with any electronic storage media, you can do forensic recovery and find deleted data.”