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I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Monday, October 02, 2006

Hastert's letter to the DOJ advances the cover-up and worsens the scandal

(updated below)

The letter sent by Denny Hastert yesterday to Bush Attorney General Alberto Gonalzes was sent with the intent of stemming the tide of this Foley cover-up scandal by enabling Hastert and friends to hide behind the fact that there is now a pending DOJ criminal investigation which they requested. But Hastert's letter should have the precise opposite effect. The letter itself is actually one of the most incriminating and scandalous actions to be revealed in this story yet, and demonstrates just how deeply corrupt and amoral the trappings of one-party rule have made the Republicans in Washington.

Whenever someone exposes wrongdoing on the part of Beltway Republicans, their reaction has been to attack and threaten those who expose the wrongdoing. When Treasury Secretary Paul O'Neill published a book with Ron Suskind which revealed that the administration was planning to attack Iraq long before 9/11, they began immediately threatening O'Neill with a criminal investigation over documents they claimed he improperly took. When The New York Times exposed the President's illegal eavesdropping, they threatened a criminal investigation of the reporters and editors who published the story. And now Hastert is attempting to depict as the real criminals those who exposed the conduct of the House GOP leaders in the Foley scandal.

The letter sent by Hastert to the DOJ yesterday does not ask for an investigation into the issue at the heart of this scandal -- namely, whether GOP House leaders failed to take action against Foley despite having ample reason to suspect strongly, if not fully know about, Foley's predatory behavior with underage pages. To the contrary, Hastert's letter has two overriding and clear purposes: (1) to exclude this wrongdoing engaged in by Hastert and the GOP House leadership from the DOJ investigation; and (2) to demand instead a criminal investigation into the parties responsible for the disclosure of the Foley story generally and the wrongdoing of Hastert and company specifically.

For that reason, Hastert's letter is plainly designed to bolster the cover-up, to intimidate those who have revealed information about this scandal, and to deter those who might come forward with more information. The letter worsens the scandal because it itself is corrupt.

The central premise of Hastert's letter is that "there are two different and distinct communications" between Foley and the pages: (1) the emails Foley sent to the page which caused the page to object to them as "sick" and caused his parents to complain -- emails which Hastert outrageously continues to dismiss as merely "over friendly" and "not sexual in nature"; and (2) the "sexually explicit instant messages" Foley exchanged with pages. Contrary to Hastert's initial false denials, it is now beyond dispute that Hastert was fully informed months ago about category (1) -- the emails -- as well as about the reaction of the page and his parents. But Hastert claims not to have been aware of category (2) (the IMs) until this week.

For that reason, Hastert's letter seeks a criminal investigation only with regard to individuals who had specific knowledge of the IMs. But it does not ask for an investigation -- and, in fact, would expressly exclude an investigation -- into the actions or inaction of anyone (such as Hastert and several other key GOP Congressmen) who knew about the e-mails sent by Foley along with other information strongly suggesting that Foley was a predator. Thus, Hastert has overtly excluded from his request for an DOJ investigation the key issue at the heart of this scandal -- namely, whether House GOP leaders had reason to suspect that Foley was a predator and yet failed to investigate or take action.

The premise of Hastert's letter is that the only issue worth investigating is whether someone specifically knew of the more explicit IMs, and that anyone who did not know of those IMs by definition has done nothing wrong, even if -- as is true for Hastert -- there was ample other information they knew of regarding Foley's conduct. This is how Hastert defines what ought to be investigated (emphasis added):

Unlike the first communication, the second communication was a set of instant messages that contained sexually explicit statements and were reportedly generated three years ago. Last week, ABC News first reported these sexually explicit instant messages which led to Representative Foley's resignation. These sexually explicit communications warrant a criminal referral in two respects.

Hastert has defined the relevant issues in such a way as to ensure that he and his House allies would be excluded from the investigation just as long as they managed to avoid learning about the IMs specifically.

But the scandal here is that Hastert and friends deliberately avoided investigating the glaring signs that Foley was sexually pursuing pages. If Hastert avoided learning about the IMs, it is because he and his House allies purposely chose to look the other way. Hastert's letter seeks to reward himself for that failure by proclaiming from the start that anyone who did not discover the IMs should be deemed from the beginning to have done nothing wrong -- even if they did not learn of the IMs because they avoided looking into this matter, and even if they had ample other reason to suspect that Foley was a predator but did nothing.

Hastert is one of the key figures at the center of this scandal. Why would anyone think that he of all people can define the terms of what the investigation ought to include? And who is going to let him get away with defining the issues here with the express intent of excluding himself and his allies and their core wrongdoing from the investigation? And given that it is the President's closest and most loyal political allies whose conduct is at the heart of this scandal, is anyone really going to trust Alberto Gonzales' DOJ to conduct a real investigation or play along with the charade that everything is taken care of now that Gonzales is on the case and that there is therefore no reason for anyone to do anything futher?

