Speaking of USAttys -- DC USAtty

[Duer 157099]

If this has to be adjudicated (subpoenas issued and refused), it goes into the hands of the USAtty of DC -- an "INTERIM" USAtty who was appointed just last September by, of course, Fredo.

Who was the prior USAtty in DC, and why did he get replaced????

Um... seems there just *might* be some sort of conflict of interest here, no?

Let's preempt the debate and have the facts.

http://www.usdoj.gov/usao/dc/US_Attorney/index.html

Biography of U.S. Attorney
Jeffrey A. Taylor

Jeffrey A. Taylor was appointed interim U.S. Attorney for the District of Columbia by Attorney General Alberto R. Gonzales on September 22, 2006. He was sworn in and took office on September 29, 2006.

From 2002 to 2006, Mr. Taylor served as Counselor to Attorney Generals John Ashcroft and Gonzales, where he handled a broad array of matters, including oversight of the Department’s national security, terrorism, and criminal litigation and policy, as well as the operations of the Department’s law enforcement components.

[originalpckelly]

1. We really need to split off the Justice Department and all it's agencies...

into a separate branch of government. This is such an obvious conflict of interest. This problem keeps cropping up, we need a constitutional amendment to solve it.

[Sanity Claws]

3. An independent agency

but not a separate branch. I agree that the legal enforcement mechanism should be independent of political pressures and the President's "pleasure."

[robinlynne]

2. well, the rule saying interims could be appointed without going through congress is

gone now. so they'll have to get someonw approved by cognress, wont they?

[Duer 157099]

8. I wondered about that -- is it retroactive?

So that the "interims" must now be confirmed?

There were some emails in the dump that alluded to the language, whether they needed to use "interim" (I believe) ... and I really wonder if that will figure into this somehow (whether they must now be confirmed or not).

We need to know this

[riderinthestorm]

4. I asked on the Lou Dobb's thread but will repeat here

Is it possible for this guy to just sit on the subpeonas and not enforce them? Why wouldn't he just wait all this out and let them languish? Is that done or even possible?

[Duer 157099]

5. Taylor's predecessor

Still digging to find out the whole DC-USAtty lineage/timeline, and where they went when they left...

http://www.whitehouse.gov/government/kwainstein-bio.html

Ken Wainstein
United States Attorney, District of Columbia

Ken Wainstein Mr. Wainstein was confirmed on October 7, 2005 to be the United States Attorney for the District of Columbia. He served as the Interim United States Attorney prior to his confirmation. Prior to his appointment as Interim United States Attorney in May of 2004, Mr. Wainstein served at FBI Headquarters. He was Chief of Staff to Director Robert S. Mueller, III, from March 2003 to May 2004 and General Counsel of the FBI from July 2002 to March 2003. From August 2001 to July 2002, he served as Director of the Justice Department's Executive Office for U.S. Attorneys, where he provided oversight and support to the 94 United States Attorneys' Offices around the country. Ken was the Interim U.S. Attorney for the District of Columbia between April and August of 2001.

Ken is a 1984 graduate of the University of Virginia, and a 1988 graduate of the Boalt Hall School of Law at the University of California, Berkeley. He clerked for Judge Thomas Penfield Jackson of the U.S. District Court for the District of Columbia before beginning his Justice Department career as an Assistant U.S. Attorney in the Southern District of New York in 1989. While in the Southern District, he handled a variety of prosecutions, including narcotics, fraud, and public corruption cases.

In 1992, Ken transferred to the U.S. Attorney's Office for the District of Columbia, where he served for nine years before his first appointment as Interim United States Attorney. As a line prosecutor and Deputy Chief of the Homicide Section between 1994 and 1999, he specialized in the prosecution of federal racketeering cases against violent street gangs. He later served as Deputy Chief of the Superior Court Division and Principal Assistant U.S. Attorney, and was awarded the Director's Award for Superior Performance in 1997 and 2000

[Duer 157099]

6. OK, this is where Wainstein went...

http://www.usdoj.gov/opa/pr/2006/September/06_nsd_655.html

THURSDAY, SEPTEMBER 28, 2006
WWW.USDOJ.GOV

Kenneth L. Wainstein Sworn in as First Assistant Attorney General
for the National Security Division
Other Senior National Security Division Officials Announced

WASHINGTON � Attorney General Alberto R. Gonzales today swore in Kenneth L. Wainstein as the first Assistant Attorney General for the National Security Division. The Department also announced the senior members of the National Security Division leadership team including Chief of Staff Charles M. Steele, Deputy Assistant Attorneys General J. Patrick Rowan, Matthew G. Olsen, and Brett Gerry, Counsels George Z. Toscas, John C. Demers and Kathryn Haun, and Deputy Chief of Staff Jessie K. Liu.

