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Profile: Harriet E. Miers
Harriet E. Miers was a participant or observer in the following events:
According to reporter and author Charlie Savage, the White House staff quickly coalesces into two camps: “Bush People[,] mostly personal friends of the new president who shared his inexperience in Washington,” which includes President Bush’s top legal counsels, Alberto Gonzales and Harriet Miers, both corporate lawyers in Texas before joining Bush in Washington. The second group is “Cheney People—allies from [Vice-President Dick] Cheney’s earlier stints in the federal government (see May 25, 1975, November 18, 1980, 1981-1992, 1989, and June 1996) who were deeply versed in Washington-level issues, a familiarity that would allow their views to dominate internal meetings. These included [Defense Secretary Donald] Rumsfeld and other cabinet secretaries, key deputies throughout the administration, and David Addington, Cheney’s longtime aide who would become a chief architect of the administration’s legal strategy in the war on terrorism” (see July 1, 1992 and (After 10:00 a.m.) September 11, 2001). Savage will observe, “Given the stark contrast in experience between Cheney and Bush, it was immediately clear to observers of all political stripes that Cheney would possess far more power than had any prior vice president.”
'Unprecedented' Influence - Cheney will certainly have “unprecedented” influence, according to neoconservative publisher William Kristol, who himself had served as former Vice President Dan Quayle’s chief of staff. “The question to ask about Cheney,” Kristol will write, is “will he be happy to be a very trusted executor of Bush’s policies—a confidant and counselor who suggests personnel and perhaps works on legislative strategy, but who really doesn’t try to change Bush’s mind about anything? Or will he actually, substantively try to shape administration policy in a few areas, in a way that it wouldn’t otherwise be going?”
Expanding the Power of the Presidency - Cheney will quickly answer that question, Savage will write, by attempting to “expand the power of the presidency.” Savage will continue: “He wanted to reduce the authority of Congress and the courts and to expand the ability of the commander in chief and his top advisers to govern with maximum flexibility and minimum oversight. He hoped to enlarge a zone of secrecy around the executive branch, to reduce the power of Congress to restrict presidential action, to undermine limits imposed by international treaties, to nominate judges who favored a stronger presidency, and to impose greater White House control over the permanent workings of government. And Cheney’s vision of expanded executive power was not limited to his and Bush’s own tenure in office. Rather, Cheney wanted to permanently alter the constitutional balance of American government, establishing powers that future presidents would be able to wield as well.” [Savage, 2007, pp. 7-9] Larry Wilkerson, the chief of staff for Secretary of State Colin Powell, will say after leaving the administration: “We used to say about both [Defense Secretary Donald Rumsfeld’s office] and the vice president’s office that they were going to win nine out of 10 battles, because they were ruthless, because they have a strategy, because they never, never deviate from that strategy. They make a decision, and they make it in secret, and they make it in a different way than the rest of the bureaucracy makes it, and then suddenly, foist it on the government—and the rest of the government is all confused.” [Unger, 2007, pp. 299]
Signing Statements to Reshape Legislation, Expand Presidential Power - To that end, Cheney ensures that all legislation is routed through his office for review before it reaches Bush’s desk. Addington goes through every bill for any new provisions that conceivably might infringe on the president’s power as Addington interprets it, and drafts signing statements for Bush to sign. In 2006, White House counsel Bradford Berenson will reflect: “Signing statements unite two of Addington’s passions. One is executive power. And the other is the inner alleyways of bureaucratic combat. It’s a way to advance executive power through those inner alleyways.… So he’s a vigorous advocate of signing statements and including important objections in signing statements. Most lawyers in the White House regard the bill review process as a tedious but necessary bureaucratic aspect of the job. Addington regarded it with relish. He would dive into a 200-page bill like it was a four-course meal.” It will not be long before White House and Justice Department lawyers begin vetting legislation themselves, with Addington’s views in mind. “You didn’t want to miss something,” says a then-lawyer in the White House. [Savage, 2007, pp. 236]
Entity Tags: David S. Addington, Bradford Berenson, Alberto R. Gonzales, Charlie Savage, William Kristol, Richard (“Dick”) Cheney, Donald Rumsfeld, Bush administration (43), Harriet E. Miers, George W. Bush, Lawrence Wilkerson
Timeline Tags: Civil Liberties
Members of President Bush’s staff who are with Bush at the Emma E. Booker Elementary School in Sarasota, Florida, are informed of the second plane crashing into the World Trade Center but then have to find a television in order to see the coverage of it. [White House, 8/12/2002; Rove, 2010, pp. 250; KFDI, 12/11/2012] While Bush goes into a classroom to participate in a reading demonstration (see 9:02 a.m. September 11, 2001), several members of his traveling staff stay in the “staff hold.” [Rove, 2010, pp. 250] The staff hold, according to deputy White House press secretary Scott McClellan, is “a private room set up as a quiet work space with secure and non-secure phones for us to use during a presidential visit.” [McClellan, 2008, pp. 101] If you pick up one of the secure phones, Bush’s senior adviser, Karl Rove, will later write, “someone with a quiet military voice answers, you make a request, and a moment or two later, you’re talking to anybody you want, anywhere in the world.” [Rove, 2010, pp. 250] The staff hold, on this occasion, is next to the classroom where Bush is participating in the reading demonstration. [McClellan, 2008, pp. 101]
Staffers Think the First Crash Was an Accident - Members of Bush’s staff who stay in the staff hold while Bush joins the reading demonstration include White House chief of staff Andrew Card, White House communications director Dan Bartlett, White House staff secretary Harriet Miers, and Rove. [Rove, 2010, pp. 250] Also in the room, according to Rove, are Major Paul Montanus, one of the president’s military aides, and “the military doctor, the surgeon, and the surgical nurse with a full operating kit” who “stand ready to go to the aid of the president if he falls ill or is shot or somehow injured.” [KFDI, 12/11/2012] These individuals are aware of the first crash at the WTC. “All of us are still trying to find out information about that, to confirm what our instincts were,” Bartlett will recall, “and our instincts were that this was a tragic accident.”
Staffers Learn about the Second Crash - After the second plane hits the WTC at 9:03 a.m. (see 9:03 a.m. September 11, 2001), the staffers quickly learn about the incident in calls to their cell phones or pager messages. “[Y]ou could see it, the rippling effect of people being informed about what was happening,” Bartlett will recall. However, he will say, “most of the tone was disbelief and not knowing what was going on.” Bartlett learns about the crash in a call from his assistant at the White House, who tells him, “You’re not going to believe this, Dan, but the other tower was hit.” Bartlett asks his assistant what she means and she says, “Another plane, another plane hit the other tower, World Trade Center.” [White House, 8/12/2002; White House, 8/12/2002] Rove learns about the crash when Susan Ralston, his executive assistant, calls him with the news. [New Yorker, 9/25/2001] Card, meanwhile, learns about it from Navy Captain Deborah Loewer, the director of the White House Situation Room, who is traveling with the president in Florida and is with Card in the staff hold (see Shortly After 9:03 a.m. September 11, 2001). [Dayton Daily News, 3/16/2013; Priess, 2016, pp. 240-241]
No Television Has Been Set Up in the Staff Hold - Unusually, a television has not been set up in the staff hold, so the staffers there are initially unable to see the coverage of the second attack. “Normally there’s a television in the staff hold,” Rove will comment. “But for some strange reason, this morning at Booker Elementary there was no television in there.” Rove therefore has to go out of the room, and run “up and down the hallways of the elementary school trying to find a television.” He eventually finds one in a classroom and then hurriedly rolls it into the staff hold. But he then has trouble connecting it to cable. The first socket he plugs it into doesn’t work. But after he plugs it into another socket, he gets a signal and the TV starts showing footage of the second crash. [KFDI, 12/11/2012; LBJ Presidential Library, 9/3/2013] Around the same time, those in the staff hold make contact with their colleagues at the White House and work with them on coordinating a response to the attacks. [White House, 8/12/2002; White House, 8/12/2002]
Scott Muller. [Source: New York Times]Sometime in 2003, CIA General Counsel Scott Muller raises the idea of destroying videotapes of the interrogations of al-Qaeda leaders Abu Zubaida and Abd al-Rahim al-Nashiri during discussions in 2003 with Justice Department lawyers. But the Justice Department lawyers advise against destroying them. It is unknown what the basis for their advice is. Muller similarly approaches White House Deputy Chief of Staff Harriet Miers with the idea and she also advises him against it (see Between 2003-Late 2005). [New York Times, 12/8/2007]
Harriet Miers. [Source: Public domain via Wikipedia]White House official Harriet Miers is informed by CIA General Counsel Scott Muller that the CIA has made video recordings of detainee interrogations and is told that the CIA is considering destroying the tapes. She advises not to destroy them. [ABC News, 12/7/2007; New York Times, 12/8/2007] The CIA is canvassing opinion on whether the tapes can be destroyed, and it repeatedly asks Miers about what it should do with the videotapes (see November 2005), which are said to show questionable interrogation methods. These discussions are reportedly documented in a series of e-mails between the CIA and the White House. One person involved is CIA Acting General Counsel John Rizzo. Miers’ opinion is asked because the CIA apparently thinks its interrogation and detention program was “imposed” on it by the White House, so the decision about what to do with the tapes should be made “at a political level.” Miers continues to advise the CIA that the tapes should not be destroyed, but the CIA destroys them anyway in late 2005 (see November 2005). [Newsweek, 12/11/2007] It is unclear when this happens. One account says Miers is first consulted in 2003, another in 2005. Miers is deputy chief of staff to the President until early 2005, when she becomes White House Council. [New York Times, 12/19/2007] The CIA also asks other White House officials for their opinions, but there are contradictory reports of their advice (see (2003-2004)).
