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It came about a year too late to do him any good, but the Justice Department has notified ex-Sen. Conrad Burns (R-MT) that he's no longer under investigation for his ties to Jack Abramoff. Burns, you may remember, lost very narrowly to Jon Tester (D) last November, with Burns' Abramoff problem a huge issue in the election.

The feds had been investigating whether Burns helped Abramoff's tribal clients in exchange for tens of thousands in campaign contributions and other goodies. Abramoff himself said that he got whatever he wanted from Burns and that his staffers "pratically" used Abramoff's D.C. restaurant Signatures "as their cafeteria."

Abramoff continues to busily cooperate with investigators from prison. But whatever prosecutors came up with on Burns, they apparently didn't think it would stick in court -- bribery cases, of course, are notoriously hard to make.

Burns, who spent around $300,000 in campaign contributions on defense lawyers, fittingly got a lobbying gig after his forced retirement. And how does he feel about not being under investigation for the first time in more than two years? He says that he feels "so great that it's unbelievable." I'll bet he's "ready to go get knee-walking drunk."

Update: Don't forget that Rep. John Doolittle (R-CA) and ex-Rep. Tom DeLay (R-TX) are still very much on the hook.

The papers take a look at John Durham, the prosecutor Attorney General Michael Mukasey tapped to investigate whether anyone broke any laws by keeping secret and then destroying the CIA's torture tapes, and find that even if he doesn't have the same independence as Patrick Fitzgerald, he's made from the same stuff.

From The Los Angeles Times:

"Think of him as the second coming of Patrick Fitzgerald," said Jeffrey Meyer, a professor at Quinnipiac University law school in Hamden, Conn., who worked alongside Durham as a federal prosecutor for many years. "So far as I could tell, he does not have a political bone in his body. He is nothing but thorough and dogged in the way he pursues cases."


From The Washington Post:

Four friends said they could not recall him losing a case in more than 30 years as a prosecutor, almost all of it spent fighting organized crime and gang violence in Connecticut....

"He's Fitzgerald with a sense of humor," said Hugh O'Keefe, a Connecticut criminal defense lawyer who has known Durham for 20 years.

From The Atlanta Journal-Constitution:

Hans von Spakovsky threw in the towel on New Years Eve, in an e-mail sent out to supporters....

"Today was my last official day as a Commissioner on the Federal Election Commission," he wrote. "The Senate officially adjourned today without acting on my nomination... I wanted to thank everyone for their support over the past two years while I was going through this confirmation battle. All of the telephone calls, emails and notes I received from people were great encouragement for me."

Von Spakovsky attached an endorsement by the Wall Street Journal, though he added that "it did not help in the end in convincing the Democrats to vote to confirm me."


I'll guess he'll just have to intimidate federal employees and work to disenfranchise minorities from outside the government now.

Former House Speaker Dennis Hastert (R-IL) was penalized last year by the FEC for failing to disclose that his campaign fund went into debt for legal expenses related to the Mark Foley (R-FL) investigation. Hastert announced last year that he would retire from the House of Representatives. (Washington Post)

Politicians and lobbyists are already finding ways around the new ethics rules that took effect this year. And some new rules have not been implemented at all because of the battle in the Senate over nominees to the Federal Election Commission. (New York Times)

Senator Bill Nelson (D-FL) has not received replies to his requests from Bush administration officials asking for more information about allegations that female employees working for KBR, a government contractor, have been raped or sexually assaulted in Iraq. (ABC's The Blotter)

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The eight year Constitutional law seminar that is the Bush Administration continues!

Today's lesson: the pocket veto.

Last week, the president claimed to have sunk Congress' defense authorization bill by pocket veto. Now Democrats are saying he can't do that.

We'll start first with the Constitution says, and then go on to what the Bush administration says it says.

Article I, section 7 of the Constitution says that the president must sign or veto legislation passed by Congress within ten days (not counting Sundays). If he signs it, it becomes law. If he vetoes it, then Congress can override his veto with a two-thirds majority in both houses. And if he does not sign or veto it while Congress is in session, it becomes law. But if Congress is not in session and he doesn't sign it, then it neither becomes law nor can Congress override it. The bill is dead. That's a pocket veto.

So on December 28th, the president proclaimed that the defense authorization bill was dead by pocket veto. (For some background on the substance of the dispute -- why Bush doesn't like the bill and Dems' frustration with the fact that the administration didn't raise the objection until after the bill passed -- see here.) Congress will just have to start over. Keep in mind that the bill passed both houses with veto-proof majorities.

But, as Kagro X at Daily Kos first pointed out, there's a problem with that. Though the president said that "adjournment of Congress" allowed him to pocket veto, Congress was not, in fact, in adjournment.

To prevent administration monkey business during the holiday recess, Senate Majority Leader Harry Reid (D-NV) kept the Senate in pro forma session throughout. By keeping the Senate nominally in session (someone shows up for a few minutes every third day), Reid stifled the administration's desire for a bunch of recess appointments.

So now House Speaker Nancy Pelosi (D-CA) is saying that the pocket veto is bunk. From The Hill:

“Congress vigorously rejects any claim that the president has the authority to pocket-veto this legislation, and will treat any bill returned to the Congress as open to an override vote,” said Nadeam Elshami, a spokesman for Pelosi. He said the Speaker is keeping all legislative options on the table.