[Jacobin]

7. Doesn't the senate or house issue its own subpoena?

I'm not sure you are correct about who issues the subpoenas.

[Duer 157099]

9. Yes -- this is to enforce the subpoena

in the *unlikely* event that they are refused (lol)

[Jacobin]

13. Well in an ordinary situation

a subpoena is 'served' by whoever has that job by handing it to the person subpoenaed. Its not like it can be 'refused'. what happens next is that the person subpoenaed hires a lawyer to seek to have it 'quashed' on some grounds, by going to court and filing a motion.

I don't think we are going to see any action on the physical part of this subpoena thing. Its going to occur in a court

[Duer 157099]

15. OK -- I don't know all the details

But when I say "refused" I meant "refuse to comply" with the terms therein, as Bush has already claimed would be done.

I agree we need some law dogs to chime in here with details and facts

[riderinthestorm]

18. But will Taylor be the one to adjudicate it for the WH?

And why can't he stall it there?

[Jacobin]

21. No

the person subpoenaed will hire an attorney

[riderinthestorm]

10. I'm guessing we need someone to outline what happens now

We know the Congress issues the subpeonas. I am guessing the police deliver them?

Then what? The WH goes to court to fight them, let's speculate they lose that fight and must appear per the subpeona, who enforces that subpeona? Who makes sure Rove goes before the Congress? The police again?

Anyone know what the protocol might be on this?

[Duer 157099]

11. I think it's the US Attorney for DC, Taylor, *interim* USAtty

perhaps he'd recuse himself... and then what?

[Jacobin]

14. The US attorney doesn't have anything to do with serving

or issuing subpoenas from congressional committees.

I think we are barking up the wrong tree here

[Duer 157099]

16. Yeah -- I'm jumping ahead to when they refuse to comply

Sorry for the confusion

[riderinthestorm]

17. Okay though, so we've perhaps cleared up the 'serving" part

but when the WH refuses to comply and goes to court, who will adjudicate this? Taylor? Perhaps that's the better question? Will he stall and sit on it and let it lanquish, not bringing it to a speedy resolution?

[Jacobin]

20. Congress will have its attorneys pursue the

honoring of the subpoena and the person subpoenaed will hire a lawyer. They will start in DC federal court, go to the appeal court and end up in SCOTUS

[northzax]

25. it's the US Attorney who pursues it

not Congress. Congress cannot convict someone of a crime (since they cannot try anyone except a civil officer) so they have no enforcement powers.

[riderinthestorm]

28. Oh shit, so Taylor, the DC USA will be Congress' lawyer?

Is that true?! Taylor - Gonzo appointee and "loyal Bushie"? That's who would have to argue Congress' case?? Eeek!

[northzax]

35. unless Gonzales appoints a different Special Counsel

since the Independant Counsel act that gave us Ken Starr expired, the only way to pursue it, as I understand it, is through 28 CFR 600 the clause for Special Counsels (like Fitzgerald).

PART 600--GENERAL POWERS OF SPECIAL COUNSEL--Table of Contents

Sec. 600.1 Grounds for appointing a Special Counsel.

The Attorney General, or in cases in which the Attorney General is
recused, the Acting Attorney General, will appoint a Special Counsel
when he or she determines that criminal investigation of a person or
matter is warranted and--
(a) That investigation or prosecution of that person or matter by a
United States Attorney's Office or litigating Division of the Department
of Justice would present a conflict of interest for the Department or
other extraordinary circumstances; and
(b) That under the circumstances, it would be in the public interest
to appoint an outside Special Counsel to assume responsibility for the
matter.

certainly Gonzo would have to recuse himself, since he would be the target. to do otherwise would be to lose his bar card. So then the acting AG appoints a Special Counsel to pursue the matter further, if that person believes that the USADC is not sufficiently impartial.

[riderinthestorm]

37. Not. good. at. all. Wow, no wonder the Smirkster in chief was in full smirk mode

the other day during his press conference announcing he was gonna fight. He figures he's got it all laid out in his favor - I'm sure he already has the acting AG already lined up and coached to refuse a special counsel.

I don't want to give up hope but this isn't good.

[Jacobin]

31. I stand corrected

You are right

[northzax]

36. I am so printing this and framing it!

:)

luckily, this isn't something that happens all that often, so we have to remind ourselves of the process all the time.