White House chief of staff Andrew Card (see (July 11, 2003)) holds a late-night meeting of what press secretary Scott McClellan will call “select senior advisers”—Card, McClellan, communications director Dan Bartlett, National Security Adviser Condoleezza Rice, Rice’s deputy Stephen Hadley, White House counsel Alberto Gonzales, and Gonzales’s subordinate Harriet Miers. One topic of discussion is the recent report that the White House had scrubbed a claim of an Iraq-Niger uranium buy from a speech by President Bush in October 2002 (see October 5, 2002 and October 6, 2002), months before Bush’s State of the Union address where he did make such a claim (see Mid-January 2003 and 9:01 pm January 28, 2003). The media reports that Hadley was warned to delete the claim by CIA Director George Tenet. Hadley confirms receiving the warning, and tells the assemblage that, three months later, he had forgotten Tenet’s warning. “Signing off on these facts is my responsibility,” he says. “And in this case, I blew it. I think the only solution is for me to resign.” Hadley is distressed that Tenet had, in McClellan’s words, “been made to look like the scapegoat, since he believed it was nobody’s fault but his own.” McClellan will call Hadley’s offer to resign “selfless .. [his attempt to] clear the name of someone he felt had taken an unfair degree of blame, and to accept his own responsibility for an honest mistake whose consequences were now playing out before a worldwide audience.” The others quickly reject Hadley’s proffered resignation, and decide, as McClellan will recall, “that an approach of openness, forthrightness, and honesty was now essential.” Bartlett and Hadley are delegated to “inform the world as to what had happened and why,” and Hadley will admit to having forgotten his conversation with Tenet” (see October 6, 2002). [McClellan, 2008, pp. 177-178]
The Justice Department’s White House liaison, Susan Richmond, sends an email to all of the department’s presidentially appointed officials, including US Attorneys, reassuring them that the newly re-elected President Bush “will not ask for letters of resignation.” Many had requested clarification as to whether they would be asked to remain or resign during Bush’s second term. Richmond reminds the recipients that “each of us serves at the pleasure of the president.” It is around this same time that Justice Department lawyer Kyle Sampson (see 2001-2003) becomes involved in discussions with White House counsel Harriet Miers about firing all 93 US Attorneys (see November 2004). Sampson tells Miers that firing all 93 US Attorneys may not be a good idea, and the US Attorneys have an expectation of serving their statutory four-year terms, which do not begin to expire until the fall of 2005. [US Department of Justice, Office of the Inspector General, 9/29/2008] Notwithstanding the reassurance, Mary Beth Buchanan, the head of the Executive Office for US Attorneys, begins circulating forms for resignation to the US Attorneys. She will later explain, “At the end of the first administration, I was asked to provide United States attorneys with guidance for those who wished to resign at the end of the first administration.” [US House of Representatives, Committee on the Judiciary, 6/15/2007 ]
White House chief counsel Alberto Gonzales discusses firing some or all of the 93 US Attorneys with Kyle Sampson, a Justice Department counsel for Attorney General John Ashcroft (see 2001-2003). White House emails do not definitively show that White House political chief Karl Rove is behind the push to fire the Attorneys, though they do indicate Rove has some involvement. According to a January 2005 email from Sampson (see January 9, 2005), Sampson discusses the matter with Gonzales in late December, and, the email states, “As an operational matter we would like to replace 15-20 percent of the current US Attorneys—underperforming ones.” It is clear that Sampson is referring to himself and Gonzales as “we.” (Gonzales will later deny any recollection of any such discussion with Sampson.) The White House will later say that the idea of firing all 93 US Attorneys originated with White House counsel Harriet Miers and not Rove (see November 2004). White House spokesperson Dana Perino will say: “Karl Rove has a recollection of hearing it from Harriet and thinking it was a bad idea. There is nothing in this email that changes that.… [It] does not contradict nor is it inconsistent with what we have said.” Miers will not begin her stint as White House counsel until February 2005, calling Perino’s version of events into question, even though Perino will later say that Miers was involved in issues surrounding the job for several months before officially assuming the post. [US News and World Report, 3/16/2007; Talking Points Memo, 3/16/2007; Talking Points Memo, 2011] In March 2007, the Justice Department’s Director of Public Affairs Tasia Scolinos will issue a statement claiming that Gonzales “has no recollection of any plan or discussion” to replace the US Attorneys when he was still White House counsel. Scolinos will note that the December 2004 discussion took place while Gonzales was preparing to transition to the Justice Department as attorney general, and will add that such discussions would have been “appropriate and normal” because the White House was “considering different personnel changes administration-wide.” [US News and World Report, 3/16/2007]
John McKay, the US Attorney for Western Washington State (see October 24, 2001), receives a telephone call from Chris Vance, the state’s Republican Party chair. Vance is unhappy with the results of the Washington gubernatorial election between Christine Gregoire (D-WA) and Dino Rossi (R-WA); Rossi was initially declared the winner, but Gregoire forced a recount and was declared the winner, a declaration Vance and state Republicans are disputing (see December 23, 2004 - January 12, 2005). Vance will later say he feels it necessary to call McKay as a fellow Republican. He will later recall the gist of his discussion with McKay, saying, “Republican activists were furious because they felt that you had a Republican secretary of state, a Republican county prosecutor… and a Republican US Attorney, but still they saw the governorship slipping away, and they were just angry.” He will recall McKay saying something like: “Stop right there, I can’t talk about this. If we are doing any kind of investigation or not, I can’t comment.” Vance will recall, “I dropped it.” Vance is in regular contact with White House political chief Karl Rove, and it is likely that the two discuss the gubernatorial election, though Vance will deny any memory of speaking with Rove about McKay or any desire for a federal investigation of the election. At the same time, prominent businessman and Republican activist Tom McCabe, angry that McKay is not pursuing allegations of voter fraud against Gregoire, begins contacting the White House to demand McKay’s firing (see Late 2004). McKay will later testify that he “vaguely remembered” receiving the call from Vance, but remembers nothing “significant” from the conversation. McKay will later be placed on a list of US Attorneys to be fired, most likely for political reasons (see December 7, 2006 and December 20, 2006). White House emails will not clarify why McKay is targeted for firing, though McKay will recall that White House counsels Harriet Miers and William Kelley cite the anger among Washington State Republicans over the 2004 elections and his refusal to pursue allegations of voter fraud as one reason behind his firing. [Seattle Times, 3/14/2007; Talking Points Memo, 2011] In January 2005, McKay is contacted by the chief of staff of US Representative Doc Hastings (R-WA) about the possibility of voter fraud in the election (see January 4, 2005). In early 2005, Vance and prominent state Republicans will call on McKay and the Justice Department to launch probes into voter fraud allegations that they say benefited Gregoire. [Seattle Times, 3/13/2007] Gregoire will win the election by 133 votes after a lengthy judicial review. Allegations from state Republicans of voter fraud that supposedly benefited Gregoire will be dismissed as baseless. Both sides will allege that mistakes in vote counting and voting reports led to erroneous vote tallies, and both will allege that hundreds of disenfranchised felons cast ballots in the election. The court will find that 1,678 illegal votes were cast in the elections, though it will remain unclear who received the most benefit from those votes. [Seattle Post-Intelligencer, 6/5/2005]
Republican Party officials in Wisconsin prepare a report, “Fraud in Wisconsin 2004: A Timeline/Summary,” that purports to document 65 “voter fraud” instances that they claim had a negative impact on the 2004 elections. US Attorney Steven Biskupic will investigate the claims in the report and find no evidence that crimes were committed. The document is later released by the House Judiciary Committee as part of its investigation into the 2006 US Attorney firings (see March 10, 2006, December 7, 2006, and December 20, 2006); Biskupic is listed for firing just after the report is disseminated (see March 2, 2005). The document is written by Chris Lato, the communications director for the Wisconsin Republican Party, under the auspices of the state GOP’s executive director Rick Wiley. Wiley commissioned the report for White House political chief Karl Rove; in 2007, a source described in the Milwaukee Journal-Sentinel as having “knowledge of the situation” will tell a reporter: “The report was prepared for Karl Rove. Rick wanted it so he could give it to Karl Rove.” The 30-page report spans the time period from August 31, 2004 through April 1, 2005, and contains reports and summatives with titles such as “RPW [Republican Party of Wisconsin] News Release: Evidence of Election Fraud Piles Up.” In March 2005, White House counselor Dan Bartlett, whose primary role is handling communications issues, identifies Wisconsin as one of the states from which the White House had “received complaints about US Attorneys.” In April 2005, Rove sends a copy of the report to White House counsel Harriet Miers, with a handwritten note calling it “a good summary” of the various voter fraud allegations in Wisconsin, and a notation about an allegation of more votes being cast in certain precincts than those precincts have registered voters, with “proof” of that allegation being that a “local newspaper” assigned “an investigative reporter” to look into the charges. “I was assured Saturday while I was in Milwaukee that the issue of more voters than people on the registration list is real,” Rove writes to Miers. The information in the RPW report will later be incorporated into a larger report disseminated in July 2005 by the American Center for Voting Rights Legislative Fund (ACVR), entitled “Vote Fraud, Intimidation & Suppression in the 2004 Presidential Election.” ACVR officials Brian Lunde and Mark “Thor” Hearne will write that their report “documents hundreds of incidents and allegations from around the country.… [T]housands of Americans were disenfranchised by illegal votes cast on Election Day 2004.… [P]aid Democrat operatives were far more involved in voter intimidation and suppression activities than were their Republican counterparts.” The report concludes that “government-issued photo ID” requirements will “help assure” that “no American is disenfranchised by illegal votes.” [Milwaukee Journal-Sentinel, 4/7/2007 ; In These Times, 4/18/2007; US House of Representatives, Committee on the Judiciary, 7/30/2009 ] US Attorney David Iglesias will later say of ACVR and similar organizations: “I hope the media keeps shining the spotlight on groups like the American Center for Voting Rights, the ACVR, who has been engaging in this type of voter suppression actions, especially targeting elderly people and minorities. And I mean, if you’re an American citizen who is not a felon, you have the right to vote.” [Democracy Now!, 6/4/2008] Miers will later testify that she has a vague recollection that she believed there was another explanation besides voter fraud for Rove’s “more voters than people on the registration list” characterization. She will recall hearing from the Justice Department “[t]hat the voting precinct in the county lines didn’t match. So in fact, there were instances where it really could be people voting in larger numbers than actually was the county population.” She will say that she believes she learned this from Deputy Attorney General Paul McNulty, but will not state this with certainty. “[I]t may be that it came from Bill Kelley,” she will say, referring to her deputy William Kelley. [US House of Representatives, Committee on the Judiciary, 6/15/2009 ]
Entity Tags: Chris Lato, Steven M. Biskupic, William Kelley, Brian Lunde, American Center for Voting Rights, Rick Wiley, American Center for Voting Rights Legislative Fund, Wisconsin Republican Party, Mark (“Thor”) Hearne, Dan Bartlett, David C. Iglesias, Milwaukee Journal-Sentinel, Paul J. McNulty, Harriet E. Miers, Karl C. Rove, House Judiciary Committee
