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Update: Eureka Spring got this posted in Arkansas Blog, where it got this response:
Sen. Mark Pryor's office says that the Justice Department has represented consistently that Griffin was being appointed under provisions of the Patriot Act and thus is a full U.S. attorney and not an "interim" serving under a time limit. Gonzales did represent (dishonestly by all appearances) that it was his intention to seek Senate confirmation for Griffin. The matter has been settled in court, by Judge G. Thomas Eisele's rejection of a challenge of Griffin's appointment by defense lawyer John Wesley Hall. Eisele explicitly held that Griffin held the position under the Patriot Act provision that allow unlimited appointments.
Apparently, the Justice Department doesn't know that it has "represented consistently" that Griffin was appointed under the Patriot Act, because they won't say so on the record. Perhaps Pryor should tell them as much?
Update 2: Amanda Terkel at ThinkProgress got John Boozman to confirm that he sent the names of three candidates to replace Griffin to the White House on March 30. Surprise! He hasn't heard anything more about it. She also links to Gonzales' testimony where he assured Congress he wanted Senate-approved USAs. So what's the hold-up, Gonzales?
It's been almost five months since Kyle Sampson advocated "gumming to death" the Tim Griffin nomination as USA for Eastern Arkansas. Since that time, the Administration has repeatedly claimed that it never had any intention of appointing Tim Griffin using the PATRIOT Act provision giving the AG authority to appoint USAs directly. Most recently, designated firewall defense lawyer Brad Berenson stated that Griffin was not, in fact, appointed using the PATRIOT Act provision.
Berenson said that the letter was technically accurate because Sampson and Oprison never ultimately implemented the plan to install Griffin as U.S. attorney through the PATRIOT Act provision. "The principals never adopted it, and it was never done," Berenson said. "The statement in the letter is accurate."
But if I'm doing the math correctly and if Griffin really was appointed as a normal interim USA, his appointment would have expired on April 20.
I can only think of two possibilities. First, that Rove lackey Tim Griffin is serving as USA in Arkansas despite having no legal basis to do so. Or, that Griffin actually was appointed using the PATRIOT Act provision despite repeated Administration assurances to the contrary. And that we are now in the official "gumming it to death" stage of Griffin's illustrious career.
Now, I'm not a lawyer so perhaps I'm missing other possibilities. I've made five calls to DOJ's Public Affairs Office (if you're wondering, their phone numbers are (202) 616-2777 and (202) 514-2007), yet DOJ has been unable to provide any clarification regarding the legal status of Griffin's appointment as USA. I also twice called Senator Pryor's office (whose number is (202) 224-2353), figuring that, since Pryor met with Attorney General Gonzales on April 23--the first business day after Griffin's appointment should have expired--Senator Pryor might be able to explain Griffin's status. Perhaps Senator Pryor is embarrassed that his lax attitude toward advice and consent was abused so badly, because his staffers haven't returned my call either. If I were a suspicious person (oh, I am, I am) I would assume these people aren't returning my call because they're trying to avoid telling the truth about Tim Griffin's employment status.
Maybe you all can help me clarify this issue. Can anyone find a definitive answer as to whether there is any legal basis for Tim Griffin to continue to serve as the top law enforcement official in Eastern Arkansas?
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Zedcentricity
gumming it to death? they’ve flossed their minds!
Marcy, surely you aren’t insinuating that BushCo would do anything that was less than perfectly legal…?
Does this mean that anyone being prosecuted by that office could claim that the head of the office was acting without legal authority? Holy Zed.
Have you tried contacting Patrick Leahy or Sheldon Whitehouse?
Hugh @ 5
Nope. I wanted to see if we could get DOJ to go on the record on this. The point is, will DOJ ‘fess up to it. How can they not explain what status Griffin has???
But I will call both their offices.
punaise @ 2
You said a mouthful with that one. This thing with Cummins is really hard to swallow.
Bingo!!!!
He’s probably serving the same way Condi ignores subpoenas and Gonzo continues in his fake job. He’s there until someone literally does something about it. They ignore the law and continue to just show up at work, and nothing of substance ever happens. Nothing will change until there is action - not just words.