[northzax]

22. not really, the USA for the District of Columbia

is responsible for enforcing contempt of congress citations. And since the people being subpoenad have already announced their intention to defy them, it will soon enough be in the hands of the USA for DC.

remember, Congress has no authority to enforce law, only make them (the Executive is the enforcement branch) and since they cannot pass bills of attainder, they cannot convict anyone of a crime (except, of course, the executive) they can't enforce a subpoena, they could, technically, I suppose, impeach Rove, but Miers and Sampson are untouchable, since they are no longer civil officers of the United States.

[Jacobin]

23. I need to go dig back in the Watergate hearings to clear this up

I didn't think the USA for DC was used to enforce congressional subpoenas.

[riderinthestorm]

24. Thanks for doing that. I believe it's an important point.

So the subpeonaed person's attorney argues the Executive Privilege case? The WH wouldn't be involved (cough) in providing that attorney? I mean, GW Bush keeps harping on "we" will fight subpeonas and uses the EP defense hourly.

[Jacobin]

30. I screwed up. See post 29 for correct info

:blush:

Hate when I do that

[northzax]

34. well, the only crime Congress can accuse someone of

besides through impeachment, is contempt of congress. And contempt charges (which would arise from failing to answer a subpoena) are criminal matters, therefore the prosecution of them falls under the purview of the US Attorney for the District of Columbia. When Janet Reno was held in comtempt, it was referred to the USADC, for instance.

To pursue a contempt of congress charge, the USADC must convene a federal grand jury and indict the person, then try them. This almost never happens, because deals are worked out before it gets that far.

I also don't recall an instance in which Congress actually argued in front of the Court. Watergate was Archibald Cox and co, who were special prosecutors appointed by the Attorney General. It's an interesting question, would the General Counsel of the Judiciary Committee have standing to argue in appeals court? I don't think so.

[Jacobin]

29. You are right. I screwed up.

Here's an excerpt from the Nation on how this would work.

Here's how a constitutional collision could unfold. After the new
Congress begins in January, Chairman Conyers sends letters to the
Justice Department and the White House counsel demanding secret
documents that cast light on the scope and mechanics of the snooping.
The questions might include whether Bush obstructed justice when he
denied the security clearances that the Justice Department's Office
of Professional Responsibility needed to investigate the program.

True to form, Attorney General Alberto Gonzales and Bush ignore the
letters. Conyers responds by issuing subpoenas for documents and
testimony. Gonzales then insists that the documents are protected by
executive privilege. The Judiciary Committee, followed by the full
House, votes to hold Gonzales in contempt of Congress--a federal
crime with a punishment of up to a year in prison. After Nancy
Pelosi, the speaker of the House, certifies the contempt citation,
she then forwards it along to the U.S. attorney for the District of
Columbia, demanding that he haul Gonzales before a grand jury.

What happens next? The U.S. attorney might well ignore the request,
leading House Democrats to sue in federal court for an order
mandating the prosecution of Gonzales. Here, the legal precedents are
in the Democrats' favor. During the Teapot Dome scandal in the 1920s,
Congress investigated the attorney general's failure to prosecute
Harding administration corruption, and executive officials refused to
respond to subpoenas. The Supreme Court issued two important
decisions, sustaining the arrest of the attorney general's brother
for contempt of Congress and upholding the contempt conviction of a
witness who refused to answer questions on the grounds that the
courts were already investigating Teapot Dome.

The last time the House cited an executive official for contempt was
in 1982, when Anne Gorsuch, the administrator of the Environmental
Protection Agency, asserted executive privilege and refused to
respond to a subpoena from House members investigating the Superfund
scandal. A grand jury ultimately declined to intervene in the fight.
The White House eventually agreed to provide limited access if
Democrats dropped the contempt citation.

It's difficult to imagine the Bush administration being similarly
accommodating. A White House that has insisted that its executive
authority gives it the right to stretch or ignore laws with which it
disagrees is not likely to fold under threat of congressional
contempt. If Gonzales and Bush decide to fight a congressional
contempt citation all the way to the Supreme Court, it's hard to
predict what the Court would do. In United States v. Nixon in 1974,
the Court rejected Richard Nixon's claim of absolute executive
privilege and ordered him to turn over the tapes that had been
subpoenaed by the Watergate special prosecutor. The Court suggested
that it might reach a different result in a case involving "a claim
of need to protect military, diplomatic, or sensitive national
security secrets." But other cases have held that Congress has broad
power to subpoena even confidential information, because courts
presume that congressional committees will act responsibly and won't
lightly vote to make classified material public--which they're
legally free to do. As the Roberts Court's performance in Hamdan v.
Rumsfeld suggests, it is not shy about standing up to the president
to defend the powers of Congress. And, in a head-to-head judicial
conflict with Congress, Bush could plausibly lose.

http://mail.psychedelic-library.org/pipermail/theharderstuff/20061115/001322.html

Sorry. :blush:

Didn't mean to confuse this thread

[riderinthestorm]

33. Everybody's confused!!! At least you are working to figure it out

I'm sitting here just watching. I'm not even sure where I would search to find the answers which is why I keep asking questions and then sitting back and hoping for a response.

