Wednesday, March 14, 2007

Busy with finals but...

I was curious what people's thoughts were on the U.S. Attorney controversy. Seems like a pretty interesting convergence of law, professional and political issues and the blog's never been short on those.


Orrin Johnson said...

Stupid MPRE, finals, and 1L competition... Doesn't this law school know we need to write about US attorneys?!? GOL!

I actually feel a little guilty that I haven't posted something yet - look for my $0.02 in the next couple of days...

PubliusRex said...

US Attorney is a political position and they serve at the pleasure of the president. I have no problem with them being fired for not being "loyal" or for not following through on constitutionally offered executive policies. Any other condition tends to make government unaacountable to the electorate - e.g. the SEC and all the other independent agencies.

That said, obfuscating why they were fired is unacceptable - if that is going on, it should stop. The public has a right to know, as a general matter.

ModMilq said...

Charles Grace, former US attorney said it best, "The sanctity of that position, in terms of that position being immune from any kind of pressure from the administration or Congress, has been the hallmark of the U.S. attorney process. It's been the hallmark of the federal system of justice...If what is being alleged proves to be accurate, it's scary — because it removes that buffer."

I think while on a technical level what was done may have been legal, it was egregiously unethical. Shame on Alberto Gonzales!

Jason Sykes said...

I agree that they are political appointees and serve at the pleasure of POTUS.

However, they're also nominally responsible for representing the U.S.of A. in our system of justice. So, I'm not comfortable with the idea of them being fired for refusing to prosecute a case they thought was weak, or worse, prosecuting a case that the Administration wish they hadn't.

The fact that the Administration then gave disinformation about the nature of the firings is disturbing...but also disappointingly unsurprising to me. The fact that this White House projects the attitude that it is above leveling with the people is one of the things that troubles me most about Bush.

Juvenal said...

This is what happens when you place cronies in important and sensitive government positions. Al Gonzales is just not up to the job. The left hated Ashcroft, but there was no doubt that he was eminently qualified to be AG and that he was a strong, independent, accomplished lawyer & executive. All that Al Gonzales has done in his professional career is be a Bush family sidekick. He's inarticulate and unimpressive, and also appears to be a liar (and not a very good one).

The Bushies keep pointing to the fact that Clinton fired all 93 US attorneys when he came into office. It has become fairly common practice for Presidents to clean house as soon as they enter office and replace all US attorneys (Bush did it as well) -- but to replace US attorneys in mid-stream is an altogether different matter. If they're incompetent, by all means fire them. If they're frustrating the legitimate policy and law enforcement goals of the administration, fire them instantly. Firing them because they're either not prosecuting Democrats or prosecuting Republicans (and that appears to be the motivation), and then coming up with some lame ass excuse that you then have to concede is a sham is unethical and incompetent. If you're going to attempt to politicize the US attorney's office, at least do it with some semblance of competence ...

Orrin Johnson said...

It's a political office, just like any other executive function. The US Attorneys are a key part of the "executing" of the laws. I'm wary of Congressional interference in that sphere, and so is the Constitution. If we just admitted that, we'd be better off. I WANT these executive offices to be political. I WANT the head of the EPA, the SECDEF, the AG and his deputies, etc. to be seen as a direct arm of the president, so people will think about administrative agency bulk when they vote.

The myth of "non-political" or even sillier, "sanctity," only serves to insulate these actors and allows both branches to tut-tut without actually being held to account for either the overreaching laws they pass or the way they execute those laws. The buck stops nowhere, having been sent on a ride around a Mobius Strip. "Sanctity" my [left foot]. Sacred cows in government are never a good thing.

If Congress wanted to limit the power of the nefarious Bush Administration and his crony lawyers, they could go a long, long way by limiting the reach of federal laws and stepping back a bit from the state sovereignty they've usurped. THAT'S their check, not this endless and absurd political kabuki theater of hearings and posturing and feigned outrage.

I still have some more research to do on this. I don't trust the media accounts, the White House's ability to defend themselves, the "shocked - SHOCKED!" Democrats, etc.

