Yesterday, I did a post following Jesselyn Raddack's diary regarding U.S. Attorneys John McKay and Paul Charlton. This morning, Murray Waas at the National Journal has an article up that should really put the heat on Paul McNulty and Alberto Gonzalez. In the article, Michael Elston, McNulty's Chief of Staff, is reported to have told Congressional investigators that he was instructed to call McKay, Charlton, and Bud Cummins because McNulty had learned that McKay, Charlton and Cummins might be called to testify.
I will re-post a portion of my diary from yesterday, so you don't have to link to it.
Title 18 of the U.S. Code is the place to start. Part 1, Chapter 73, Section 1512 describes witness tampering. I think there are three possible subsections which could apply. First, subsection (b)(1) or (2)(A):
(b) Whoever knowingly uses intimidation, threatens, or corruptly persuades another person, or attempts to do so, or engages in misleading conduct toward another person, with intent to—
(1) influence, delay, or prevent the testimony of any person in an official proceeding;
(2) cause or induce any person to—
(A) withhold testimony, or withhold a record, document, or other object, from an official proceeding;
That one's punishable by up to ten years per count.
Then there's subsection (c):
(c) Whoever corruptly—
(1) alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding; or
(2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so,
shall be fined under this title or imprisoned not more than 20 years, or both.
And finally, there's subsection (d):
(d) Whoever intentionally harasses another person and thereby hinders, delays, prevents, or dissuades any person from—
(1) attending or testifying in an official proceeding.
That one's only punishable by one year.
So, there are three possible statutory violations for witness tampering alone.
Testimony before Congress counts as an "official proceeding" under the statute.
Now, take a look at the money quotes from the National Journal article (which can be found here in its entirety).
The chief of staff to Deputy Attorney General Paul McNulty has told congressional investigators that phone calls he placed to four fired U.S. attorneys -- calls that three of the prosecutors say involved threats about testifying before Congress -- were made at McNulty's direction.
Michael Elston, the chief of staff, told congressional investigators in a closed-door session on March 30 that McNulty specifically instructed him to make the phone calls after the Justice Department's No. 2 official learned that the fired prosecutors might testify before Congress about their dismissals.
A transcript of Elston's confidential interview with the congressional investigators was made available to National Journal.
A couple of points to be noted here. 1) Murray Waas is looking at a transcript of Elston's testimony. Which means that we're not dealing with poorly sourced material -- we're dealing with the verbatim statements of Elston himself. Waas is turning out to be one of the foremost reporters on this issue. 2) Elston's statements are clearly intended to be self-exonerating, and intended to implicate McNulty as the source of the phone calls.
Why would he do that, if he weren't concerned about where this is headed? As I tried to point out yesterday, the defense that Elston is apparently hanging his hat on is this: he didn't intend to intimidate the witnesses when he called them.
That is what we in the business call a question of fact, appropriate for a jury to decide. Juries routinely have to make determinations of fact based upon evidence, which is often circumstantial. And when it comes to questions of intent, the evidence is almost always circumstantial. Rarely do attorneys, or prosecutors, get the smoking gun, a document setting forth the murderer's plan of how to commit the murder, or the e-mail that says let's fix prices on energy. Typically, the jury has to make inferences based on the facts surrounding the alleged perpetrator's actions.
Was the murder first or second degree? Did the Defendant pre-plan the killing? He found his wife in bed with another man, walked into the den down the hallway, got his gun out of the safe, loaded it, then went back into the bedroom and shot both his wife and her lover. That's pre-meditation -- you can infer that he was thinking about killing the two when he left the room, obtained the weapon and loaded it. He could have walked out of the building, he could have got a videocamera and taped it for use in a divorce, etc. His actions are what the jury looks at to infer his intention. Now, let's look at what the three USA's inferred about Elston's intentions in making the phone calls:
In formal response to written questions posed to him by the House Judiciary Committee, Charlton said, "I believe that Elston was offering me a quid pro quo agreement: my silence in exchange for the attorney general's."
Cummins testified before the Senate Judiciary Committee on March 6, at which time a contemporaneous e-mail he wrote within an hour of his phone call with Elston was released. In the e-mail, which he sent to five of his fellow prosecutors, Cummins said that the "essence of [Elston's] message" was that if any of the fired U.S. attorneys had pressed their case in the media or before Congress, senior aides to Attorney General Alberto Gonzales might "feel forced to somehow pull their gloves off" and accuse the prosecutors of ineptitude or poor management.
McKay said that the message he took away from the conversation was, "If you remain silent, we will not out you as someone who was forced to resign."