Thanks for working on it!

[in_cog_ni_to]

12. From DailyKos: It seems Mr. Taylor was the counselor to GONZO

Aide to Attorney General Is Interim U.S. Attorney
By Carol D. Leonnig
Washington Post Staff Writer
Saturday, September 23, 2006; Page B05

The Justice Department yesterday appointed Jeffrey A. Taylor, the counselor to Attorney General Alberto R. Gonzales, to be U.S. attorney for the District of Columbia.


Taylor succeeds Kenneth L. Wainstein in running the largest U.S. attorney's office in the country. For now, Taylor will be interim U.S. attorney; President Bush can nominate him to take the job, subject to Senate confirmation.

Wainstein was confirmed by the Senate on Thursday to a new post in the Justice Department, assistant attorney general for national security, after his nomination had been held up for months by Sen. Carl M. Levin (D-Mich.). Levin had been seeking FBI documents relating to its agents' concerns about mistreatment of detainees at Guantanamo Bay while Wainstein was a top aide to FBI Director Robert S. Mueller III.

Hmmm. The Attorney General's counselor was appointed -- not nominated, appointed -- DC US attorney six weeks before Democrats gained subpoena power??

Who is this guy? I asked Nexis, and discovered a curious career arc...

The San Diego Union-Tribune
April 18, 2002, Thursday
HEADLINE: U.S. attorney race loses a candidate but gains another; Jeffrey Taylor takes job in D.C.; DA aide is most recent entry
BYLINE: Marisa Taylor; STAFF WRITER

A federal prosecutor once described by some Washington insiders as a leading candidate for the U.S. attorney post in San Diego has decided not to pursue the job.

Instead, Jeffrey Taylor, an assistant U.S. attorney in San Diego, has accepted work as one of three legal counselors to U.S. Attorney General John Ashcroft.



Taylor, 37, said he withdrew from the process because he wanted to work in Ashcroft's office, not because of any disenchantment with the drawn-out selection process.



A Republican screening committee originally submitted several names to the White House, including that of former acting U.S. Attorney Charles La Bella. The committee also recommended Carol Lam, a Superior Court judge; Robert Brewer Jr., a former Los Angeles federal prosecutor; and Yvonne Dutton, a Los Angeles attorney.

Taylor's name was not forwarded by the committee.

Sources said White House aides intervened at that point because they favored Taylor, who was then working in Washington as counsel for the Senate Judiciary Committee....

Three weeks later, Carol Lam was nominated by the White House.

Taylor must have made a positive impression on Alberto Gonzales at Justice when Gonzales replaced Ashcroft, because he stayed on as his counselor.

But it appears Gonzales saw more pressing work for Taylor to do:

The San Diego Union-Tribune
October 16, 2006 Monday
SECTION: LOCAL; Pg. B-2
HEADLINE: U.S. attorney job in D.C. goes to ex-S.D. prosecutor
BYLINE: Onell R. Soto, STAFF WRITER



He (Taylor) said he looks forward to settling into his new job, which he started two weeks ago.

"Here, you're much closer to the casework," he said.

That includes supervising political cases, including the corruption scandal involving lobbyist Jack Abramoff, in which Rep. Bob Ney, R-Ohio, pleaded guilty Friday.

His office is also prosecuting Mitchell Wade, who admitted bribing Randy "Duke" Cunningham, who pleaded guilty to conspiracy and tax evasion charges in San Diego last year and resigned from Congress..

Wade's sentencing and cooperation in the Kyle Foggo and Brent Wilkes trial hangs in the balance with Taylor's office, under assistant US attorney Howard Sklamberg.

San Francisco Examiner
Contractor's cooperation continues in Duke Cunningham Case
Mar 12, 2007
AP

WASHINGTON - A defense contractor who pleaded guilty to bribing former GOP Rep. Randy "Duke" Cunningham continues to cooperate and may be a trial witness against another contractor and an ex-CIA official who were indicted last month, a federal prosecutor said Monday.

Mitchell Wade "is cooperating in a number of matters" and "may well be a trial witness" in the case against the CIA's former No. 3 official, Kyle "Dusty" Foggo, and contractor Brent Wilkes, the prosecutor said in federal court.