Timeline Tags: Civil Liberties
White House deputy counsel David Leitch emails Justice Department lawyer Kyle Sampson (see 2001-2003) regarding the proposed firings of some or all of the 93 US Attorneys (see Late December 2004). Leitch is forwarding an email from Colin Newman, a paralegal in the White House counsel’s office. Newman, via Leitch, is relaying questions from White House political chief Karl Rove. According to Newman, “Karl Rove stopped by to ask [Leitch]… how we planned to proceed regarding US Attorneys, whether we are going to allow all to stay, request resignations from all and accept only some of them, or selectively replace them, etc.” In his forward, Leitch asks Sampson if they can discuss the matter. [US Department of Justice, 1/9/2005 ; Washington Post, 3/12/2007; ABC News, 3/15/2007; US Department of Justice, Office of the Inspector General, 9/29/2008; US House of Representatives, Committee on the Judiciary, 7/30/2009 ; Talking Points Memo, 2011] In 2009, Rove will testify about his memory of this email exchange. He will say that he went to Leitch’s office because “I assume I heard rumors that we might be going down the path of trying to get—replace all 93” US Attorneys. He will recall “being told at some point that the idea was dead, and they weren’t going to be pursuing it. I don’t know whether that happened immediately after this or somewhat later.… I don’t know whether it was Mr. Leitch or Ms. Miers [White House counsel Harriet Miers] that conveyed that they were not going to replace all 93.” Rove will say that he did not support Sampson’s plan to remove and replace “15 to 20 percent” of the sitting US Attorneys (see January 9, 2005). “What I was in favor of was Justice Department making an evaluation of the US Attorneys and recommending who they felt to the president ought to be replaced,” Rove will say. “I had no knowledge of the workings of the individual offices sufficient enough to give me a basis on which to make any judgment about whether anybody should be replaced or how many should be replaced.… [I]t was not my role. It was the role of the Justice Department. The White House didn’t have the tools, I certainly didn’t have the tools to make a proper evaluation.” [US House of Representatives, Committee on the Judiciary, 7/7/2009 ]
Justice Department lawyer Kyle Sampson (see 2001-2003) responds to an email from White House deputy counsel David Leitch regarding the proposed firing of some or all of the nation’s 93 US Attorneys (see January 6, 2005). Sampson confirms that he has spoken with White House counsel Alberto Gonzales about the proposal “a couple of weeks ago” (see Late December 2004). Sampson delineates his “thoughts” to Leitch in four points. He notes that while US Attorneys serve at the “pleasure of the president,” they generally serve four-year terms. (Sampson is aware that all 93 US Attorneys have been informed that they will not be asked to resign as President Bush’s second term commences—see November 4, 2004—and is also aware that Gonzales and White House deputy counsel Harriet Miers are discussing replacing some or all of the US Attorneys—see November 2004 and Late December 2004.) It would be “weird” to ask them to leave before their terms are complete. Sampson goes on to note the “historical” practice of allowing US Attorneys to complete their terms, even if there is a party change in the administration; he does not mention that the incoming 1992 Clinton administration, and the incoming 2000 Bush administration, both asked all or almost all 93 US Attorneys to leave without regard to completing their terms (see March 24, 1993 and January 2001). Sampson then writes that “as an operational matter, we would like to replace 15-20 percent of the current US Attorneys—the underperforming ones. (This is a rough guess; we might want to consider doing performance evaluations after Judge [Gonzales] comes on board.) The vast majority of US Attorneys, 80-85 percent, I would guess, are doing a great job, are loyal Bushies, etc., etc. Due to the history, it would certainly send ripples through the US Attorney community if we told folks that they got one term only (as a general matter, the Reagan US Attorneys appointed in 1981 stayed on through the entire Reagan administration; Bush 41 even had to establish that Reagan-appointed US Attorneys would not be permitted to continue on through the Bush 41 administration—indeed, even performance evaluations likely would create ripples, though this wouldn’t necessarily be a bad thing).” Sampson predicts that “as a political matter… I suspect that when push comes to shove, home-state senators likely would resist wholesale (or even piecemeal) replacement of US Attorneys they recommended.” However, he writes, “if Karl [Rove, the White House political chief] thinks there would be policitical [sic] will to do it, then so do I.” [US Department of Justice, 1/9/2005 ; ABC News, 3/15/2007; US Department of Justice, Office of the Inspector General, 9/29/2008; US House of Representatives, Committee on the Judiciary, 7/7/2009 ; Talking Points Memo, 2011] The original email seems to come from another aide in the White House Counsel’s Office, Colin Newman, who told Leitch that Rove “stopped by to ask you (roughly quoting) ‘how we planned to proceed regarding US Attorneys, whether we were going to allow all to stay, request resignations from all and accept only some of them, or selectively replace them, etc.’ I told him that you would be on the hill all day for the judge’s hearing, and he said the matter was not urgent.” Leitch responded by forwarding the email to Sampson with the comment, “Let’s discuss.” [US House of Representatives, Committee on the Judiciary, 6/15/2009 ] Newman’s email is dated January 6, and the reference to “the judge’s hearing” seems to refer to White House counsel Alberto Gonzales’s contentious hearing on the Geneva Conventions before the Senate Judiciary Committee on that date (see January 6, 2005).
Downplaying White House Involvement - In the 2008 investigation of the US Attorney firings by the Justice Department’s Office of the Inspector General (see September 29, 2008), Leitch will say that he has no recollection of discussing the matter with Sampson, Rove, or anyone else. He will leave the White House Counsel’s Office shortly after this email exchange. [US Department of Justice, Office of the Inspector General, 9/29/2008] In 2009, Miers will testify that she does not recall specifics of these discussions. She will say: “I don’t have a recollection of that, but it wouldn’t surprise me if that happened, that would be some general discussion of, well, we have the Justice Department saying we have a certain number that we feel should be looked at and that that is better because it doesn’t create the upheaval that removing all of the US Attorneys would have. I think the original discussion did not involve the kind of plan, as that term has been used, that eventually evolved.” At this point, Miers will say, the idea of firing a large number of US Attorneys on the same day had not been discussed. The Justice Department, she will say, would make the decisions as to whom, if anyone, should be terminated, not the White House. Asked specifically about Rove’s Office of Political Affairs (OPA), she will say that it would merely play a consulting role in the process: “I did ask that they assist, in the areas where there might be removals, the location of sources for recommendations. And so the political office was as it is called; they had the political piece.” The Counsel’s Office would not ask OPA for recommendations of replacements for the ousted US Attorneys, she says: “We would turn to them for identification of the sources that you could go to and ask for people to be considered. You wouldn’t turn to them and say tell us who we ought to recommend.” However, “if they had a preference for, someone, they would state it so that they certainly had input.” [US House of Representatives, Committee on the Judiciary, 6/15/2009 ] In 2009, Rove will deny ever seeing the email or discussing the matter with Sampson, and will say, “The implication that somehow this was addressed to me and I somehow received it is inaccurate.” [US House of Representatives, Committee on the Judiciary, 7/7/2009 ] Miers claims no memory of Rove ever attending a Judicial Selection Committee meeting to discuss the removal of a specific US Attorney. She will recall discussions of the removal of US Attorney David Iglesias (see October 18, 2001) by OPA members, including Rove. [US House of Representatives, Committee on the Judiciary, 6/15/2009 ]
Entity Tags: Colin Newman, Alberto R. Gonzales, Bush administration (43), White House Counsel’s Office, White House Office of Political Affairs, Harriet E. Miers, D. Kyle Sampson, Karl C. Rove, Clinton administration, David Leitch, David C. Iglesias
Timeline Tags: Civil Liberties
As part of the shakeup of the White House staff for President Bush’s second term, Karl Rove replaces Harriet Miers as deputy chief of staff for policy. Rove, widely viewed as an entirely political official, now has a role in coordinating domestic policy, economic policy, even homeland and national security. The Washington Post’s Peter Baker will soon observe: “During President Bush’s first term, outsiders often suspected that Karl Rove was really behind virtually everything. Now it’s official.… [T]he new position largely formalizes what was already true, noting that Rove has quietly played a vital role in shaping domestic policy from the inception of the Bush presidency. Now, for the first time, he will have a formal hand in foreign policy as well.” White House press secretary Scott McClellan will later write: “[Rove’s appointment] reconfirmed and strengthened the sense that the Bush administration was deeply committed to maintaining the permanent [political] campaign as normal operating procedure in Washington. Not only would governing continue to be an offshoot of campaigning, but the master campaigner would now be openly in charge of governing—thus discarding even the pretense of a separation between the two disciplines.” Democratic National Committee chairman Terry McAuliffe says: “Empowering Rove in this way shows that Bush cares more about political positioning than honest policy discussions. Bush knows that Rove is neither an economic nor a national security expert; he’s simply an ideological strategist who has a history of bending the truth and using dirty tricks to get his way.” Rove’s predecessor, Office of Management and Budget chief Joshua Bolten, retorts: “Karl’s always been a very substantive contributor on the policy side. He’s better known for his political hat, but he knows how to take that hat off.” [Washington Post, 2/9/2005; McClellan, 2008, pp. 246-247]
Kyle Sampson, the deputy chief of staff for Attorney General Alberto Gonzales (see February 15, 2005), sends a list of the 93 current US Attorneys to White House counsel Harriet Miers. Each US Attorney is listed in either plain type, boldface, or “strikeout,” meaning a line is drawn through their name. In a follow-up email on March 2, Sampson explains that, “putting aside expiring terms, the analysis on the chart I gave you is as follows:
Bold - “Recommend retaining; strong US Attorneys who have produced, managed well, and exhibited loyalty to the president and attorney general.
Strikeout - “Recommend removing; weak US Attorneys who have been ineffectual managers and prosecutors; chafed against administration initiatives, etc.
Nothing - “No recommendation; not distinguished themselves either positively or negatively.”
On the copy of the chart released to the House Judiciary Committee in 2009, most of the US Attorneys’ names are redacted. The ones who are not redacted are listed as follows:
Paul K. Charlton, Arizona (see November 14, 2001 and December 2003): nothing;
Bud Cummins, Eastern Arkansas (see January 9, 2002 and April or August 2002): strikeout.
Debra W. Yang, Central California: boldface.
Kevin Ryan, Northern California (see August 2, 2002 and February 2003): nothing. (Ryan’s name is in a different font than the others, suggesting that it has been re-entered; it is difficult to tell from the copy of Sampson’s chart if his name is in boldface or not.)
Carol C. Lam, Southern California (see November 8, 2002 and February 7-11, 2005): strikeout.
Patrick Fitzgerald, Northern Illinois (see October 24, 2001): nothing.
Margaret M. Chiara, Western Michigan (see November 2, 2001 and July 12-16, 2004): strikeout.
Thomas B. Heffelfinger, Minnesota: strikeout.
Dunn O. Lampton, Southern Mississippi: strikeout.
Todd P. Graves, Missouri (see October 11, 2001 and March 2002): nothing.
Daniel G. Bogden, Nevada (see November 2, 2001 and February 2003): nothing.
Christopher J. Christie, New Jersey (see December 20, 2001): boldface.
David C. Iglesias, New Mexico (see October 18, 2001 and 2002): boldface.
Anna Mills S. Wagoner, Central North Carolina: strikeout.
Mary Beth Buchanan, Western Pennsylvania: boldface.
John McKay Jr., Western Washington (see October 24, 2001 and May 2002): strikeout.
Steven M. Biskupic, Wisconsin: strikeout.
Thomas A. Zonay, Vermont: boldface.