They don’t follow the stinkin’ laws.
punaise:
Felicitations…apropos le zero. Le premier peut-etre?
OT ~ The GOP Culture of Corruption is alive and well and playing golf.
Under Boehner, Corrupt Conservatives Play Musical Chairs With Committee Seats
punaise @ 2
Mental floss.
Thanks for turnning the rocks over (GOP) (DEMS) it stinks to the high heavens. Thanks E.W.
it is important to get the official doj word, so that once they change it, we have a record.
thanks for this post, marcy. i hadn’t realized that griffin’s status was still in play. he’s been id’d as the poster boy for patriot act appointments so often i thought that was settled.
ew -
NOBODY can stir the weeds like you do! And Hugh’s suggestion for contacts sounds like a couple of good starting points. H*ll, the Dems oughta be calling you and asking, “What is our assignment for the day, ma’am?” They might get somewhere a great deal faster than they’ve been draggin’ *ss to this point.
The telephonic equivalent of “I don’t recall” and “I am searching my memory but don’t remember”.
Reason one: Because King George the Turd wills it.
-GSD
Y’know, it would be a lot of fun to watch Leahy drop this in a hearing like a water balloon on Abu’s head.
EmptyWheel - Brilliant!
Hope we get some answers - and that this gets some serious attention.
Hi EW,
You and Phoenix Woman are hurtin’ my head this a.m. with all these facts and reality-based questions…
Did anyone catch Sydney Blumenthal’s article in Salon, All Hail the King. Great analysis of when and what happens when a loyal Bushie leaves the king’s circle of trust.
http://www.salon.com/opinion/b.....7/loyalty/
Not only Griffin. What about the “Interim USAs”. Doesn’t the 120-day rule apply to all Interim appointees resulting from the 12/7/06 firings - or are those slots USAless right now?
Biodun @ 8
merci, but I lost my zedginity a long time ago. truth be told, I’m just a casual zedder (right place right time, crime of opportunity kind of thing), rather than a true devotee of the hunt.
Hey - are you guys not covering the Plame motion today? Or is that letr on.
That’s all. Thanks for everything.
Waccamaw @ 13
perfect suggestion!
Marcy deserves the pew-litzer prize for weed stirring. Thank you for being you. I’ve got to run take care of business. Once again, please don’t drop any bombshells until I return, OK?
Well, I drop by and look who is in the house. I think Claude Rains would be shocked, SHOCKED, that such perfidy is going on at the Bush Casino. On a serious note, I recall seeing somwhere a theory where, if you couple both an acting and an interim status, you could obtain a potential period of a little over 300 days (330 comes to mind, but don’t know why). There may be precedent for something like this, but I am neither aware of it, nor can I find it. Barring some viability of this contrivance, I do believe Griffin is serving without authority.
Thom @ 22
So many scandals…so little time.
Did I read that Leahy/Specter gave Gonzo 48 hours to respond (tomorrow deadline) to their ‘angry’ letter?
If so, what are the consequences (surely anticipated) for further non-compliance?
LS @ 20
Not really.
First of all, most of them were hired over a month later (because the first resignations took place in late January-early February. Also, most of them fall under Vacancy Reform Act replacements, in which one of the top AUSAs takes over in case of resignation of the USA. The one exception is Scott Schoools, who is technically an EOUSA employee, who replaced Ryan in SF.
And in any case, most of THOSE folks (again, with the probable exception of Schools) we have an incentive to leave in place, precisely because they are career employees and in the case of AZ and SDCA, seem to be letting public corruption cases go forward.
quick flyby from paris. give ‘em hell, marcy!
bmaz @ 25
I actually think that’s what they’ll do, bmaz, yes.
But again, I’d like to make them say so. If only so we can push the gumming line some.
emptywheel @ 27
Thanks. That clears that up for me.
Thom @ 22
Wasn’t planning on doing anything here, though perhaps I should. I don’t expect it’ll be good news, was “keepign my powder dry” for the sentencing hearing in a few weeks.
Great post, great question for DoJ, EW.
While driving my neighbor to an eye clinic this a.m. we talked @ length about the USA firings. She’s quite the radical & was a CCC (card carrying Commie) during the Hollywood bad old days. A mind like the proverbial steel trap, @ age 89.