Federal prosecutor Howard Sklamberg gave the update to U.S. District Judge Ricardo Urbina at a status hearing in U.S. District Court for the District of Columbia Circuit.

Foggo, executive director of the CIA until he resigned in May, was accused last month of accepting vacations and other gifts from Wilkes, who in return got inside information that helped him win agency contracts. Wilkes also was accused of funneling bribes to Cunningham. Foggo and Wilkes face 11 counts of fraud, conspiracy and money laundering. They have pleaded not guilty and are free on bail.

The case is being prosecuted by the U.S. attorney's office in San Diego and no trial date has been set.

So, not only is Lam canned in San Diego, but Gonzales appoints his former counselor to manage MZM founder Mitchell Wade's potential testimony against Kyle Foggo and Brent Wilkes in the CIA contracting scandal, as well as tie up the Abramaoff case. All within a matter of a couple of months.

Now, back to the subpoena prosecuting, here's a backgrounder from the New York Law Journal on the DC USA's role in the congressional subpoena process:

A congressional subpoena will identify the name of the issuing committee or subcommittee, the date, time and place of the hearing the witness is to attend, and the documents sought to be produced. The subpoena may further specify the date and place
the documents are to be delivered. Congressional subpoenas are generally served by a U.S. Marshall or committee staff.

When properly served, the witness has a duty to appear and testify and produce the requested documents or present a valid reason for not doing so. The subpoena itself may be defective if it seeks information beyond the committee’s jurisdiction, or it seeks information beyond the scope of the resolution authorizing the particular investigation,
or it may be too vague in its request for documents, or it may be unreasonably burdensome.

Congress can enforce its investigative processes through three different contempt proceedings. The House and the Senate may cite a witness for contempt under their inherent contempt power, or they may invoke a statutory criminal contempt procedure. The Senate also has a separate civil contempt procedure available to enforce Senate subpoenas.



A contempt citation must be approved by the subcommittee, if there is one, and by the full committee, and by the full House or Senate or by the presiding officer if the Congress is not in session.

Once a citation has been certified by “the President of the Senate or the Speaker of the House,” it is referred to the appropriate U.S. attorney, “whose duty it shall be to bring the matter before the grand jury for its action.”

So, to summarize, Attorney General Abu Gonzales appointed his own counselor from the Justice Department to be the US Attorney for the District of Columbia, while the White House and the Justice Department were readying the firing of Carol Lam and seven other US attorneys.

Among the cases Jeffrey Taylor, Gonzales's counselor, assumed were the bribery sentencing of defense contractor Mitchell Wade, the management of Wade's testimony in the contracting fraud cases against Kyle Foggo and Brent Wilkes, and unresolved issues surrounding the Abramaoff case.

Assuming Attorney Taylor were acting impartially and without White House political pressure, he would be sailing through tremendous institutional head winds (just as Fitzgerald did). But given the evolution of the USA firings and Taylor's resume as Gonzales's counselor at Justice, is he not now a hair's breadth away from needing to recuse himself both from the Foggo/Wilkes/Wade proceedings, as well as any potential subpoena enforcement coming down from Congress?

We're sure to see Taylor's name in the news soon. IANAL, so I look forward to input from all you eagles out there.


http://www.dailykos.com/story/2007/3/20/162415/099

[BluePatriot]

19. see related thread

http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=389x463395

I think we settled on getting a Special Prosecutor, pronto, but even that could get problematic.

[Duer 157099]

26. Thank you. I knew this had to have been discussed

Nothing gets by DUers! (well, except prior threads discussing a topic, those get by quite often,lol)

It's amazing how murky the question still is though.

[riderinthestorm]

27. I bumped your thread up, you were on this issue fast!

Sorry about that, didn't see your thread.

But this leads me to another question, who would appoint the special prosecutor? That would be the AG's office right? And doesn't that lead us right back to that loophole?

[northzax]

38. well, sure

but remember, Congress approves the money for DOJ. at some point, they can simply shut Gonzo off, if they want. Without congressional approval, they can't even keep the lights on. No one wants to go that route, not even Gonzo. he'd be facing impeachment and disbarment. ugly stuff.

[riderinthestorm]

39. Oh gawd, so we'd be back to Dems de-funding again?

If they are too cowardly to de-fund the occupation, I have no faith they would go into de-funding the DOJ (sinking feeling in pit of stomach).

[BluePatriot]

40. Exactly.

There has to be some kind of outside body involved but I'm not sure the system's set up for it.

[notadmblnd]

32. I would have to say that at this point,

all the attorneys that were on the list at one time and resigned but kept their mouths shut, are already corrupt. The ones that replaced them in their positions are too. At this point, there's only one I know, that I would trust to be honest.