On March 2, Sampson sends an email to Miers indicating some revisions to the chart. Heffelfinger and Biskupic have their statuses changed to “strikeout” (referenced above), and Matt Orwig, the US Attorney for the Eastern District of Texas, is listed in boldface. Miers, a Texas native, responds, “Good to hear about Matt actually.” Sampson replies, somewhat cryptically and with careless punctuation and capitalization: “yes he’s good. oversight by me.” [US House of Representatives, Committee on the Judiciary, 6/15/2009 ]
Entity Tags: Patrick J. Fitzgerald, Carol C. Lam, Matt Orwig, Steven M. Biskupic, Thomas A. Zonay, Thomas B. Heffelfinger, Todd P. Graves, Mary Beth Buchanan, Anna Mills S. Wagoner, Alberto R. Gonzales, Margaret M. Chiara, Paul K. Charlton, John L. McKay, D. Kyle Sampson, Kevin J. Ryan, Christopher J. (“Chris”) Christie, Daniel G. Bogden, Debra Wong Yang, David C. Iglesias, Harriet E. Miers, Dunn O. Lampton, House Judiciary Committee, H.E. (“Bud”) Cummins III
Timeline Tags: Civil Liberties
The White House Office of Political Affairs is notified about the initiative to fire some US Attorneys (see November 2004, November 4, 2004, Late December 2004, January 6, 2005, January 9, 2005, and March 2, 2005). Sara Taylor, the new White House political affairs director (replacing Karl Rove, who has moved up to become deputy chief of staff, but who is still Taylor’s immediate supervisor—see Late January 2005), will later tell Justice Department investigators (see September 29, 2008) that shortly after she takes the position, she becomes aware that the White House is considering replacing some US Attorneys. Taylor will tell investigators that White House counsel Harriet Miers and others in Miers’s office and in the Justice Department were discussing the idea that the beginning of President Bush’s second term provides a good opportunity to replace some of the Attorneys. [US Department of Justice, Office of the Inspector General, 9/29/2008; US House of Representatives, Committee on the Judiciary, 7/7/2009 ]
Justice Department official Kyle Sampson (see 2001-2003), now the deputy chief of staff for Attorney General Alberto Gonzales (see February 15, 2005) as well as the Special Assistant US Attorney for the Eastern District of Virginia, sends an email to Gonzales’s successor, senior White House counsel Harriet Miers. Sampson is responding to a late February request for recommendations for firing US Attorneys in case the White House decides to ask for resignations from a “subset” of those officials (see February 24, 2005 and After). In the email, Sampson ranks all 93 US Attorneys, using a set of three broad criteria. Strong performers exhibit “loyalty to the president and attorney general” (see January 9, 2005). Poor performers are, he writes, “weak US Attorneys who have been ineffectual managers and prosecutors, chafed against administration initiatives, etc.” A third group is not rated at all. US Attorney David Iglesias of New Mexico (see October 18, 2001, 2002 and November 14-18, 2005 ) and Kevin Ryan of the Northern District of California (see August 2, 2002) appear on the list as “recommended retaining.” Gonzales has approved the idea of firing some of the US Attorneys.
Denoted for Firing - US Attorneys listed for possible firing are: David York of the Southern District of Alabama; H.E. “Bud” Cummins of the Eastern District of Arkansas (see January 9, 2002 and April or August 2002); Carol Lam of the Southern District of California (see November 8, 2002); Greg Miller of the Northern District of Florida; David Huber of the Western District of Kentucky; Margaret Chiara of the Western District of Michigan (see November 2, 2001); Jim Greenlee of the Northern District of Mississippi; Dunn O. Lampton of the Southern District of Mississippi; Anna Mills S. Wagoner of the Middle District of North Carolina; John McKay of the Western District of Washington state (see October 24, 2001, Late October 2001 - March 2002, and January 4, 2005); Kasey Warner of the Southern District of West Virginia; and Paula Silsby of Maine. Sampson sends a revised listing later this evening with two more names indicated for possible firing: Thomas B. Heffelfinger of Minnesota and Steven Biskupic of the Eastern District of Wisconsin. Sampson says he based his choices on his own personal judgments formed during his work at the White House and the Justice Department, and on input he received from other Justice Department officials. He will later testify that he cannot recall what any specific official told him about any specific US Attorney. He will call this list a “quick and dirty” compilation and a “preliminary list” that would be subject to “further vetting… down the road” from department leaders. [US Department of Justice, 2005 ; US Department of Justice, 2/15/2005; Washington Post, 3/12/2007; US Department of Justice, 3/13/2007 ; US Department of Justice, Office of the Inspector General, 9/29/2008; Talking Points Memo, 2011] Days later, a Federalist Society lawyer will email Mary Beth Buchanan, the director of the Executive Office of US Attorneys, with a recommendation for Lam’s replacement (see March 7, 2005).
Later Recollections - In the 2008 investigation of the US Attorney firings by the Justice Department’s Office of the Inspector General (see September 29, 2008), Gonzales will tell investigators that he supported the concept of evaluating the US Attorneys’ performance to see “where we could do better.” Gonzales will say that he instructed Sampson to consult with the senior leadership of the Justice Department, obtain a consensus recommendation as to which US Attorneys should be removed, and coordinate with the White House on the process. Gonzales will say that he never discussed with Sampson how to evaluate US Attorneys or what factors to consider when discussing with department leaders which US Attorneys should be removed. Sampson will say that he did not share the list with Gonzales or any other department officials, but will say he believes he briefed Gonzales on it. Gonzales will say he recalls no such briefing, nor does he recall ever seeing the list. Then-Deputy Attorney General James Comey and then-Associate Deputy Attorney General David Margolis will tell OIG investigators about their discussions with Sampson. Comey will recall telling Sampson on February 28, 2005 that he felt Ryan and Lampton belonged in the “weak” category, and will say he may have denoted Heffelfinger and another US Attorney, David O’Meilia, as “weak” performers. Comey will say that he was not aware of Sampson’s work with the White House in compiling a list of US Attorneys to be removed. He will say that he considered his conversation with Sampson “casual” and that Sampson “offhandedly” raised the subject with him. Margolis will recall speaking briefly with Sampson about “weak” performers among the US Attorneys in late 2004 or early 2005, but recall little about the conversation. He will remember that Sampson told him about Miers’s idea of firing all 93 US Attorneys (see November 2004), and agreed with Sampson that such a move would be unwise. Margolis will recall Sampson viewing Miers’s idea as a way to replace some US Attorneys for President Bush’s second term, an idea Margolis will say he endorsed. He was not aware that political considerations may be used to compile a list of potential firings. He will recall looking at a list Sampson had of all 93 Attorneys. He will remember citing Ryan and Lampton as poor performers, as well as Chiara. He will remember saying that eight other US Attorneys might warrant replacement. Sampson will tell OIG investigators that he received no immediate reaction from Miers to the list, and will say he did not remember discussing the basis for his recommendations with her. As for McKay, though Washington state Republicans are sending a steady stream of complaints to the White House concerning McKay’s alleged lack of interest in pursuing voter fraud allegations (see December 2004, Late 2004, Late 2004 or Early 2005, January 4, 2005, and January 4, 2005), Sampson will claim to be unaware of any of them and say he would not have used them as justification to advocate for McKay’s termination. [US Department of Justice, Office of the Inspector General, 9/29/2008]
Entity Tags: Carol C. Lam, Kevin Ryan, Anna Mills S. Wagoner, Margaret M. Chiara, Bush administration (43), Paula Silsby, Steven M. Biskupic, Alberto R. Gonzales, US Department of Justice, Thomas B. Heffelfinger, John L. McKay, Jim Greenlee, Mary Beth Buchanan, Harriet E. Miers, James B. Comey Jr., David C. Iglesias, D. Kyle Sampson, David Huber, David Margolis, Kasey Warner, David York, David O’Meilia, Executive Office for US Attorneys (DOJ), Greg Miller, Dunn O. Lampton, H.E. (“Bud”) Cummins III
Timeline Tags: Civil Liberties
Timothy Griffin, after being elected as a US representative in 2010. [Source: Politico]Timothy Griffin, a former Republican National Committee aide and a veteran Republican political operative (see October 26, 2004), learns that Kyle Sampson, deputy chief of staff for Attorney General Alberto Gonzales (see February 15, 2005), has identified the US Attorney for Eastern Arkansas, Bud Cummins, as one of several US Attorneys who should be fired (see January 9, 2005 and March 2, 2005). Griffin, a lawyer who has twice attempted to secure that position for himself, learns of the news from Sara Taylor, the White House’s new director of political affairs (replacing Karl Rove, who still supervises all political issues from his new position as deputy chief of staff—see Late January 2005). Griffin is considering joining Taylor’s staff, but even before his hiring, he attends several “directors” meetings at the White House. After one of these meetings, Taylor shows him the list of US Attorneys slated for dismissal. The list includes Cummins. Taylor says she does not know why Cummins is on the list, but she believes it may be because he lost his sponsor, Senator Tim Hutchinson (R-AR), when Hutchinson lost his bid for re-election in 2002. Griffin joins Taylor’s staff, and shortly thereafter meets with White House counsel Harriet Miers, who also tells him that the White House is planning to fire Cummins. She asks Griffin if he is interested in the position, and he says he would like the job after completing a stint in the White House. Miers warns him that it might be difficult to have him approved for the position after having worked for the White House Office of Political Affairs. Miers, Rove, and Taylor discuss Griffin’s employment options through the rest of March. Miers tells Rove that she has considered making Griffin a political appointee in one of the two US Attorneys’ offices in Arkansas, or perhaps having Griffin replace the deputy director of the Office of Legal Policy at the Justice Department. Rove responds, “What about him for the US Attorney for the Eastern District of Arkansas?” Miers replies that such a move is “definitely a possibility” because the current US Attorney, Cummins, is going to be replaced. Miers tells Rove that Griffin has spoken with her about his desire for the slot, but for now he wants to stay with the White House. Taylor responds to the exchange by saying in part, “My fear is they end up putting him [Griffin] at Justice (which he does not want to do); it’s a year before he’s made US Attorney, if ever.” In another email, Taylor writes to Rove that Griffin “would love to be US Attorney—he’d love to come here in the meantime.” Griffin accepts the position of deputy director of political affairs at the White House, promising Taylor that he will stay in the position at least after the November 2006 election unless the US Attorney position opens up before then. For his part, Cummins, who is toying with the idea of leaving the position, speaks with Griffin periodically throughout the year about Griffin taking the position after Cummins resigns. Cummins will later say that he always assumed the choice as to if and when to resign would be his, and that he always assumed Griffin would get the job because he is so well connected politically. Griffin later says he never pushed Cummins to leave, but will tell Justice Department investigators (see September 29, 2008), “I was laying low.” Griffin will say that to his mind, Cummins’s removal and his own ascension to the post were two separate things. “I didn’t know why he was being fired,” Griffin will say, “but I knew that if he was going to be fired, then I wanted to be considered for that job.” Griffin, a member of the Army Reserve, will leave his White House position in August 2005 to serve as a Judge Advocate General officer in Iraq, and will stay in close contact with officials in both the White House and the Justice Department throughout his yearlong tour of duty. [US Department of Justice, Office of the Inspector General, 9/29/2008]