Her comment on the Cummins et al firings- “Marie, when our DoJ starts pulling shit like this & trying to hide it in plain sight, it’s time to bring Ed Murrow back from the grave to call them out on it. MSM is more in the pocket of big business than ever before & is worthless right now.”
As always, she is an inspiration…
Sam W @ 4
Maybe the person to ask is one of the Federal District judges for Eastern Arkansas.
A search of the online dockets only goes up to 5/15, with not that many “USA” plaintiff cases filed in the weeks before. So it’s just possible that the issue hasn’t come up in court yet.
If it does, it will be highly embarassing, particularly if Griffin tries the usual GOP ‘bluster through’ strategy, then gets brought up short by a demand that he produce documents that show his current status.
Judges really hate being bullshitted.
SOP=IOKIYAR
Pronounced Eye-okie-ar
radiofreewill @ 27
I think a guest TH on Hardball said in effect another round of sand-pounding then off to court. More resistance.
BTW, I’m very tired of TH talk about “running out the clock” and the “American people look askance at impeachment” etc. Finally someone last night said the FFs got it right, and Congress has the duty to impeach. I say impeach them all, Bush, Cheney, Rove, and Abu (am I missing anyone).
emptywheel @ 30
OK. Now I am feeling rather stupid. It was you that promulgated that thought wasn’t it?
From DoJ website:
My bold. How? emptywheel on the trail.
I don’t know the answer, but why aren’t our Reps doing something about it? How many USA’s are currently serving w/o Senate approval? Why are they allowing this? Frustration level rising.
bmaz @ 25
Dayum! Wish I could talk as pretty as you :-P
Also it kind of depends on which statute applies. Before the Patriot Act shenanigans, I think and please help me on this that at the end of the 120 days the choice of the interim USA reverted to the judge in the district, which was one of the ostensible reasons that the Bush DOJ changed the statute.
EvilDrPuma @ 3
Erm
Didn’t we have a budget which was different in the House and Senate last year?
Details details details
Leftist libruls insist on taking that pesky Constitution literally about stuff other than abortion.
emptywheel:
Does this clarify the situation?
bmaz @ 37
No, not at all (didn’t mention it in the post, either, bc I’m playing dumb). But I had read the same thing–that you can stretch out to 330 or something. And assumed that’s what the technical justification is at this point.
Lou Costello @ 10
Minority Leader Boehner’s motto: Smaller petri dish than Hastert’s; same familiar culture.
When there’s only corrupt Congressmen to choose from, what’s a Leader to do?
Well what does the Patriot Act say? Congress evidently didn’t read the bill before passing it, maybe we should take a look.
Satan luvvs Repugs @ 34
i would think a defense attorney handling a federal case in arkansas would raise the issue before the judge…
Biodun @ 42
[Professor Farnsworth]Oh, my, yes…[/Professor Farnsworth.]
Sam W @ 4
It’s certainly another potent arrow in the defense bar’s quiver.
Need list of defense attorneys in Arkansas who are arguing cases before federal court.
Ready, set, go.
Biodun @ 38
Ah yes–thanks for pointing that out, Biodun, I had noticed it too. In every discussion of this topic, particularly Griffin’s own announcement that he’s not going to seek Senate confirmation, the “how” remains unanswered.
On Feb. 15, Griffin suddenly announced that he had “made the decision not to let my name go forward to the Senate” for approval. Instead, he will serve indefinitely as an “interim” prosecutor. By avoiding Senate approval, Griffin will also avoid having to answer questions under oath about his role in a plan to supress Florida votes — primarily those of African-American servicemembers — in the 2004 election. From the LA Times, 10/28/04:
Did White House Pull Nomination To Avoid Questions Over 2004 Minority Voter Suppression?
punaise @ 21
moi aussi.
re: gumming
Bazooka-type gumming???
re: Gonzales
AP quoting Specter as saying “I think Gonzales will be resigning following our investigations”.
ccmask @ 52
I think that is the correct reading of his decision not to seek Senate approval. But with Berenson out there claiming Griffin was in fact normally appointed, I think it would cause DOJ some embarrassment to have to admit that Griffin is, in fact, a PATRIOT appoint. Of course, they seem unwilling to do so thus far. Minor issue, I know.