Now, it's possible that the White House just didn't think this one through. Or maybe they thought no one would call them on it. In any case, the White House has responded with a Constitutional interpretation that seems somewhat improvisational.

True, the Senate was in session, they say. But we sent the president's veto to the House, and they were in recess. So voila! pocket veto!

The White House argues it pocket-vetoed the defense bill on Dec. 28 by sending it back to the House with a message of disapproval. It argues that a pocket veto was possible because the House, where the bill originated, was out of session.

“A pocket veto, as you know, is essentially putting it in your pocket and not taking any action whatsoever. And when Congress — the House is out of session — in this case it’s our view that bill then would not become law,” White House Spokesman Scott Stanzel told reporters Monday.


The Hill gets a take on the White House's tap dancing from a Constitutional scholar at the Library of Congress -- he gives it a resounding thumbs down.

As for what happens from here, it's not clear. If the House moves for an override next week and the White House objects, the whole thing could end up in court. That's probably not something the administration wants to happen. The pocket veto seems to be an executive power which, like executive privilege, is very infrequently tested in court. But with this administration's fervent belief in the executive's power, you never know.

Do we have our first contestant for the Bush Administration's dumbest legal arguments of 2008?

Congress and the Justice Department didn't play together very nice last year. And there may be more of that to come.

For the record, just because Michael Mukasey has ordered a criminal investigation into the CIA's torture tapes, lawmakers want everyone to know that Congress isn't backing down.

That's the word from Senate Intelligence Committee Chairman Jay Rockefeller (D-WV), who says in a statement:

"We... have an obligation to continue our own congressional investigation and that is exactly what we will do.

“Our negotiations with the CIA and DOJ over the scope of our investigation are ongoing. I fully expect their continued cooperation, including relevant testimony and documents, so that the Committee can thoroughly review and publicly report on all actions related to the destruction of the tapes.”


And House intel chairman Silvestre Reyes (D-TX), whose probe has been much more aggressive, says the same:

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A statement just out from House Judiciary Committee Chairman John Conyers (D-MI) hits on Mukasey's decision not to tap Durham as a special counsel:

While I certainly agree that these matters warrant an immediate criminal investigation, it is disappointing that the Attorney General has stepped outside the Justice Department’s own regulations and declined to appoint a more independent special counsel in this matter. Because of this action, the Congress and the American people will be denied – as they were in the Valerie Plame matter – any final report on the investigation.

Equally disappointing is the limited scope of this investigation, which appears limited to the destruction of two tapes. The government needs to scrutinize what other evidence may have been destroyed beyond the two tapes, as well as the underlying allegations of misconduct associated with the interrogations.

The Justice Department’s record over the past seven years of sweeping the administration’s misconduct under the rug has left the American public with little confidence in the Administration’s ability to investigate itself. Nothing less than a special counsel with a full investigative mandate will meet the tests of independence, transparency and completeness. Appointment of a special counsel will allow our nation to begin to restore our credibility and moral standing on these issues.

Michael Mukasey's statement on opening a full-blown criminal investigation of the CIA tapes probe is below.

Interestingly, Durham has not been tapped as a special counsel (like Patrick Fitzgerald (pdf) was) -- rather, because the U.S. attorney from the Eastern District of Virginia recused his office from the probe, Durham will be serving as Acting United States Attorney for the Eastern District of Virginia.

Update: What this means, as Marty Lederman puts it, is that Durham is neither an "outside," nor "special," nor "independent" prosecutor. "Durham will still report to the Deputy Attorney General, who in turn reports to Judge Mukasey."

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The man Michael Mukasey chose to lead the CIA tapes probe is John Durham. Who is John Durham? Well, the short answer is a 30-year veteran prosecutor with some serious experience with tough prosecutions.

We've posted his work experience below, as passed along by the U.S. attorney's office in Connecticut, where Durham serves as the deputy.

As the AP puts it, "Durham has a reputation as one of the nation's most relentless prosecutors. He served as an outside prosecutor overseeing an investigation into the FBI's use of mob informants in Boston and helped send several Connecticut public officials to prison."

Update: From The Washington Post:

Durham is well known in New England legal circles as a tough, publicity-averse prosecutor who has specialized in organized crime cases. Former attorney general Janet Reno named Durham as a special prosecutor to investigate allegations that FBI agents and police officers in Boston had ties to mafia informants. He is a registered Republican, according to Connecticut voter records.

The Boston probe led to the 2002 racketeering conviction of retired FBI agent John J. Connolly Jr., who was the handler for gangster James "Whitey" Bulger, a former FBI informant who is now a fugitive.


Durham's history is below.

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Breaking from the AP:

The Justice Department opened a criminal investigation into the destruction of CIA interrogation videotapes and Attorney General Michael B. Mukasey appointed an outside prosecutor to oversee the case....

"The Department's National Security Division has recommended, and I have concluded, that there is a basis for initiating a criminal investigation of this matter, and I have taken steps to begin that investigation," Mukasey said in a statement released Wednesday.

Mukasey named John Durham, a federal prosecutor in Connecticut, to oversee the case.


Durham is the deputy U.S. attorney in Connecticut, where he worked with Kevin O'Connor, who's currently the acting #3 at the department. We'll have more on him in a second.

Update: The AP doesn't have this quite right. Durham is not an "outside counsel."

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