Entity Tags: Harriet E. Miers, Bush administration (43), White House Office of Political Affairs, H.E. (“Bud”) Cummins III, US Department of Justice, Sara Taylor, J. Timothy Griffin, Karl C. Rove, Republican National Committee, D. Kyle Sampson, Tim Hutchinson
Timeline Tags: Civil Liberties
Associate White House counsel Dabney Friedrich, acting at the behest of her superior, White House counsel Harriet Miers, sends Kyle Sampson, deputy chief of staff for Attorney General Alberto Gonzales (see February 15, 2005), an email asking him to confirm Miers’s understanding that the “plan” to fire and replace selected US Attorneys (see November 2004, November 4, 2004, Late December 2004, January 6, 2005, January 9, 2005, and March 2, 2005) is “to wait until each has served a four-year term. She was operating under the assumption that we would act to remove/replace right away.” Sampson replies that he, Friedrich, Miers, and Gonzales should discuss the matter, but he has recommended that the attorneys should be replaced “selectively” after their four-year terms expire. Sampson writes that to do otherwise might cause consternation among home-state politicians and “internal management trouble” within the Justice Department. Sampson emphasizes that he is expressing his views and not those of Gonzales. Friedrich replies with her agreement, and says she would be surprised to hear differently from either Miers or Gonzales. Little is said among the principals in the attorney-firing process for several months. The first expirations will not begin until November 2005, and according to a later Justice Department investigation (see September 29, 2008), Sampson will decide to “back-burner” the issue until later in the year. [US Department of Justice, Office of the Inspector General, 9/29/2008; US House of Representatives, Committee on the Judiciary, 6/15/2009 ]
Scott Jennings. [Source: Brendan Smialowski / New York Times]Scott Jennings, an aide in Karl Rove’s White House Office of Political Affairs (OPA), sends two emails to Rove’s deputy, veteran Republican political operative Timothy Griffin (see October 26, 2004), about the White House’s desire to fire US Attorney David Iglesias of New Mexico (see October 18, 2001). The emails are part of a larger “chain” sent back and forth between Jennings, Griffin, and other officials. Jennings writes in the first email, sent on May 2: “[W]hat else I can do to move this process forward? Is it too early to formulate a list of extremely capable replacements? There are several I know personally and can recommend.” The email contains a synopsis of claims by Bernalillo County Sheriff Darren White and several New Mexico Republicans that Iglesias did not aggressively pursue “hundreds” of voter fraud charges using evidence White and the Republican activists provided (see September 7 - October 6, 2004). The email also states that Iglesias went against the wishes of New Mexico Republicans in creating his “bogus” voter fraud task force (see August 17, 2004, September 7 - October 6, 2004, and September 23 - October 2004), and placed a New Mexico Democrat on the task force who reportedly stated that voter fraud violations were entirely imaginary. The second email, from June 28, reads in part: “I would really like to move forward with getting rid of NM USATTY. I was with CODEL [the New Mexico congressional delegation] this morning, and they are really angry over his lack of action on voter fraud stuff. Iglesias has done nothing. We are getting killed out there.” Griffin responds to the second email, saying: “I hear you. It may not be that easy, though. The president has to want to get rid of him. I will ask counsel’s office to see if it is even in contemplation.” Griffin is referring to the White House Counsel’s Office, headed by Harriet Miers. Leslie Fahrenkopf, a lawyer in the White House Counsel’s Office, tells Griffin: “He is on my radar screen. I raised it with Harriet a few weeks ago (see May 12 - June 9, 2005) and she would like to wait until his term is up in October 2005. If you think it merits another conversation with her, let me know.” Rove will later testify that he knows nothing of Jennings’s communications with Griffin, and will say: “Obviously, Scott had strong feelings about this, having been involved out there. And, from the review of the documents, he was freelancing a little bit here, apparently.… But it’s clear Scott, from reading this, ‘please let me know what else I can do to move this process forward,’ he’s clearly trying to get Iglesias out.” As for Griffin’s response, Rove will say: “I see this as a brushback. I see Tim Griffin telling a subordinate, I understand, not that easy, this is the president, not you, who is in charge, and I will check on this. I see this as a brushback pass.” Griffin is Jennings’s immediate supervisor in OPA. In 2004, Jennings served as the executive director of the Bush-Cheney re-election campaign in New Mexico. Rove will say that Jennings has been in touch with New Mexico Republicans who are unhappy with Iglesias’s purported failure to pursue voter fraud charges (see August 17, 2004, September 7 - October 6, 2004, September 15-19, 2004, September 23 - October 2004, and May 6, 2005 and After). [US House of Representatives, Committee on the Judiciary, 6/15/2009 ; US House of Representatives, Committee on the Judiciary, 7/7/2009 ; US House of Representatives, Committee on the Judiciary, 7/30/2009 ; US House of Representatives, Committee on the Judiciary, 8/11/2009] Miers will deny ever seeing the email until years later, when Congress begins investigating the US Attorney firings (see December 7, 2006). She will refuse to speculate on what Jennings might mean by saying, “We are getting killed out there.” Her questioners will ask if he might be referring to a large number of Democratic voter registrations, and Miers will say he could be talking about massive voter fraud issues, though she will add, “I should say, I’m not suggesting I know whether there was voter fraud or not.” [US House of Representatives, Committee on the Judiciary, 6/15/2009 ]
Leslie Fahrenkopf, a lawyer in the White House counsel’s office, sends an email to White House counsel Harriet Miers about US Attorney David Iglesias of New Mexico (see October 26, 2004). Fahrenkopf has seen emails from Scott Jennings, an official in the White House Office of Political Affairs, to his boss Timothy Griffin asking that Iglesias be ousted (see May 2 - June 28, 2005). Fahrenkopf writes: “Harriet, per our conversation last week regarding the US Attorney for New Mexico, David Iglesias, I double-checked the dates of Iglesias’s confirmation and appointment. He was confirmed October 11, 2001, and appointed by the president October 16, 2001. You also asked me to remind you to check the chart grading US Attorneys on their performance. Thanks.” Fahrenkopf sends a follow-up email to Miers on June 9, 2005, saying: “Harriet, I just wanted to follow up on this item to see if you wanted to take any action. You will recall that this is the individual who is ruffling some feathers in New Mexico.” Less than an hour after Fahrenkopf sends this email, Miers replies, “I believe the decision is to let his four years run and then appoint someone else, if this is the right case.” Karl Rove, the White House deputy chief of staff and the senior political official in the Bush administration (see Late January 2005), will later testify that he “probably” spoke to Miers about Iglesias before the email exchange involving Miers, Fahrenkopf, Jennings, and Griffin. Miers will testify to having no recollection of the email exchange. She will be asked why, if Iglesias had been ranked so highly just months before (see November 14-18, 2005 and March 2, 2005), he was now being considered for firing. Miers will have no answer. [US House of Representatives, Committee on the Judiciary, 6/15/2009 ; US House of Representatives, Committee on the Judiciary, 6/15/2009 ; US House of Representatives, Committee on the Judiciary, 7/7/2009 ; US House of Representatives, Committee on the Judiciary, 7/30/2009 ; US House of Representatives, Committee on the Judiciary, 8/11/2009]
White House counsel Harriet Miers sends an email that says the White House has decided not to renominate US Attorney David Iglesias of New Mexico (see October 18, 2001) to his current position. The reason for the decision is complaints by New Mexico Republicans that Iglesias has not adequately addressed the issue of Democratic voter fraud in their state (see 2002, August 17, 2004, September 7 - October 6, 2004, September 15-19, 2004, September 23 - October 2004, and May 6, 2005 and After). Miers writes that the “decision” to replace Iglesias with someone more palatable to New Mexico Republicans has been made. At this time, the House Judiciary Committee will note in 2009, the Justice Department has given Iglesias “top rankings” (see 2002 and November 14-18, 2005 ), “so this decision was clearly not just the result of the White House following the department’s lead,” as Miers and White House political chief Karl Rove will later maintain. [US House of Representatives, Committee on the Judiciary, 8/11/2009; Politico, 8/12/2009]
Steven Bradbury. [Source: Mark Wilson / Getty Images]Steven Bradbury is nominated by President Bush to head the Justice Department’s Office of Legal Counsel (OLC). He will continue in that position on an acting basis into 2008, even though Congressional Democrats refuse to confirm him for the job, and even though his continuation in the post violates the Vacancies Reform Act, which precludes non-confirmed appointees for holding their positions for over 210 days (see October 16, 2007). [Washington Times, 9/20/2007; New York Times, 10/4/2007; TPM Muckraker, 10/19/2007] Bradbury takes over from Jack Goldsmith, who resigned the position under fire (see June 17, 2004).
Arm of the White House - Bradbury has a long history of supporting the White House’s agenda of expansive executive power. He came to the Justice Department after clerking with Supreme Court Justice Clarence Thomas and mentoring under former Whitewater special counsel Kenneth Starr. [New York Times, 10/4/2007] A co-founder of the Federalist Society [International Herald Tribune, 10/15/2007] , he is as staunchly conservative as any Bush appointee, but unlike some of the more outspoken of his colleagues, he comes across as low-key, pragmatic, and non-confrontational. As a Justice Department lawyer, Bradbury proved himself in line with the neoconservative views of Vice President Dick Cheney and Cheney’s chief of staff, David Addington. Former State Department senior official Philip Zelikow recalls Bradbury as being “fundamentally sympathetic to what the White House and the CIA wanted to do.” Bradbury was brought in to the OLC in part to rein in that office, which under its previous head Jack Goldsmith became the hub of the internal opposition to Bush’s policies of “enhanced interrogation” and domestic surveillance (see Late 2003-2005). In 2005, Bradbury signs two secret Justice Department memos giving broad authorization and legal justification for the CIA’s torture of terrorist suspects (see February 2005 and Late 2005),. Bradbury works closely with then-White House counsel and current attorney general Alberto Gonzales to bring the Justice Department back into line with White House demands. Conservative legal scholar Douglas Kmiec, who headed the OLC under former presidents Reagan and George H. W. Bush, says he believes the intense pressures from the current administration’s campaign against terrorism has warped the OLC’s proper role. “The office was designed to insulate against any need to be an advocate,” Kmiec says. Now the OLC has “lost its ability to say no.… The approach changed dramatically with opinions on the war on terror. The office became an advocate for the president’s policies.”