The more this develops it appears the Senate Judiciary at least is beginning to make a case against bush directly. I hope so. There is enough to go on here to possibly get him to resign in disgrace thus putting an end to the bush dynasty.
The executive branch is finding itself more and more between a rock & hard place the more they let Gonzo talk and or even stick around. But then if they let him go who can they find to do replace him that will pass a Senate confirmation hearing.
Prediction, Gonzo goes down and bush tries to get along with out a permanent AG until Jan 2009. Who is second in command right now?? There have been so many rats fleeing that I lost track.
schumer’s people seem to be listening and paying attention…
emptywheel @ 51
I was just trying to find that statement. Apparently, Griffin knew his appointment wouldn’t survive confirmation hearings.
Sounds to me like Griffin is grandfathered in.
Listen. While you are attacking Dear Karl Rove, his predictions are coming true!
“Hundreds of illegals” register in Texas.
Here we go.
-GSD
Hm. I called and got various voice mails, spoke to one actual live person, a young man, who rather frantically said his (Griffin’s) assistant knows all that stuff, not him, and she’d have to call me back.
The number was 501-340-2650.
The statute is the only source of authority for appointment of a USA. The PATRIOT Act amendment did not create an alternative menas for appointing USA’s. It amended the existing statute to delete the provisions for 120-day appointments. The statement that Griffin was not appointed using the PATRIOT Act procedure appears to me to be nonsense. At the time of his appointment there was no other way to appoint him.
Here is the wording of the amendment:
SEC. 502. INTERIM APPOINTMENT OF UNITED STATES ATTORNEYS.
Section 546 of title 28, United States Code, is amended by striking subsections (c) and (d) and inserting the following new subsection:
”(c) A person appointed as United States attorney under this section may serve until the qualification of a United States Attorney for such district appointed by the President under section 541 of this title.”.
The deleted subsections (c) and (d) provided for the 120-day limit on interim appointments and appointment by the Court if no Senate-confirmed replacement is made in that time. The new section (c) permits the “interim” appointee to serve until a new candidate is confirmed - that is, indefinitely.
Methinks the congresscritters investigating the DoJ are beginning to feel like Phillistines by being beaten by the jawbone of an ass.
ccmask @ 59
I think the grandfather you write about is Augusto Pinochet.
-GSD
Great Tony Auth cartoon on Cheney!
emptywheel:
Did you see my 43?
Griffin, asleep on the job
OT
The national average for regular gasoline hit another high today $3.114.
The wholesale price is $2.3902 which is near high.
What this means is that gasoline prices are very high, that they will remain high, and that there are pressures in the market to keep them going higher for a while.
In crude oil at the moment,
Nymex Crude Future $63.58
Dated Brent Spot $69.12
WTI Cushing Spot $63.74
The Brent (world) benchmark is very high. The Cushing (US) benchmark should not be so far off the Brent and indicates that a) it is rapidly ceasing to be a meaningful benchmark and b) a glut in crude supplies remains which is not being processed in a timely fashion by US refineries: another indication that US gasoline inventories will remain tight.
I expect that oil company executives are going around in private with peglegs and eye patches and saying “Arrgh” a lot these days.
Gunga Djinn @ 54
Wow! Is this the same Specter — Judiciary Committee? Is there a link?
Hugh @ 41
Claiming, as they did after getting caught, that their concern was that a USA appointed by a Federal judge but reporting to the AG was — wait for it — a violation of separation of powers!
As if that ever kept them up late at night, sleepless….
do-si-do@36
BTW, I’m very tired of TH talk about “running out the clock” and the “American people look askance at impeachment” etc. Finally someone last night said the FFs got it right, and Congress has the duty to impeach.
I agree. Non other than Sheldon Whitehouse, on Hardball last night was spewing the “impeachment, because of the Clinton years”, is not a viable option. I want to know where he got this info; that the American people are impeachment fatigued. It is a Republican talking point, one that Whitehouse should not be repeating.
