Stone Court

As is being widely discussed, Karl Rove and others involved in the U.S. attorney firings seem to have compromised their boss's claim to executive privilege by sending emails from their RNC accounts, rather than from government accounts.

Acting Press Secretary Dana Perino put a further nail in the executive privilege coffin today when she explained the reason for the use of the RNC account:

Q. ... In some of those documents that have been released, there have been non-White House addresses, email addresses, that people have written from. Is there a policy from the White House that tells employees that if they're doing White House business, it should be with their White House email? Or are people always free to use an outside address for business?

MS. PERINO: No -- and I talked a little bit about this yesterday, that there are certain individuals, limited individuals, that have responsibilities that may straddle both worlds, both White House and then have interface with political organizations. And so in those cases, they've been given these emails in which -- in order to avoid any possible potential violations of the Hatch Act, they use those emails. Of course, people are encouraged, on official White House business, to use their official White House accounts. Sometimes there might be a gray area and people have to make a judgment call.

In other words, the use of the RNC email addresses was not illegal because in the judgment of the senders the emails did not relate to White House business. The applicability of the privilege, of course, depends on the emails being related to White House business. See United States v. Nixon, 418 U.S. 683, 711 (1974) ("Nowhere in the Constitution, as we have noted earlier, is there any explicit reference to a privilege of confidentiality, yet to the extent this interest relates to the effective discharge of a President's powers, it is constitutionally based.")

I can only imagine what Karl Rove may have written in RNC emails. With the stakes that high, it's almost hard to imagine this issue not going to the Supreme Court.

One of the self-indulgent vanities of blogging is being able to say "I was right". From my opposition to the nomination of Alberto Gonzales as Attorney General:

1. The reason that has gotten the most attention, and rightly so, is Gonzales's advocacy of torture and, in particular, his strong advocacy for the Bybee memo (and subsequent support for promotion of Bybee to the Ninth Circuit).... As in the case of Elliot Richardson [who, of course, resigned rather than follow Richard Nixon's order that he fire Watergate Special Prosecutor Archibald Cox--FV], the character to reach independent conclusions when necessary is part of the Attorney General's job. We know that this President is not interested in honest advice on subjects as to which he has already made up his mind, but that is all the more reason that we need an Attorney General who will give it.

2. The Bybee memo endorsed the position that the President has the legal authority to unilaterally nullify criminal statutes. To my knowledge, Gonzales has not disavowed that conclusion. This suggests a fundamental lack of regard for core values (rule of law, separation of powers, etc.) that is inconsistent with holding the office of Attorney General....

4 ... I do credit the idea that the President is entitled to greater deference in cabinet appointments than in judiciary appointments and, therefore, I do not urge a fillibuster. However, Gonzales has not established that, if his legal opinion were that the President intended to pursue a course of dubious legality, he would advise the President accordingly -- far less that he would refuse to participate in that illegality. If that is not disqualifying for the office, what is? (Emphasis added.)

Lack of respect for the rule of law and separation of powers. Lack of character. Alberto Gonzales in a nutshell.

Things may be getting worse than uncomfortable for Senator Pete Domenici (R-NM) and Representative Heather Wilson (R-NM) over their role in the pressuring and firing of U.S. Attorney David Iglesias.

The federal obstruction of justice statute, 18 U.S.C. 1503(a), is broadly worded:

Whoever corruptly, or by threats or force, or by any threatening letter or communication, endeavors to influence, intimidate, or impede any grand or petit juror, or officer in or of any court of the United States, or officer who may be serving at any examination or other proceeding before any United States magistrate judge or other committing magistrate, in the discharge of his duty, or injures any such grand or petit juror in his person or property on account of any verdict or indictment assented to by him, or on account of his being or having been such juror, or injures any such officer, magistrate judge, or other committing magistrate in his person or property on account of the performance of his official duties, or corruptly or by threats or force, or by any threatening letter or communication, influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice, shall be punished as provided in subsection (b) [up to ten years in prison--FV]. (Emphasis added.)

A U.S. Attorney is clearly an "officer of the court". See, e.g., U.S. v. Polakoff, 112 F.2d 888 (2d Cir. 1940) (L. Hand, J.). Less clearly, but I think quite likely, there was an implicit attempt at improper influence based on Wilson's and Domenici's positions in Congress and relationship with Iglesias, even if they did not make any explicit threats. For example, in U.S. v. Fasolino, 449 F. Supp. 586 (W.D.N.Y), aff'd, 586 F.2d 939 (2d Cir. 1978), defendant was convicted of obstruction for seeking to have an acquaintance of the judge speak to the judge about sentencing when the acquaintance had no knowledge relevant to sentencing and, therefore, the attempt was corrupt because based on the acquaintance's relationship with the judge.

To make matters worse for Wilson, she's already admitted a big part of the obstruction case -- that she was attempting to influence Iglesias's conduct:

Wilson also said she was trying to help Iglesias: "If the purpose of my call has somehow been misperceived, I am sorry for any confusion. I thought it was important for Mr. Iglesias to receive this information and, if necessary, have the opportunity to clear his name."

It's too soon to know if there really was a crime committed, but there very well may have been.