Probation - Bradbury was first considered for the job after Gonzales, newly confirmed as attorney general, rejected the idea of promoting Daniel Levin, the acting head of the OLC after Goldsmith’s departure. Gonzales considered Levin unsuitable for the job because of his independence and support for Goldsmith’s dissents. Instead, Gonzales chose Bradbury for the job. But the White House was uncertain of Bradbury’s reliability, and so placed him on a sort of “internal trial,” monitored by Gonzales’s replacement at the White House, Harriet Miers. Miers judged Bradbury’s loyalty to the president and his willingness to work with Gonzales in justifying White House policy decisions. Bradbury reportedly understands that his “probation” is intended for him to show just how compliant and supportive he is of the White House, and he soon wins the confidence of the White House by completely aligning himself with Addington. [New York Times, 10/4/2007]
'Sordid criminal conspiracy' - Harper’s Magazine commentator and lawyer Scott Horton will write in November 2007 that it is obvious “Bradbury was picked for one reason: to provide continuing OLC cover for the torture conspirators.… The Justice Department’s strategy has been to cloak Bradbury’s torture memoranda in secrecy classifications and then to lie aggressively about their very existence.… This episode demonstrates once more the intimate interrelationship between the policies of torture, secrecy, and the right to lie to the public and the courts in the interests of shielding the Bush administration from public embarrassment. And once more the Justice Department is enlisted not in the enforcement of the law, but rather in a sordid criminal conspiracy.” [Harper's, 11/7/2007]
Entity Tags: Kenneth Starr, Richard (“Dick”) Cheney, National Security Agency, Philip Zelikow, US Department of Justice, Steven Bradbury, Scott Horton, Vacancies Reform Act, James B. Comey Jr., Jack Goldsmith, Office of Legal Counsel (DOJ), Harper’s Magazine, Clarence Thomas, Central Intelligence Agency, Bush administration (43), Daniel Levin, Alberto R. Gonzales, Harriet E. Miers, Geneva Conventions, Douglas Kmiec, David S. Addington, George Herbert Walker Bush
Timeline Tags: Civil Liberties
White House press secretary Scott McClellan knows that Newsweek reporter Michael Isikoff is planning another article detailing what White House official Karl Rove told reporter Matt Cooper (see July 10, 2005). McClellan believes the Isikoff article will reveal that Cooper asked about former ambassador Joseph Wilson’s wife, but McClellan has been personally assured by Rove that he told Cooper nothing (see September 16, 2003 and September 27, 2003). President Bush has also assured McClellan that Rove is not the source of the leak (see September 29, 2003). McClellan will later write, “Maybe I did not want to believe that Karl had not been completely forthcoming, or that what he had told me—and the president—was not true.” White House counsel Harriet Miers tells McClellan, “There’s some news that’s likely to come out tomorrow about Karl in the leak investigation that may appear to contradict what you said nearly two years ago” (see 11:00 a.m. July 11, 2003 and July 13, 2005). She warns him not to comment on the investigation. As he will later write, “In effect, she was forbidding me from talking and setting the record straight about my previous comments.” Miers then apologizes and leaves McClellan to mull over the impact of the Rove revelation. He will later disclose the “painful, chilling effect” the revelation has on his “relationships with reporters,” and will reflect: “[I]f some of the highest-ranking officials of the Bush White House hadn’t been forthright with the president’s chief spokesman, how could anyone assume they were honest with the public? The White House had a serious credibility problem, and I was now going to take the heat for it.” He will compare the impact of the Isikoff article to “getting whacked upside the head with a two-by-four. I never saw it coming, given Karl’s personal assurances to me and the president, at least not until the final few days before it became public. And even then I convinced myself not to believe the growing buzz in Washington because of the personal assurances I had received.” [McClellan, 2008, pp. 257-260]
New Mexico Republican Party chairman Allen Weh, convinced that US Attorney David Iglesias is an incompetent who is deliberately refusing to prosecute voter fraud cases (see May 6, 2005 and After and May 12 - June 9, 2005), sends an email to Scott Jennings, an official in the White House Office of Political Affairs (OPA). He copies the email to Jennings’s supervisors Karl Rove and Sara Taylor (see Late January 2005), Republican National Committee official Timothy Griffin, and Steve Bell, the chief of staff to Senator Pete Domenici (R-NM). Weh writes in part: “We discussed the need to replace the US Atty in NM several months ago. The brief on voter fraud at the RNC [Republican National Committee] meeting last week reminded me of how important this post is to this issue, and prompted this follow up. As you are aware the incumbent, David Iglesias, has failed miserably in his duty to prosecute voter fraud. To be perfectly candid, he was ‘missing in action’ during the last election, just as he was in the 2002 election cycle. I am advised his term expires, or is renewed, in October. It is respectfully requested that strong consideration be given to replacing him at this point.… If we can get a new US Atty that takes voter fraud seriously, combined with these other initiatives we’ll make some real progress in cleaning up a state notorious for crooked elections.” Griffin responds in an email to Rove and Taylor: “I have discussed this issue with counsel’s office [the White House counsel’s office, headed by Harriet Miers]. I will raise with them again. Last time I spoke with them they were aware of the issue, and they seemed to be considering a change on their own. I will mention again unless I am instructed otherwise.” Twenty minutes later, Rove responds by telling Griffin, “Talk to the counsel’s office.” Griffin replies, “Done,” and adds a bit about setting up a meeting with someone unrelated to the Iglesias-Weh discussion. Rove responds, “Great.” He will later testify that he may have been responding to Griffin about the unrelated meeting. [US Department of Justice, Office of the Inspector General, 9/29/2008; US House of Representatives, Committee on the Judiciary, 6/15/2009 ; US House of Representatives, Committee on the Judiciary, 7/7/2009 ; US House of Representatives, Committee on the Judiciary, 7/30/2009 ] One of Weh’s Republican colleagues, lawyer Patrick Rogers, recommended that state and national Republicans use voter fraud as a “wedge issue” before the November 2004 elections, and has himself complained about Iglesias’s record on voter fraud investigations (see September 23 - October 2004).
Entity Tags: Karl C. Rove, David C. Iglesias, Allen Weh, Harriet E. Miers, J. Timothy Griffin, Sara Taylor, Pietro V. (“Pete”) Domenici, White House Office of Political Affairs, J. Scott Jennings, Republican National Committee, New Mexico Republican Party, Steve Bell
Timeline Tags: Civil Liberties
Harriet Miers. [Source: Harpers.org]After President Bush successfully places conservative judge John Roberts as chief justice of the Supreme Court (see September 29, 2005), he names White House counsel and personal friend Harriet Miers to replace the retiring Sandra Day O’Connor on the Court.
Firestorm of Criticism - The media reacts adversely to this; Miers is said to be insufficiently qualified for the position and to have been chosen because of her loyalty to Bush. Her nomination is further derailed by opposition from hard-line conservatives, who do not believe she is conservative enough in her beliefs, particularly on abortion. Miers is certainly a weak choice from most viewpoints—she has no constitutional law experience and lacks a reputation as a strong legal thinker. She has never been a judge, nor even published an academic law journal article. Even conservative stalwart Robert Bork, who is still a center of controversy from his failed Court nomination (see July 1-October 23, 1987), calls Miers’s nomination “a disaster on every level.” When a letter Miers had written Bush for his birthday in 1997 is published in the media—in which Miers gushed over Bush in breathless, almost schoolgirlish prose, calling him “cool!” and “the best governor ever!”—the derision hits a fever pitch. When she submits a questionnaire to the Senate Judiciary Committee listing her background and qualifications for the job, a questionnaire almost devoid of pertinent and specific information, the ranking members of the committee threaten to have her do it over, a humiliation she avoids by withdrawing her name from consideration.
Trumped-Up Dispute over Executive Privilege - The Senate asks to see Miers’s White House memos to judge the quality of her legal work, and the White House refuses, citing executive privilege. Many view the dispute as a trumped-up conflict designed to allow the Bush administration to save what little face it can in the debacle; neoconservative columnist Charles Krauthammer had suggested engineering just such a “conflict” to stage “irreconcilable differences over documents” that would allow the Bush White House to withdraw Miers’s nomination over the issue.
Withdrawal - Miers indeed asks Bush to withdraw her nomination, and Bush cites the documents dispute in announcing the decision to pull Miers from consideration: “It is clear that senators would not be satisfied until they gained access to internal documents concerning advice provided during her tenure at the White House—disclosures that would undermine a president’s ability to receive candid counsel,” Bush says. “Harriet Miers’s decision demonstrates her deep respect for this essential aspect of the Constitutional separation of powers—and confirms my deep respect and admiration for her.” Bush settles on another nominee, Samuel Alito, to replace O’Connor (see October 31, 2005 - February 1, 2006). [Savage, 2007, pp. 262-266; Dean, 2007, pp. 155]
Staunch Advocate for Expanded Executive Power - In 2007, reporter and author Charlie Savage will write that, in his view, the Bush administration chose Miers for a simple reason: she is a staunch advocate for the continued expansion of presidential power. “Miers… could be counted on to embrace Bush’s expansive view of presidential powers,” he will write. Miers is quite loyal to Bush “and, through him, the institution he represented.” Miers’s adoration of Bush on a personal level would further guarantee her “solid support for any presidential claim of power that might come before the Court,” he will write. “Like Roberts before her, she was an executive branch lawyer who identified with the task of defending the prerogatives of the president.” On the questionnaire she submits to the Senate Judiciary Committee, Miers writes that as White House counsel, she has gained significant constitutional experience in “presidential prerogatives, the separation of powers, executive authority, and the constitutionality of proposed regulations and statutes.… My time serving in the White House, particularly as counsel to the president, has given me a fuller appreciation of the role of the separation of powers in maintaining our constitutional system. In that role, I have frequently dealt with matters concerning the nature and role of the executive power.” [Savage, 2007, pp. 265-267]
Entity Tags: US Supreme Court, John G. Roberts, Jr, Sandra Day O’Connor, Samuel Alito, Senate Judiciary Committee, Harriet E. Miers, Charlie Savage, George W. Bush, Bush administration (43), Charles Krauthammer, Robert Bork
Timeline Tags: Civil Liberties
On October 6, 2005, the FBI warns of al-Qaeda subway bombings in New York City. It is alleged that a terror plot will be put into motion “on or about October 9, 2005.” A counterterrorism official states that the warning is unnecessary: “There was no there there.” [Rolling Stone, 9/21/2006 ] It is later confirmed that New York City authorities had been aware of the threat for at least three days and had responded accordingly. Local TV station WNBC had been asked by federal authorities to hold the story back. [MSNBC, 6/4/2007] Meanwhile, Bush’s nomination of Harriet Miers to the Supreme Court is failing (see October 3-27, 2005). [Rolling Stone, 9/21/2006 ]
President Bush, stung by the opposition from both left and right that derailed his nomination of Harriet Miers for the Supreme Court (see October 3-27, 2005), nominates appeals court judge Samuel Alito to the Court to replace the retiring Sandra Day O’Connor. [Dean, 2007, pp. 155-157]
Staunch Advocate of Expanding Presidential Power - Alito has impeccable credentials, especially in contrast to the widely derided Miers. He is a graduate of Yale Law School, a long-time member of the conservative Federalist Society, and has years of decisions behind him as an appellate court judge. He is a product of the Reagan-era Justice Department. Bush calls him “one of the most accomplished and respected judges in America.” He is a powerful anti-abortion advocate, and a staunch supporter of granting ever more power to the executive branch, especially at the expense of the legislative and judicial branches. During his time in the Reagan Justice Department, he worked on a project to “increase the power of the executive to shape the law.” In 2000 he called the “unitary executive theory” (see April 30, 1986) the “gospel according to the OLC,” the Justice Department’s Office of Legal Counsel, where he worked for four years, and said he was firmly committed to advancing that theory. [Savage, 2007, pp. 267-271]