Is Bush bulldozing forward, stupidly disregarding the fact that while it's admirable to not lead by polls, PR still matters (a lot)? Are the Dems overreaching, overconflating, and overhyping this as the Death of Democracy for political reasons? Did the sun rise in the east this morning?

So far, those are about the only reliable conclusion I've been able to draw.

Juvenal said...

Orrin, I agree that these are political offices, but the U.S. attorneys surely have a responsibility to be even handed in their prosecutions don't they? Sure, administration policy can dictate that they de-emphasize drug prosecutions and focus on, say election fraud; but it would completely undermine the system if the administration could direct U.S. attorneys to concentrate on Democratic wrong-doing and ignore Republican crimes, based on the rationale that it is a "political" office, therefore its all good? They may be political appointees, but they play an important non-partisan role in law enforcement, and if that role can be undermined merely because "they serve at the pleasure of the president" then we risk having a system of politicized and partisan law-enforcement -- the hallmark of a banana republic.

What makes these firings even more troublesome is the amendments to the Patriot Act which allow the administration to fill U.S. Attorney vacancies without the advice and consent of the Senate. The whole thing smells fishy -- this administration pushed for those powers because "national security" demanded it. No one can argue that the firing of these attorneys is prompted by national security. Will the administration use its powers under the Patriot Act to bypass the Senate and appoint replacements unilaterally? I think they might have already with the U.S. attorney in Arkansas, but I'm not sure ...

Orrin Johnson said...

Administrative agencies have important non-political responsibilities, and the power to restrict liberty to profound degrees. Yet we accept those are political. And we should. Because "non-political" too often means "outside of the reach of the voters."

They have a statutory obligation to be even-handed in their prosecutions. If there's evidence those laws have been violated, burn them all, from Bush on down. But so far everyone seems to agree that no laws were broken. This matter clearly was handled poorly (not going to stand and defend Gonzales for his deftness), but so far there just isn't any evidence that I've seen to support the Democratic image of Bush sending out US attorneys as SS-esque GOP operatives with indictment power.

My problem is that I just don't see the political witch-hunts in this. The fact of the matter is that most of the voter fraud allegations with any substance in 2004 and 2006 came from activists promoting Democrats. I don't take McKay seriously when he says there wasn't enough to warrant further investigation here - there absolutely was, far beyond the very narrow scope of the gubernatorial election court case. And that's just the example I know about. The facts are just WAAAAAAAAAAAAAAY too sparse on the ground, and since political hysteria is usually inversely proportional to the seriousness of the matter, I'm inclined not to join the wailing and gnashing of teeth just yet.

As far as the Patriot Act amendments, 535 Congressmen ALL had a chance to review those changes before voting on it. And that amendment came from Arlen Specter's office (who then later claims not to have known about it), not from the Bush proposals. And Specter is hardly a Bush stooge. I don't want to go down the structural road of presuming Congress DIDN'T mean what they said when they passed legislation. Once again, maybe if they didn't insist on making the federal government so huge that 535 people (most of whom are lawyers, and each with dozens of loyal staffers) can't keep up with all the constantly shifting statutory landscape THEY shift around, then they would have some credibility. But to make this some Bushian plot of which all of those poor, honest Dems were once again innocent victims is simply silly.

Jason Sykes said...

I enjoy the use of the term "Bushian plot" it has potential.

Jason Sykes said...

I think the Patriot Act bogeyman is getting old. Maybe there was some merit to it back when the original was enacted b/c legislators could credibly claim they acted in a blind panic. (Sigh, ladies and gentlemen, your United States Congress...)

However, there was nothing rushed, unexamined or uncontentious about the renewal. In fact, it and the campaign finance reform act are the two most well-debated pieces of legislation Congress has considered (and then passed) in the last decade.

It's just not credible to me that legislators did not understand what they were doing when they passed this; and if they didn't then that's a condemnation of them, not the executive.

Furthermore, if this provision is some awful evisceration of our system of checks and balances why don't Democrats act immediately to repeal it? I'm not talking about the whole Patriot Act mind you, just this one provision which has caused so much angst. The silence of their actions drowns out the wail of their rhetoric on this one.