It was Jonathan Turley on KO who said that impeachment is not only the correct option, it may very well be the only one.
punaise @ 67
And do not let sleeping griffins lie.
OT, but as to Plame and EW’s comment about not being optimistic. This is the Judge who they are appearing before. Some interesting connections:
Judge John D. Bates
Judge Bates was appointed United States District Judge in December 2001. He graduated from Wesleyan University in 1968 and received a J.D. from the University of Maryland School of Law in 1976. From 1968 to 1971, he served in the United States Army, including a tour in Vietnam. Judge Bates clerked for Judge Roszel C. Thomsen of the United States District Court for the District of Maryland from 1976 to 1977 and was an associate at Steptoe & Johnson from 1977 to 1980. He served as an Assistant United States Attorney for the District of Columbia from 1980 to 1997, and was Chief of the Civil Division of the U.S. Attorney’s Office from 1987 to 1997. Judge Bates was on detail as Deputy Independent Counsel for the Whitewater investigation from 1995 to mid-1997. In 1998, he joined the Washington law firm of Miller & Chevalier, where he was Chair of the Government Contracts/Litigation Department and a member of the Executive Committee. Judge Bates has served on the Advisory Committee for Procedures of the D.C. Circuit and on the Civil Justice Reform Committee for the District Court, and as Treasurer of the D.C. Bar, Chairman of the Publications Committee of the D.C. Bar, and Chairman of the Litigation Section of the Federal Bar Association. He was a member of the Board of Directors of the Washington Lawyers Committee for Civil Rights and Urban Affairs. In 2005, he was appointed by Chief Justice Rehnquist to serve on the U.S. Judicial Conference Committee on Court Administration and Case Management. In February 2006, he was appointed by Chief Justice Roberts to serve as a judge of the United States Foreign Intelligence Surveillance Court.
And also:
Mike Luckovich’s take on Republican loyalties!
Biodun @ 66
Yes.
We know that on the 19th there was that discussion. But we also know that, several times afterwards in discussions with Congress, AGAG and Sampson said they decided against that.
The answer is, in fact, probably Bloix’s at 62–he was necessarily appointed by PATRIOT. But the point I’d like DOJ (and Pryor, for that matter), is not just taht he was statutorily appointed by PATRIOT, but that they are going to treat him as such, and gum up any attempts to replace him.
Thank you Bloix for the actual statutory language. See, that didn’t take me very long to read.
Yo Congress, read this stuff before you make it the law of the land, ok?
flatford39 @ 56
who, for that matter, is THIRD in command?
interesting element i did not know:
in the absence of an independent counsel’s office, and the spotty record of doj where special prosecutors are concerned, this oped piece in the times at the end of march addressed that person’s role in launching special investigations. (FDL may already have discussed this; if so, apologies.)
by neal katyal, now a law professor at georgetown.
IN 1999, when the Independent Counsel Act (the law that gave Kenneth Starr and Lawrence Walsh their mandates) was expiring, I was given the job of writing the new Justice Department rules for the appointment of a special prosecutor since the department would once again be responsible for overseeing such investigations.
There was one hypothetical to worry about once the Independent Counsel Act lapsed: a case in which the attorney general herself and her deputy were suspected of possible misconduct. The rules were therefore written to vest the decision about whether to appoint a special prosecutor in the top Justice Department official not embroiled in the controversy.
Today, the only way to get to the bottom of the United States attorney scandal — which involved the administration’s firing of nearly 10 percent of America’s top prosecutors — is to use these rules and appoint a special prosecutor.
so do we know who that person is?
Helen @ 71
I’m with you all the way…Impeachment and an Indepenent Counsel to ivestigate the USA firings as the very least should be our goals now!
I was very disappointed to hear Whitehouse repeat the Republican talking points also.
do-si-do @ 36, it’s as if somewhere it is written that Congress’s oversight does not include impeachment when dubious assertions are made that time is a consideration and that the American people MAY not be in the mood for impeachment. The American people are not in the mood for a lot of things; such as, the Iraq war, but Congress isn’t offering any apologies for not effectively stopping the war. The politicians seem to never act on what is right and what is wrong but rather almost always how it affects reelection.
