POGO has gained access to an extraordinary internal document from the Office of Special Counsel, an independent federal agency charged with protecting whistleblowers from reprisal. Clearly marked "DRAFT," it is a memo dated January 18, 2008, to Special Counsel Scott Bloch from the members of a special task force. The task force was created, according to the memo, in May 2007, "to pursue certain complex and high profile investigations, such as the firing of the U.S. Attorneys and the political presentations given by the White House Office of Political Affairs (OPA)." The stated subject of the memo is "Summary of Task Force Activities and Recommendations," but it reads at times like an anguished cry from investigators charged with an important mission but virtually every recommendation they make is countermanded by their boss. If they recommend going forward with an inquiry, Bloch says no. If they say they lack evidence or jurisdiction, he orders them to go forward.
The inescapable conclusion reached from poring through the contents of this 13-page memo is that Bloch was deliberately creating the impression of a huge ongoing multi-faceted investigation of the White House--at the same time that he himself was being investigated by another arm of the White House for various forms of misconduct. [NOTE: someone used a highlighter on the document, making certain passages nearly impossible to read. We have transcribed those darkened parts here.]
Here is my analysis, along with some juicy quotes.
Office of Political Affairs:
The task force (TF) began to examine allegations that 25 federal agencies had received political briefings from the White House Office of Political Affairs that may have violated Hatch Act bans against the use of government resources to promote or oppose a political party or candidate. The task force received hundreds of documents from the agencies and thousands from the White House about the briefings. But as the investigators proceeded in their classic methodical way, they received new directions from their boss: transfer a Hatch Act complaint against Commerce Secretary Gutierrez from the Hatch Act Unit to the task force); merge two complaints against Karl Rove into the ongoing OPA investigation; draft new requests for information to the White House demanding copies of all email sent or received by 50 OPA employees from January 2001 through November 2007, from both the employees' government accounts and their RNC accounts.
The first cry of anguish followed: "TF expressed concerns that this request is too broad and may exceed OSC's jurisdiction" (emphasis in original).
But there was more. The Special Counsel demanded that the TF seek even more records from the White House: all travel records on Air Force One; all procedures for telephone and fax machines; all grant awards, etc. Again the protest from the task force: "After reviewing all documentation received and finding no information or evidence to suggest that agencies directed grants or agency resources to help candidates or political parties TF believes this request is overly broad."
The task force recommended ways to narrow the investigation, but Bloch denied them. When the task force drafted a letter and subpoena to the RNC, Bloch returned the draft with the order that it be expanded to include ten new topics.
U.S. Attorney Firings:
After former U.S. Attorney David Iglesias filed a complaint with the OSC alleging that his discharge may have violated the Hatch Act, the task force was ordered by Bloch to broaden the inquiry to all nine U.S. Attorneys who had been fired. According to the task force's memo, to establish a Hatch Act violation, there must be proof that an individual employed by an executive branch agency had used official authority to influence the results of an election. Iglesias had complained about calls he had received from Sen. Pete Domenici and Rep. Heather Wilson, both Republicans of New Mexico. The Justice Department meanwhile sent more than one letter to OSC asking it to suspend its investigation pending DOJ's criminal inquiry. Bloch writes Justice saying OSC will not suspend, even though "TF does not find any evidence of a Hatch Act violation…and expresses concern about the lack of any evidence that there was a Hatch Act violation."
Political Hiring Practices and Personnel Decisions at Justice Department:
Following public hearings in Congress from former Justice Department officials that "certain officials at DOJ took into consideration political affiliation when determining whether to hire or promote certain individuals," along with testimony from the former chief of the Voting Section of the Civil Rights Division that he was ordered to change evaluations of attorneys based on political affiliation, the task force recommended "that this case be opened immediately and that the TF investigate whether individuals at DOJ committed any PPPs (prohibited personnel practices) when they took political affiliation into consideration when hiring and making other personnel decisions."
Nine days later, "TF is told that the Special Counsel has directed the TF not to open or investigate allegations concerning DOJ political hiring practices." Throughout August and September 2007, the TF continued to request permission to investigate these allegations, "arguing the sworn testimony before Congress appears to establish a prima facie case of numerous PPPs."
Finally, in November, the task force was given permission to open a case--but "no other activity or devotion of resources authorized at this time."
Possibly Politically Tainted Prosecution:
The task force opened files concerning prosecution of the former Democratic governor of Alabama, Don Siegelman, and allegations that the prosecution had been pursued following directions from Karl Rove at the White House. But then "TF is informed that the Special Counsel did not authorize the Task Force to investigate these allegations and that do so [sic] is a breach. The Special Counsel requests that this file be closed immediately."
Voter Registration Fraud Case:
Indictments were filed against four individuals associated with a liberal organization, ACORN, for engaging in election fraud. ACORN had reported the fraud itself and had fired the individuals, but a senior Justice official in Washington rushed to file the indictments a few days before the 2006 election, despite clear DOJ policy against bringing such actions right before an election because of the possibility of influencing the outcome.
The task force wrote a memo "outlining the reasons that the Hatch Act case investigating this matter should be opened.” The Hatch Act expressly forbids any Executive Branch official from taking actions that might influence an election. The task force was told they were "not authorized to open up this file." The task force protested strongly:
Because the facts raise the strong possibility of violations of two Hatch Act provisions, the TF requests that a case file be opened into these allegations. OSC is the only agency charged with enforcement of the Hatch Act…it could be perceived that the Office of Special Counsel was abdicating its responsibility to enforce the Hatch Act if we were to take no action in this matter. More importantly, [if the actions were]…an attempt to affect the results of an election, this would constitute one of the most egregious violations of the Hatch Act.
Second Investigation of Lurita Doan:
When Special Counsel Bloch ordered a new investigation of GSA Administrator Lurita Doan be opened, the "TF raised objections to this request because OSC had previously concluded its investigation into Lurita Doan and had referred the matter to the President for disciplinary action. The TF was directed to investigate whether Doan had a larger scheme in place to use agency resources for political purposes."
Bloch ordered the task force to request documents from the Office of the Inspector General at the Department of Homeland Security regarding a 2005 investigation of Doan's husband. The task force objected, saying it would be improper since "Doan was not a federal employee at the time of the DHS OIG investigation." But the task force was ordered to go forward and to particularly request a email message dated May 2005 from Lurita Doan to her husband.
The DHS OIG response was received at OSC in July 2007 but not given to the task force until November. At that point the task force was dismayed to discover that the "DHS OIG investigation is not related in any way to the May 17, 2005 email and questions why DHS produced the investigative file." The task force again two weeks later expressed its concern that the DHS OIG report was "not related to anything that OSC is currently investigating and the allegations in the report fall outside of OSC jurisdiction." The task force also expressed concern that the DHS OIG had provided information that "greatly exceeds, and arguably is unrelated to" the OSC request. The task force renews its recommendation that the case be closed since there is no evidence or information to support the allegations.
The task force was ordered to investigate allegations that White House official Karl Rove had violated the Hatch Act by engaging in unlawful political activity during the 2006 election period. The task force learned that all of Rove's travel had been designated political and thus no official funds had been spent on it. Further, they found that on the one trip where Rove traveled on Air Force One on what had been wrongly attributed to official business, reimbursement had already been made.
Nevertheless, additional requests for information were prepared and sent to the White House regarding Rove's travel. As previously noted, the Rove cases were ordered by Bloch to be combined with the huge all-encompassing OPA case in November 2007.
-- Beverley Lumpkin