Bland Facade at Hearings - Alito receives a unanimous “well qualified” assessment from the American Bar Association, and the Bush administration expects that his nomination will sail through the Senate confirmation hearings as quickly and painlessly as did Bush’s previous choice for the Court, John Roberts (see September 29, 2005). The hearings are more contentious than Bush would like, and former Nixon White House counsel John Dean will say in 2007 that Alito’s performance before the Judiciary Committee “only served to confirm that the entire process has become little more than a great charade.” Senator Edward Kennedy (D-MA), one of the longest-serving members of the committee, observes that the Bush administration believes—correctly—that it can nominate radical right-wing extremists to the Court virtually at will, “as long as their views were not well known,” and adds, “[T]he current White House [has] turned the effort to hide nominees’ views into an art form.” Like Roberts, Alito presents a bland, non-confrontational facade to the committee (see January 9-13, 2006), refusing to take a personal stance on any issue and giving the impression that, as Kennedy will say after Alito and Roberts begin their service on the Court, he would be “as neutral as a baseball umpire.… The men who promised to be neutral umpires look more and more like loyal members of the president’s team.” [Dean, 2007, pp. 155-157]
Party-Line Confirmation - After an attempt by Senators Kennedy and John Kerry (D-MA) to filibuster Alito’s confirmation fails, the Senate confirms Alito’s ascension to the Court by a near-party line 58-42 vote, the closest such vote since Clarence Thomas’s (see October 13, 1991). Senator Orrin Hatch (R-UT) condemns what he calls the “very bitter partisanship” over Alito’s nomination, and accuses Democrats of playing politics: “When you have a man who has the decency, the legal ability and the capacities that Judge Alito has treated this way, I think it’s despicable.” Alito, whose hardline conservative beliefs are sufficiently masked during the hearings, replaces the far more moderate O’Connor, who before her retirement made up the “moderate center” of the Court with Justices Anthony Kennedy and David Souter. Now Alito joins Thomas, Roberts, and Antonin Scalia to form a hard-right conservative bloc on the Court which, when joined by center-right conservative Kennedy, forms a nearly unshakable conservative majority. [CNN, 2/1/2006]
Overturning Roe? - Many believe that Alito gives the Court the fifth vote it needs to finally overturn the landmark abortion case Roe v. Wade (see January 22, 1973), a longtime goal of social conservatives that would go far to make abortions illegal in the US. [Slate, 10/31/2005]
Entity Tags: Orrin Hatch, Sandra Day O’Connor, Samuel Alito, John Dean, US Supreme Court, John G. Roberts, Jr, John Kerry, George W. Bush, Clarence Thomas, Anthony Kennedy, David Souter, Edward M. (“Ted”) Kennedy, Harriet E. Miers, Antonin Scalia
Timeline Tags: Civil Liberties
After President Bush signs the Detainee Treatment Act (DTA—see December 30, 2005), his office issues a “signing statement” concerning how he believes the government should enforce the new law. His advisers have spent days composing a statement that declares the administration’s support for the bill. But that statement is never issued. Just before Bush signs the bill, Vice President Cheney’s chief lawyer, David Addington, intercepts the statement “and just literally takes his red pen all the way through it,” a White House official will later recall. Instead, Addington substitutes a single sentence. Bush, writes Addington, would interpret the law “in a manner consistent with the constitutional authority of the president to supervise the unitary executive branch and as commander in chief.” Neither Addington nor Cheney have any qualms about ignoring or superseding what Addington calls “interagency treaties” or language “agreed between cabinet secretaries.” Top officials from the CIA, the Justice Department, State Department, and Defense Department oppose the substitution. The White House’s senior national security lawyer, John Bellinger, says that Congress will view the statement as a “stick in the eye.” Nevertheless, with Cheney’s backing, White House counsel Harriet Miers sends the revised statement to Bush for his signature. Bush signs the statement. [Washington Post, 6/25/2007]
The House of Representatives votes to hold White House Chief of Staff Joshua Bolten and former White House counsel Harriet Miers in contempt of Congress. Bolten and Miers have refused to testify to a House committee investigating the firing of several US attorneys. Many House Republicans walk off the House floor before the vote is cast, ostensibly because they want to work on reauthorizing the Protect America Act (see August 5, 2007) rather than deal with the contempt citation. Minority Leader John Boehner complains, “We have space on the calendar today for a politically charged fishing expedition, but no space for a bill that would protect the American people from terrorists who want to kill us.” [Associated Press, 2/14/2008] “We will not stand for this, and we will not stay for this. And I would ask my House Republican colleagues and those who believe we should be protecting the American people, to not vote on this bill. Let’s just get up and leave.” [Think Progress, 2/14/2008] (Before they walk out, Lincoln Diaz-Balart (R-FL) attempts to disrupt the memorial service for the recently deceased Tom Lantos (D-CA), taking place in Statuary Hall just a few steps from the House chambers, by calling for a procedural vote during the memorial service. An MSNBC reporter says Diaz-Balart’s action is apparently the result of “pique.”) [MSNBC, 2/14/2008] The contempt citation will be forwarded to the US Attorney for the District of Columbia. The two resolutions passed hold Bolten and Miers in contempt, and allow for the House to file a civil suit against the Bush administration to compel the aides’ testimony. “I hope this administration will realize this Congress is serious about its constitutional role of oversight,” says House Speaker Nancy Pelosi (D-CA). Pelosi says she “had hoped that this day would never have come,” and adds that if the White House instructs Justice Department attorneys not to prosecute the contempt citations, “we will have power to go to federal court and seek civil enforcement of our subpoenas.” [The Hill, 2/14/2008; Associated Press, 2/14/2008]
White House Conditions 'Beyond Arrogance' - The White House has already said it will not allow the Justice Department to pursue the contempt charges, claiming that the information is off-limits because of executive privilege, and that Bolten and Miers are immune from prosecution. House Democrats such as Judiciary Committee chairman John Conyers (D-MI) had tried for months to work with the White House to win its approval for the aides’ testimony, but were unwilling to accept the White House’s restrictive conditions—investigators would not have been allowed to make transcripts of the testimony, to copy documents presented in the testimony, or to seek any more information after the single session. Pelosi said of the White House’s conditions, “This is beyond arrogance. It’s hubris taken to the ultimate degree.”
Republicans Say Testimony Would 'Undermine' Power of Executive Branch - Republicans such as David Dreier (R-CA) warn that such a case might “undermine the power of the first [executive] branch of government.” [The Hill, 2/14/2008; Associated Press, 2/14/2008]
Miller: Bush Attempting to 'Decide by Decree' - Representative Brad Miller (D-NC) says during the deliberations, “The president cannot decide by decree. The president cannot announce with absolute unreviewable authority what information the administration will provide or withhold. The framers of our Constitution had just fought a war against an autocratic king. It is inconceivable that they intended to create an executive branch with the power the Bush administration now claims and that the minority now supports.” [Speaker of the House, 2/14/2008]
Attorney General Michael Mukasey refuses to refer a House contempt citation against two of President Bush’s top officials to a federal grand jury. The House has found former White House counsel Harriet Miers and White House Chief of Staff Joshua Bolten in contempt of Congress for refusing to answer Congressional subpoenas (see February 14, 2008), but Mukasey says neither Bolten nor Miers have committed any crimes. House Speaker Nancy Pelosi (D-CA) has, in return, given the House Judiciary Committee the authority to file a lawsuit against Miers and Bolten in federal court. Mukasey says Bolten and Miers were right to ignore the subpoenas because both were acting at President Bush’s behest. Pelosi retorts: “The American people demand that we uphold the law. As public officials, we take an oath to uphold the Constitution and protect our system of checks and balances and our civil lawsuit seeks to do just that.” Democrats want the filing to move swiftly so that a judge might rule before the November elections; a key tenet of Democratic political strategy is the accusation that the Bush administration has abused its executive powers and considers itself above the law. Bolten and Miers were subpoenaed to testify about the possible political motivations behind the 2006 firings of nine US attorneys. Mukasey agrees with the Bush administration in saying that neither Miers nor Bolten, as officials of the executive branch, are required to answer to Congress for their actions, “The contempt of Congress statute was not intended to apply and could not constitutionally be applied to an executive branch official who asserts the president’s claim of executive privilege,” he writes. “Accordingly, the department has determined that the noncompliance by Mr. Bolten and Ms. Miers with the Judiciary Committee subpoenas did not constitute a crime.” Judiciary Committee chairman John Conyers (D-MI) says of Mukasey’s decision: “Today’s decision to shelve the contempt process, in violation of a federal statute, shows that the White House will go to any lengths to keep its role in the US attorney firings hidden. In the face of such extraordinary actions, we have no choice but to proceed with a lawsuit to enforce the committee’s subpoenas.” [Associated Press, 2/29/2008]
The House Judiciary Committee asks a federal judge to compel two White House officials to testify about the firings of eight US attorneys in 2007. Former White House counsel Harriet Miers and current White House Chief of Staff Joshua Bolten have both refused to testify, ignoring subpoenas from the Judiciary Committee (see February 14, 2008), and Attorney General Michael Mukasey has refused to enforce the subpoenas (see February 29, 2008). The White House steered the refusals. Judge John D. Bates, a federal district court judge in Washington, is overseeing the case. The suit says that neither Miers nor Bolten may avoid testimony by citing executive privilege, as both they and the White House have asserted. White House press secretary Dana Perino calls the suit “partisan theater,” and adds, “The confidentiality that the president receives from his senior advisers and the constitutional principle of separation of powers must be protected from overreaching, and we are confident that the courts will agree with us.” Judiciary Committee chairman John Conyers (D-MI) vehemently disagrees, saying, “The administration’s extreme claim to be immune from the oversight processes are at odds with our constitutional principles.” Conyers warns, “We will not allow the administration to steamroll Congress.” House Minority Leader John Boehner (R-OH) calls the suit a waste of time and accuses the committee of “pandering to the left-wing swamps of loony liberal activists.” The case is central to the ongoing tension between the White House and Congress over the balance of power between the two branches. Constitutional law professor Orin S. Kerr says the case raises fresh issues. While the Supreme Court recognized executive privilege in 1974, it acknowledged that executive privilege was not absolute and could be overturned in some instances, such as a criminal investigation. No court has ruled whether a claim of executive privilege outweighs a Congressional subpoena. According to lawyer Stanley Brand, who is involved in the suit for the Democrats, the committee turned to the legal system to avoid the possibility of charging Miers and Bolten with contempt and trying them in Congress on the charges. Such an action, Brand says, would be unseemly. [House Judiciary Committee v. Miers & Bolten, 3/10/2008 ; New York Times, 3/11/2008]
WTMJ-AM logo. [Source: Ignite Your Life (.org)]Dan Shelley, the former news director/assistant program director at Milwaukee’s WTMJ AM talk radio station, writes of the methodologies he and other programming experts used to make their talk show hosts popular. Like many other radio stations, WTMJ hosts primarily conservative broadcasters, though its only nationally syndicated host with a political bent is former comedian Dennis Miller. Two of its most popular local broadcasters are conservatives Charlie Sykes and Jeff Wagner. (Shelley is quite complimentary of Sykes in particular as a top-flight talk show host.) Shelley notes: “I was often angrily asked, once by then-Mayor John Norquist, why we just didn’t change our call letters to ‘WGOP.’ The complaints were just another sign of our impact.”