Regarding how I come out on the broader questions raised by Orrin and Juvenal:
Again, I agree, these U.S.Attys are political appointees who SATPOTPOTUS.

THAT SAID, I do think it is being a little too glib to say we should rejoice when their hiring and firing becomes (purely) political.

If they're refusing to carry out policy directives, POTUS can/should/must kick their asses to the curb. But firing them because they're prosecuting your political allies or not prosecuting your political enemies is as unacceptable as it is legal. (And I agree, no laws were broken here. But it's pretty sad when that's the best justification someone can offer for their actions.)

Given that it's not illegal, that it *is* a matter of politics, I have no problem with Congress/the media calling AG AG (btw, do you think that's how he signs his e-mails? I know I would!) to the carpet. I'm glad there were Congressional hearings, I'm glad there was a forced short I'm glad for the poltical theater, be it kabuki, operatic or even musical in nature. (Note to self: Cancel roadtrip, spend rest of Spring Break in FedSoc office writing Congress: The Musical! be sure to stock up on exclamation points...) I agree that reducing the reach of federal laws would be a more effective check, but it's simply untrue that it's the only one Congress has when dealing with a political problem in our modern media savvy democracy.

I haven't heard even the most hysterical Democrat suggest that the Administration didn't have the power to do this, they're just demanding someone be held accountable for the use of that power. And I've got no problem with that. Although, as usual, I wish'd they'd turn down the volume and tune up their arguments.

Juvenal said...

I'm not bringing up the "Patriot Act" as a bogeyman. I could n't care if that provision were in the blighted farm subsidy bill -- I still think it should not exist, and its existence raises the stakes in this particular round of firings . The existence of this provision makes the firing and replacement of U.S. Attorneys more open to partisan manipulation. Sure Congress acquiesced in passing that provision, but that does not absolve the President and the executive branch from having to operate in good faith. If he appoints US Attorneys to fill those spots without the advise and consent of the Senate, it will be a clear violation of the spirit of that provision, if not a violation of the letter of the law.

Was n't it Al Gore, who after collecting scads of cash from Buddhist monks and other overseas sources, claimed that he had technically violated no law? Its a shame that we Republicans have to fall back on the tired nostrum of "No laws were broken" to defend behaviour that undermines our system of government.

If there was nothing sinister about the firings, surely they would have an explanation? If they were fired merely because they were n't seen to be "loyal Bushies"? Surely Gonzales could have said so? The President is entitled to have the higher reaches of the executive branch staffed with loyalists (with of course, the advice and consent of the Senate, which this provision allows the President to dispense with). What raises a stink in this particular firing is that it seems to be motivated by a desire to punish individual U.S. attorneys who chose to either prosecute Republicans or not investigate Democrats.

Orrin Johnson said...

I'm not defending Bush with the "it's not TECHNICALLY illegal" bit. I'm as offended by "technically legal" but still corrupt practices as you are. What I'm saying is IF he used the USAs the way people are accusing him of, and IF they were fired for not going after their Rove-selected targets by party affiliation, then it would seem clear that several federal political corruption laws have been violated. That's my point. In order for this to have been sinister, laws would have been broken. That everyone seems to agree they weren't suggests that this ISN'T firing attorneys for not going along with politically motivated prosecutions.

(And just to be fair, I'm quite certain Gore DID break the law with the Chinese fund raising.)

There's far more wailings, assumptions, and gnashings of teeth here than facts. The media has shown far too much willingness to make Bush ham-fisted-ness or stupidity into sinister corruption for me to buy this story as it's being told here. The McKay protests of "doing everything he could" in the face of the King County voting problems don't exactly make me side with the attorneys.

I could be wrong, here. Maybe it's true. I'm not declaring it false. But there CERTAINLY aren't the facts to declare it true, either.

I'm not saying this is Bush's finest hour - far from it. But we're not on the brink of banana republicanism, either. Not even close.