These quotes are telling, for the following reason: the three USA's Elson called all got the same message -- don't testify, or else. And this part is key: we're not dealing with three schmoes off the street. These three guys are United States Attorneys, who are some of the best in their field at putting together cases in which they have to evaluate the strength of the evidence of the intent of the alleged perpetrator. And they're telling the Congress and the public that, in their expert opinions, they all three inferred the same intent on the part of Elston and McNulty when they got the calls. Felt so strongly about it that they in fact made notes, sent out e-mails, to memorialize and corroborate the evidence of the conversations.
Now, look at Elston's defense; essentially, "I didn't intend to intimdate anybody, and besides I was only following orders."
Elston said that McNulty only wanted him to tell Cummins that the department had no position on whether he should testify: "[McNulty] also told me to be very careful when I called Bud back and to make it very clear to him the Department of Justice had no position on whether he testified or not. And that he could testify if he wanted to, or not testify. It was entirely up to him.
"And that conversation sticks in my mind because the deputy attorney general was very earnest and being very careful. And having no experience on Capitol Hill... I followed his instruction."
And then Elston's lawyer starts blaming the USA's:
In an interview, Robert Driscoll, Elston's attorney, said that the U.S. attorneys might have been mistaken in their accounts of their phone calls with his client. "From the information I have seen, none of the fired U.S. attorneys quote Mike as making any type of explicit threats, and each one focuses more on their interpretation of the conversation than [on] what Mike actually said. Their interpretations appear in some instances to be unjustified, based on their own descriptions."
He is, of course, joined by a Justice Department spokesman:
Justice Department spokesman Brian Roehrkasse disputed the notion that Elston’s phone calls to the fired prosecutors could have been viewed as an attempt to keep them from testifying before Congress. At the time the first phone calls were made in January, Roehrkasse said, the issue of the prosecutors' dismissals had attracted so little attention that it would have been highly unlikely that any of prosecutors would have thought that they might be called upon to appear before Congress.
Do you see the misdirection going on here? Elston and the DOJ are trying to turn this into an issue of whether or not it was reasonable for the USA's to feel intimidated -- based on the assumption that the USA's didn't know that they might be called to testify. But look again at the statute -- it's not a question of whether or not the witnesses actually knew they were going to testify, or even whether they felt intimidated. The crime is complete upon commission of the act that is intended to intimidate or influence, regardless of the success or failure of the intimidation or influence. The other aspect of this "defense" on the part of Elston and the DOJ is classic Rove: how can you trust the judgment and veracity of these fired USA's? Further throwing these Republican Bush appointees under the bus, in order to protect . . . who?
This is turning into a classic prosecution, making the smaller fish turn on the bigger fish. It looks to me as if Elston is desperately trying to cover his own a$$, and is willing to throw McNulty under the bus to do it.
Like I said before, the whole article is worth a read. Personally, I felt vindicated by this last part:
"But if that sort of approach had been made to a witness in an active proceeding that you were leading, and you were extremely proactive about it, that would lead you where?"
"Well, we'd certainly investigate it and see if a crime had occurred."
"And the crime would be?"
Cummins responded: "Obstruction of justice. I think there are several statutes that might be implicated -- but obstruction of justice."
Finally, Whitehouse looked toward Carol Lam, the fired U.S. attorney from San Diego.
She answered without hesitation: "Fundamentally the same answer: witness intimidation."
Carol Lam, bane of Duke Cunningham, concurs with my analysis.
Now, assuming Elston throws McNulty under the bus, who's McNulty going to throw under the bus? Break out the popcorn, people. It looks like there's a real summer blockbuster coming, and it ain't Spiderman 3.
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UPDATE: Don't have much time for this, but it looks like the pieces are beginning to fall into place to tie this directly to our beloved Karl Rove. Two new pieces out this afternoon need to be looked at by everyone following this storyline.
First, there's James Rowley's report in
Bloomberg. Hat tip to drational on this one.
Monica Goodling, at the time an aide to Attorney General Alberto Gonzales, sobbed for 45 minutes in the office of career Justice Department official David Margolis on March 8 as she related her fears that she would have to quit, according to congressional aides briefed on Margolis's private testimony to House and Senate investigators. The aides spoke on condition of anonymity.
Margolis's description of the emotional scene in his office sheds new light on divisions that were developing in the Justice Department's Washington headquarters as the Democratic-controlled Congress was demanding documents that might show White House involvement in the dismissals.
The story goes on (Note that this is pretty heavily edited):
D. Kyle Sampson, Gonzales's chief of staff, resigned March 12, the day before documents disclosing that the White House initiated the dismissals were turned over to Congress. . . .
Gonzales blamed Sampson for not keeping him informed. Democrats accused Gonzales of trying to make Sampson a scapegoat. . . .
Margolis testified in private that he tried to console Goodling and listened to her discuss her personal life, a congressional aide said. . . .