'Differentiating' - Shelley writes that Sykes and Wagner “are popular and powerful because they appeal to a segment of the population that feels disenfranchised and even victimized by the media. These people believe the media are predominantly staffed by and consistently reflect the views of social liberals. This view is by now so long-held and deep-rooted, it has evolved into part of virtually every conservative’s DNA.” Hosts such as Sykes and Wagner “must perpetuate the notion that his or her listeners are victims,” he writes, “and the host is the vehicle by which they can become empowered. The host frames virtually every issue in us-versus-them terms. There has to be a bad guy against whom the host will emphatically defend those loyal listeners. This enemy can be a politician—either a Democratic officeholder or, in rare cases where no Democrat is convenient to blame, it can be a ‘RINO’ (a ‘Republican In Name Only,’ who is deemed not conservative enough). It can be the cold, cruel government bureaucracy. More often than not, however, the enemy is the ‘mainstream media’—local or national, print or broadcast.… In the talk radio business, this concept, which must be mastered to be successful, is called ‘differentiating’ yourself from the rest of the media. It is a brilliant marketing tactic that has also helped Fox News Channel thrive. ‘We report, you decide’ and ‘Fair and Balanced’ are more than just savvy slogans. They are code words signaling that only Fox will report the news in a way conservatives see as objective and truthful.”
Vicitimization - One of their most successful strategies is to play into the perception that hosts and audience alike are “victims” of what Shelley sardonically calls “the left-wing spin machine.” Any criticism, especially personal epithets such as “right-winger” or “radio squawker” merely plays into those hosts’ hands, Shelley notes. “This allows a host like Sykes to portray himself as a victim… and will leave his listeners, who also feel victimized, dying to support him.”
One-Sided Discussions - However, talk show hosts rarely, if ever, present “fair, evenhanded discussions featuring a diversity of opinions.… Programmers learned long ago that benign conversations led by hosts who present all sides of an issue don’t attract large audiences.… Pointed and provocative are what win.” Shelley writes that callers never “win a disagreement” with Sykes or Wagner. Calls from listeners who disagree with them do not get on the air “if the show’s producer, who generally does the screening, fears they might make [the host] look bad. Sykes’s producer even denied calls from US Senator Russ Feingold (D-WI), the current and former mayors of Milwaukee, and other prominent figures. However, callers with dissenting points of view would get on the air if the host could “use the dissenting caller to reinforce his original point… [b]y belittling the caller’s point of view.” Shelley notes of Sykes: “You can always tell, however, when the antagonist has gotten the better of Charlie. That’s when he starts attacking the caller personally.”
More Diversity in Audience than Readily Acknowledged - Shelley writes that many liberals believe talk radio audiences are composed of “angry, uneducated white men.” Such is not the case, he writes. “Many are businesspeople, doctors, lawyers, academics, clergy, or soccer moms and dads. Talk show fans are not stupid. They will detect an obvious phony. The best hosts sincerely believe everything they say. Their passion is real. Their arguments have been carefully crafted in a manner they know will be meaningful to the audience, and that validates the views these folks were already thinking.”
Shaping Opinion - Listeners cannot be “led like lemmings” to a particular conclusion, Shelley writes, but “they can be carefully prodded into agreement with the Republican views of the day.” Conservative talk show hosts, both national and local, receive “daily talking points emails from the Bush White House, the Republican National Committee, and, during election years, GOP campaign operations. They’re not called talking points, but that’s what they are. I know, because I received them, too.” Shelley writes that Sykes would “mine the emails, then couch the daily message in his own words.… Wagner would be more likely to rely on them verbatim.” Both Sykes and Wagner keep abreast of what other conservative hosts are saying: “Rush Limbaugh’s Web site was checked at least once daily. Atlanta-based nationally syndicated talker Neal Boortz was another popular choice.”
Strategic Disagreement - On occasion, Shelley writes, “[a] smart talk show host will, from time to time, disagree publicly with a Republican president, the Republican Party, or some conservative doctrine.” President Bush’s selection of his own lawyer, Harriet Miers, for the Supreme Court gave Sykes, Wagner, and other conservatives the chance to disagree vehemently with the administration. But, Shelley notes, “these disagreements are strategically chosen to prove the host is an independent thinker, without appreciably harming the president or party. This is not to suggest that hosts don’t genuinely disagree with the conservative line at times. They do, more often than you might think. But they usually keep it to themselves.”
Selective Facts - Shelley notes that it is often difficult to refute the arguments of a host such as Sykes, who builds “strong case[s] with lots of supporting facts.” Shelley notes that usually “those facts have been selectively chosen because they support the host’s preconceived opinion, or can be interpreted to seem as if they do.… Hosts… gather evidence, but in a way that modifies the old Joe Friday maxim: ‘Just the facts that I can use to make my case, ma’am.’”
Rhetorical Strategies - Shelley writes of the two main strategies conservatives (and presumably other talk show hosts of other political stripes) use to bolster weak arguments or refute strong opposing points of view. He calls them “You Know What Would Happen If” and “The Preemptive Strike.”
Shelley writes: “Using the first strategy, a host will describe something a liberal has said or done that conservatives disagree with, but for which the liberal has not been widely criticized, and then say: ‘You know what would happen if a conservative had said (or done) that? He (or she) would have been filleted by the “liberal media.”’ This is particularly effective because it’s a two-fer, simultaneously reinforcing the notion that conservatives are victims and that ‘liberals’ are the enemy.”
He then notes: “The second strategy, The Preemptive Strike, is used when a host knows that news reflecting poorly on conservative dogma is about to break or become more widespread. When news of the alleged massacre at Haditha first trickled out in the summer of 2006, not even Iraq War chest-thumper Charlie Sykes would defend the US Marines accused of killing innocent civilians in the Iraqi village. So he spent lots of air time criticizing how the ‘mainstream media’ was sure to sensationalize the story in the coming weeks. Charlie would kill the messengers before any message had even been delivered.”
Such strategies, and others, are reliable and effective, Shelley notes.
Double Standards - Shelley gives numerous examples of the hosts’ double standards with various issues.
“In the talk show world, the line-item veto was the most effective way to control government spending when Ronald Reagan was president; it was a violation of the separation of powers after President Clinton took office.”
“Perjury was a heinous crime when Clinton was accused of lying under oath about his extramarital activities. But when [Lewis ‘Scooter’] Libby, Vice President Dick Cheney’s top aide, was charged with lying under oath, it was the prosecutor who had committed an egregious act by charging Libby with perjury.”
“‘Activist judges’ are the scourge of the earth when they rule it is unconstitutional to deny same-sex couples the rights heterosexuals receive. But judicial activism is needed to stop the husband of a woman in a persistent vegetative state—say Terri Schiavo—from removing her feeding tube to end her suffering.”
Shelley adds: “To amuse myself while listening to a talk show, I would ask myself what the host would say if the situation were reversed. What if alleged DC Madam client Senator David Vitter [R-LA] had been a Democrat? Would the reaction of talk show hosts have been so quiet you could hear crickets chirping? Hardly. Or what if former Representative Mark Foley [R-FL] had been a Democrat? Would his pedophile-like tendencies have been excused as a ‘prank’ or mere ‘overfriendly emails?’ Not on the life of your teenage son. Suppose Al Gore was president and ordered an invasion of Iraq without an exit strategy. Suppose this had led to the deaths of more than 4,000 US troops and actually made that part of the world less stable. Would talk show hosts have dismissed criticism of that war as unpatriotic? No chance. Or imagine that John Kerry had been president during Hurricane Katrina and that his administration’s rescue and rebuilding effort had been horribly botched. Would talk show hosts have branded him a great president? Of course not.”
Katrina an Epiphany - Shelley notes that it was Hurricane Katrina and the aftermath of that disaster that convinced him conservative talk show hosts such as Sykes and Wagner were extremists, and not merely a counterbalance to a left-skewed national media. Shelley was horrified when Sykes and Wagner, emulating their more prominent nationally syndicated colleagues such as Limbaugh and Miller, did not criticize the government’s lethally slow and callous response, but instead attacked the journalists who were obviously part of an “angry left” conspiracy to unfairly smear the Bush administration.
Conclusion - Shelley writes: “[T]he key reason talk radio succeeds is because its hosts can exploit the fears and perceived victimization of a large swath of conservative-leaning listeners. And they feel victimized because many liberals and moderates have ignored or trivialized their concerns and have stereotyped these Americans as uncaring curmudgeons. Because of that, there will always be listeners who believe that Charlie Sykes, Jeff Wagner, and their compatriots are the only members of the media who truly care about them.” [Milwaukee Magazine, 11/13/2008; WTMJ-AM, 11/13/2008]
Entity Tags: David Vitter, Russell D. Feingold, Rush Limbaugh, Terri Schiavo, WTMJ-AM, Charlie Sykes, Dan Shelley, Ronald Reagan, Albert Arnold (“Al”) Gore, Jr., Bush administration (43), Richard (“Dick”) Cheney, William Jefferson (“Bill”) Clinton, Neal Boortz, Fox News, Harriet E. Miers, Republican National Committee, Dennis Miller, George W. Bush, John Kerry, Jeff Wagner, Lewis (“Scooter”) Libby, John Norquist, Mark Foley
Timeline Tags: Domestic Propaganda
Conservative activist Curt Levey, the executive director of the Committee for Justice, attacks Supreme Court nominee Sonia Sotomayor (see May 26, 2009) as an “intellectual lightweight,” and compares her to the Bush administration’s failed nomination of White House lawyer Harriet Miers for the Court (see October 3-27, 2005). “I would point you to the Harriet Miers nomination under the second President Bush,” he tells radio listeners on WTOP. “She was also, many people felt, an intellectual lightweight, picked because she was a woman, people felt. And even though Republicans controlled the Senate, she ultimately had to withdraw. And that could happen here. This is someone who clearly was picked because she’s a woman and Hispanic, not because she was the best qualified. I could certainly see red and purple state Democrats gawking at it and she may very well have to withdraw her nomination.” [Think Progress, 5/26/2009] At the Washington Post and National Review, conservative columnist Ramesh Ponnaru attacks Sotomayor as “Obama’s Harriet Miers.” He continues to slam the nominee for asserting that judges sometimes make policy, claims—without naming names—that some Democrats believe she lacks “the intellect to be on the high court,” falsely claims that President Obama chose her because she passed “a pro-abortion litmus test,” criticizes her for having “empathy, at least for some groups” (a veiled reference to her Hispanic heritage and her gender), and claims that she has a “high reversal rate” before the Court. He calls her “the crassest of political picks.” [National Review, 5/26/2009; Washington Post, 5/26/2009]
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