I’m beginning to wonder why we need a two-party system. Why not have solely the Democrats for six years and solely the Republicans for six years and any other party that wants to join in the fun for six years? Or until the clock runs out on any of it.
Hugh — diamond-studded eyepatches and solid-gold peglegs, yes….
AZ Matt @ 65
would have been better if there was evidence that he’d shot him in the face.
OT-Bush was asked this a.m. if the had sent Card and Abu to Ashcroft’s bedside. He’s not going to talk about it.
Danziger’s Great Moments on the War on Terror!
I had an odd thought yesterday amid all the frustration.
Do the Bushies have a plan to take over our government?
I know Im being nutty but havent they put everything into undermining each part of our government and scoffing at the Constitution. Why would they just leave peacefully under the rule of law?
egregious @ 77
Exactly.
While we are allowed to talk about this provision being “slipped into the bill in the dead of night without being read,” it rings particularly hollow when actual Senators (thinking of DiFi particularly) sing the same tune.
OT:
The republcans can forget about September the end of the last FU.
No end in sight
Three months into the job, General David Petraeus says it is difficult to predict how well the surge of troops in Baghdad will succeed before the full number of troops arrive and that he would not have a definitive answer about prospects for stability by September, when he is to report back to Congress.
“I think generally is is still early days. We are literally still just setting the footprint if you will to do what we intend to achieve but until we get all those forces in and have really worked with them for a while I think it’s difficult to see what’s going to happen,” he told me in an interview Tuesday evening.
Hugh @ 41
there are 21 US Attorneys who were not nominated by the President, including Tim Griffin.
If I had my druthers, every word of every piece of legislation would be read into the record and available for review by the citizens who have to live under the laws.
Is it noon yet? I need a drink…
I find it wholly intolerable that these jokers enact federal laws that they haven’t even read!
Kafka is spinning in his crypt.
Isn’t Mr. Griffin a judge or a JAG? Does that count?
emptywheel @ 76:
You know BushCo will never admit that–gumming up attempts. *g*
Helen @ 71
I agree. Non other than Sheldon Whitehouse, on Hardball last night was spewing the “impeachment, because of the Clinton years”, is not a viable option. I want to know where he got this info; that the American people are impeachment fatigued. It is a Republican talking point, one that Whitehouse should not be repeating.
Impeachment fatigued?? So the take-home message for power-crazed wannabes is to plan ahead? Hold spurious investigations now so when a real team of crooks comes to bat, the general public will be “too tired” to hold you accountable? What a crock!
snowbird42 @ 85
That’s what makes me nervous about the phrase “read into the plan.”
WHAT PLAN.
They already set up a shadow government, permitted by laws passed [but perhaps not read] by our Congressional representatives. The idea was we needed some government if we lost too many top people in a terrorist attack.
I cannot imagine Congress would have gone along with simply having someone declare, Ok, it’s time for the parallel government now.
dmg @ 78
Solicitor General Paul Clement–which is technically what ahs happened. Gonzales has recused and Clement is in charge. It might comfort you (not!) to know that Clement clerked for Silberman AND Scalia and is a BIG fan of the Unitary Executive. Supposed to be smart as hell. Kind of like Addington.
dmg @ 78
There are no such individuals.
ccmask @ 90
No
Solai @ 83
Somebody’s clearly wishing for an “ongoing investigation.”
Not talking about it because you’re not going to talk about it doesn’t have the same sheen of respectability as an “ongoing investigation.”
emptywheel @ 44
I read the same thing as you, but can’t remember the details. I DO remember, though, that after interim period (120 days) runs out, he has to be renamed for position for an additional 180 days. IIRC, the second period is called acting USA.
Folks, sorry to run–I’ve got to go fetch a friend at the airport. But I will check back in later because you’re coming up with important points.
“Mr. Comey said the bizarre events in Mr. Ashcroft’s hospital room were precipitated by a White House request that the Justice Department sign off on a continuation of the eavesdropping, which started in October 2001″
http://rawstory.com/news/2007/....._0517.html
When did he say that?
I believe Mr. Griffin is a JAG-off.
-GSD