Three hours before Goodling visited his fourth-floor office, Margolis told House and Senate investigators that Sampson dropped by to say he had information Margolis needed to know, one congressional aide said.
Margolis recounted that Sampson read his e-mail exchanges with White House aides that showed the decisions on firing the prosecutors were closely coordinated with members of the president's staff, the aide said.
Margolis recalled that he was stunned to learn the extent of White House involvement in the dismissals, congressional aides said. Margolis testified that preparation for McNulty's Senate testimony -- which took place more than a month before his meetings with Goodling and Sampson -- was based on the assumption that the White House only became involved at the end of the firing process, the aide said.
McNulty told the Senate Judiciary Committee on Feb. 6 that the White House's only involvement the White House's only involvement was that presidential aides were informed of the decision before the U.S. attorneys were told.
After Sampson left his office, Margolis testified that he went toward McNulty's office to inform his boss and stopped because Sampson had already gone into the room carrying the binder filled with White House e-mails, the aide said.
Are you with me so far? Margolis is now testifying that Goodling came to him on March 8th, after the intimidating phone calls made by Elston at McNulty's behest, and was distraught because her career was over. Which is merely important because it corroborates that it was that day that he had the other conversation with Kyle Sampson, who later threw Alberto Gonzolez under the bus in his testimony before the Senate Judiciary Committee. Sampson reads e-mails that directly contradict what McNulty was coached to tell congress in his testimony, than leaves Margolis' office, and takes said e-mails with him to McNulty's office. The e-mails clearly reflect, if Margolis' testimony is be believed, that "the White House" was directly involoved in the firing process.
Then there's this, from Newseek. On March 5th, three days before Monica's breakdown and Kyle Sampson's revelation to Margolis about the White House involvement, a meeting was held in the White House, in which Karl Rove took part, and in which the topic of discussion was:
The Justice Department needed to provide specific reasons why it terminated the eight prosecutors in order to rebut Democratic charges that the firings were politically motivated. The point Rove and other White House officials made is "you all need to explain what you did and why you did it," McNulty told the investigators.
(break)
At least three participants in the March 5 meeting—Rove, Kelley and Kyle Sampson, former chief of staff to Attorney General Alberto Gonzales—were aware of the White House role in pushing to have U.S. attorneys fired, according to another Justice Department official who attended the meeting but asked not to be identified talking about a private meeting. But the subject of the White House role in the firings never came up, the official said, because at that point, it had not become a prime focus of congressional interest. "Quite frankly, those weren’t the questions that Congress was asking at that point," said the official.
Both articles are worth looking at. But it certainly gives the appearance that, indeed, Rove has been heavily involved in all of this. It also strongly suggests that there is a lot of finger-pointing going on in behind-closed-door testimony. Nothing in any of this relates directly to whether or not the January phone calls to McKay and Charlton were intended to intimidate the, but it does strongly suggest that there was a continuing effort to "keep the lid on" what really happened with regard to the firings and whether, and to what extent, the White House (read, Rove) was involved.
Which does, in a roundabout way, suggest that indeed, the phone calls were intended to influence potential witnesses. The White House did not want Congress looking into this, and they didn't want the USA's to testify.
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3rd & Final Update:
Quick note on the timeline, and then I'm out of here. Thanks to all those who've stopped by, by the way.
January 17th, Elston calls 4 USA's, allegedly to keep them to keep quiet, on the quid pro quo that Gonzalez won't badmouth them in front of Congress. McNulty is the motivating force for the calls.
January 18th, Gonzo testifies, essentially keeps his end of the "silent" bargain, denies much knowledge or involvement, doesn't criticize these USA's in any significant fashion. Doesn't tell Congress that White House has been involved in the process.
February 6th, McNulty testifies to Congress, White House not involved in process to fire USA's.
The scandal builds.
March 5th, Rove calls conference at the White House, to tell McNulty, Sampson et al, to get their stories straight, but McNulty is not informed of Rove/White House involvement.
William Moschella testifies on March 6, it's a disaster, his testimony is patently unbelievable as to why the USA's were fired, begins storyline that the USA's were all fired for "performance reasons."
March 8th, Margolis and McNulty find out from Sampson just how they've been set up, and the extent of White House involvement.
Not sure of the date at this point, but Sampson goes before Congress a couple weeks later, and testifies that he's got no documents pertaining to the firings, and that all he ever kept was a disorganized file, which he no longer has.
May 3/4, stories come out regarding McNulty's testimony, which is corroborated by Margolis' testimony, that Sampson had a file folder full of White House e-mails demonstrating the White House involvement in the firings. Sounds like maybe they need to get Sampson in to testify again, if I've got this right.
Anybody sees where I'm going wrong, feel free to let me know.
I'll check back, probably not until Monday, though. Thanks, Kossacks!