Jason, I take your point about the hearings. I don't object to them per se (especially regarding accusations of corruption), I object to the non-serious nature of modern Congressional hearing - that is to say hearings which uncover little or nothing, but make GREAT public preening, strutting, and sanctimonious "harumphing" outlets.

I have to say, though - if it ousts Gonzales, it won't have been all bad.

Orrin Johnson said...

Oh, and that provision of the patriot act has already been repealed, with no objection from either DoJ or the Bush Administration. I happen to think that's a good thing. But blaming Bush for a congressional action, however unwise, just isn't cricket.

Juvenal said...

Not cricket??! I'm speechless.

When did they repeal that provision? Bloody good thing ...

PubliusRex said...

It seems to me that whether it's "technically legal" or not is critical. Any crowing about that which is "technically legal" is merely political. As long as Bush and his duly confirmed executive officers obey the law, then this is nothing more than a political flap.

It's profoundly dishonest of the democrats to portray as illegal that which is merely a political spat.

If "political prosecutions" (a term as difficult to cabin with real language as "organized crime")
are not illegal (a purely legal question) then there is no non-political reason that the executive branch should refrain from them. Congress is of course free to change the law by proscribing political prosecutions if they'd like; a change which would undoubtedly favor conservatives in practice, at least in light of the disparate treatment of Scooter Libby and Tom Delay in contrast with Sandy Berger and William Jefferson.

Political prosecutions and not "doing justice" may be a professional responsibility problem, but that's for the bar associations to work out.

PubliusRex said...

Oh and the position of US Attorney is neither sanctified nor independent. The idea of government, floating free from politics and popular will smacks of authoritarian elitism.

ModMilq said...

Okay, okay, sorry I cut and paste it! I was being lazy and it seemed like a good quote, so sue me.

My question is how are y'all defining politics here? If you mean that the US attorneys must adhere to policies adopted by the Bush administration, then yes, it is appropriate for "politics" to be in the mix. But if you mean partisan power plays, then there is no place for them in the US attorney's office. It is true that they are supposed to execute the law, but that doesn't mean they can ignore it (in the case of choosing not to try Republicans even though the law requires it) or create violations where none exist (to embarrass the other party).

I agree that we wil have to wait for more facts to come out before we know for certain whether anything stinks here.

Finally, PlubiusRex, I am not sure how government floating free from politics smacks of authoritarian elitism. Isn't there a model (I think it is called "trustee") in political science where the elected uses his best judgment, assuming that is why people elected him, to carry out his office. When it is time for reelection, the electorate decides to retain or get rid of him. I think most people expect their hired representatives to rise above partisan politics and to do what is best for the electorate and not his or her political party.

Orrin Johnson said...

MM, government IS politics. There is no separation or difference. When "politics" is used as a pejoritive, it's usually an attempt to shame the other side into stopping their arguments against whatever you're doing. Politics is the way a free people determine their policy! And when ANY government official claims to be "rising above politics," what that REALLY means is that he's "rising above" accountability. (That includes the judiciary, by the way, which in order to do its job MUST be insulated from the voters by a degree. The same is NOT true of the heads of the EPA, SEC, or DoJ.)

What Republicans are they ignoring? These accusations are nearing the absurdity of global warming claims. Duke Cunningham is in prison. William Jefferson is on the Homeland Security Committee. King County Elections are still either too stupid or too corrupt to fix their voter fraud problems. Patrick Fitzgerald, leader of one of the most nakedly partisan investigations in recent history AGAINST the Bush administration, WAS NOT ASKED TO STEP DOWN. You must stop taking partisan Democrats and jilted US Attys at their word on this.

This is only an issue because AG-AG (which is a GREAT designator, by the way) is too #@*&^ stupid to have recognized the PR fodder this would be, or to have adequately documented the real and from all the evidence we seem to have justified reasons for canning these guys, and then obsfucated about White House contacts for no stinkin' reason, except that he immediately went into CYA mode because he knew he hadn't done a good job with said documentation. It drives me insane. He should be fired immediately, and replaced with someone Bush has never met before.