It is critical to keep in mind what this scandal is about and what it is not about. It is true that there are legal and criminal aspects to this scandal, but legal issues here are secondary at most. This is not a case involving complex federal criminal statutes or debates over whether enough evidence can be compiled demonstrating that GOP House leaders broke the law. Instead, the issue is one of political corruption and lack of character -- the fact that the GOP House leadership is so devoted to preservation of its own power that they are willing to do anything, no matter how corrupt or repugnant, to cling to that power.

The behavior of the GOP House leadership here is reprehensible and intolerable even if they are able to avoid criminal prosecution for it. That point, after all, was supposedly the centerpiece of Republican rule in Washington, according to the President:

Let me say a few words about important values we must demonstrate while all of us serve in government. First, we must always maintain the highest ethical standards. We must always ask ourself (sic) not only what is legal, but what is right. There is no goal of government worth accomplishing if it cannot be accomplished with integrity.

Even worse than Hastert's deliberate exclusion of the real issue here from the scope of the investigation he requested is the real purpose of his letter -- which is to trigger a criminal investigation and prosecution by the Bush-controlled Justice Department of those in the media and elsewhere who revealed to the American public that the GOP House leadership was protecting a predator in their midst. This is what Hastert requested the DOJ investigate:

Therefore, I also request that the Department undertake an investigation into who had specific knowledge of the content of any sexually explicit communications between Mr. Foley and any former or current House pages and what actions such individuals took, if any, to provide them to law enforcement. I request that the scope of your investigation include any and all individuals who may have been aware of this matter-be they Members of Congress, employees of the House of Representatives, or anyone outside the Congress.

While excluding himself from the investigation, Hastert wants it known that anyone who had knowledge of Foley's IM's -- in the media, watchdog groups, or even other pages and their families -- will be subject to this DOJ investigation if they failed to come forward earlier. With the issuance of Hastert's letter, everyone with additional information about Foley's activities will think twice, at least, about coming forward now, which is a central reason why Hastert wrote and then released this letter.

As this reader email sent to TPM (and to me) astutely pointed out, Hastert's letter is plainly designed to advance the original cover-up -- not to get to the bottom of what happened here -- by: (a) excluding the conduct of Hastert and his allies from the DOJ investigation; (b) enabling him to block a real investigation by the Ethics Committee or an outside investigator by claiming that the DOJ is now investigating; (c) triggering a "lock-down" of information on the Hill by enabling or forcing members and staffers not to speak further about a "pending DOJ investigation"; (d) intimidating those who exposed Hastert and his allies by triggering a criminal prosecution against them; (e) transforming the issue from Hastert and company's reckless and reprehensible cover-up to whether federal criminal laws were violated; and (f) deterring and intimidating those who might come forth with more information about Foley by creating the fear that they, too, will now be investigated by the DOJ.

Political leaders -- especially ones whose party controls all facets of the government -- have the ability to engage in wrongdoing and then use the power of their office to conceal that wrongdoing. That is why -- especially when we live under one-party rule -- we critically depend upon watchdogs, whistle-blowers and the media to expose that wrongdoing. That is the only line of defense the public has to prevent political leaders from concealing their misconduct. Our system of government depends on exposure of that sort. We simply cannot tolerate political officials who get caught engaging in wrongdoing thereafter using the power of their offices to intimidate, threaten and prosecute those who expose their misconduct or disclose politically embarrassing information about them.

But that is exactly what Hastert is trying to accomplish with his letter. It is truly scandalous in itself that having been caught ignoring a predator in his party for purely political reasons, Hastert's first reaction is to try to induce Alberto Gonazles's Justice Department to use its vast law enforcement powers to pursue those who exposed him, thereby intimidating others who might come forward with more information. That is thuggish behavior of the worst kind, but it is what the administration and their allies have done time and again against anyone in the media or elsewhere who acts to expose their misconduct.

The media should not be deceived into thinking that Hastert's letter is some sort of effort to have the Justice Department find out what happened here. The intent is the opposite. Hastert's letter should be understood and reported as what it is -- an effort to advance his cover-up and prevent his actions from undergoing real scrutiny. That is what corrupt political leaders instinctively do: they block examination of their conduct and intimidate those who would expose their wrongdoing. That is what the Bush administration and their allies have been doing for the last five years over and over and over and it is plainly what Hastert is trying to do here.

UPDATE: Credit to Nancy Pelosi, who sees exactly what Hastert is up to and is emphatically pointing it out, just as she (and the media) should be doing: "Jennifer Crider, a spokeswoman for Ms. Pelosi, said Mr. Hastert seemed 'more concerned by who revealed the Republican leadership’s cover-up of Mr. Foley’s Internet stalking” than about the pages.'"

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