Category Archives: criminal justice

“Republican Holy Office of the Inquisition”

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Sidney Blumenthal:

In the U.S. attorneys scandal, Gonzales was an active though second-level perpetrator. While he gave orders, he also took orders. Just as his chief of staff, Kyle Sampson, has resigned as a fall guy, so Gonzales would be yet another fall guy if he were to resign. He was assigned responsibility for the purge of U.S. attorneys but did not conceive it. The plot to transform the U.S. attorneys and ipso facto the federal criminal justice system into the Republican Holy Office of the Inquisition had its origin in Karl Rove’s fertile mind.

There’s more evidence of political manipulation of justice this morning. Carol D. Leonnig writes for the Washington Post:

The leader of the Justice Department team that prosecuted a landmark lawsuit against tobacco companies said yesterday that Bush administration political appointees repeatedly ordered her to take steps that weakened the government’s racketeering case.

Sharon Y. Eubanks said Bush loyalists in Attorney General Alberto R. Gonzales’s office began micromanaging the team’s strategy in the final weeks of the 2005 trial, to the detriment of the government’s claim that the industry had conspired to lie to U.S. smokers.

She said a supervisor demanded that she and her trial team drop recommendations that tobacco executives be removed from their corporate positions as a possible penalty. He and two others instructed her to tell key witnesses to change their testimony. And they ordered Eubanks to read verbatim a closing argument they had rewritten for her, she said.

“The political people were pushing the buttons and ordering us to say what we said,” Eubanks said. “And because of that, we failed to zealously represent the interests of the American public.”

If you don’t remember the tobacco case, here’s a June 8, 2005 article by Ms. Leonnig for background. She wrote then,

After eight months of courtroom argument, Justice Department lawyers abruptly upset a landmark civil racketeering case against the tobacco industry yesterday by asking for less than 8 percent of the expected penalty.

As he concluded closing arguments in the six-year-old lawsuit, Justice Department lawyer Stephen D. Brody shocked tobacco company representatives and anti-tobacco activists by announcing that the government will not seek the $130 billion that a government expert had testified was necessary to fund smoking-cessation programs. Instead, Brody said, the Justice Department will ask tobacco companies to pay $10 billion over five years to help millions of Americans quit smoking.

Steve Soto remarked (June 7, 2005):

Well, all those campaign contributions taken by Bush/Cheney (nearly $260,000 in 2000 and 2004) and the GOP from the tobacco industry over the years finally bought a $120 billion payday for Big Tobacco when the Alberto Gonzales Justice Department shocked the industry and anti-smoking advocates alike today by scuttling the government’s own litigation.

Remember when I said of the U.S. Attorney scandal, “this is huge“? If clear ties to President Bush are established, this issue has the potential of putting impeachment back on Nancy Pelosi’s to-do list.

Back to today’s article by Ms. Leonnig:

Yesterday was the first time that any of the government lawyers on the case spoke at length publicly about what they considered high-level interference by Justice officials.

Eubanks, who retired from Justice in December 2005, said she is coming forward now because she is concerned about what she called the “overwhelming politicization” of the department demonstrated by the controversy over the firing of eight U.S. attorneys. Lawyers from Justice’s civil rights division have made similar claims about being overruled by supervisors in the past.

Pay close attention to this part:

Eubanks said Congress should not limit its investigation to the dismissal of the U.S. attorneys.

“Political interference is happening at Justice across the department,” she said. “When decisions are made now in the Bush attorney general’s office, politics is the primary consideration. . . . The rule of law goes out the window.”

In its defense, the Justice Department explains it conducted its own internal investigation and cleared itself of wrongdoing. The JD also says the decision to pull back on the case was vindicated last year when a U.S. district judge said “she could not order the monetary penalty proposed by the government.” So they have an excuse for reducing the amount of damages sought. But changing testimony? Weakening the case?

The political appointees who allegedly interfered with the prosecution were “then-Associate Attorney General Robert D. McCallum, then-Assistant Attorney General Peter Keisler and Keisler’s deputy at the time, Dan Meron.” McCallum is now the U.S. ambassador to Australia

The Clinton Justice Department brought the unprecedented civil suit against the country’s five largest tobacco companies in 1999. President Bush disparaged the tobacco case while campaigning in 2000. After Bush took office, some officials expressed initial doubts about the government’s ability to fund the prosecution, Justice’s largest.

Eubanks said McCallum, Keisler and Meron largely ignored the case until it became clear that the government might win. She recalled that “things began to get really tense” after McCallum read news reports in April 2005 that one government expert, professor Max H. Bazerman of Harvard Business School, would argue that tobacco officials who engaged in fraud could be removed from their corporate posts. Eubanks said she received an angry call from McCallum on the day the news broke.

“How could you put that in there?” she recalled him saying. “We’re not going to be pursuing that.”

Afterward, McCallum, Keisler and Meron told Eubanks to approach other witnesses about softening their testimony, Eubanks said.

Yesterday Bob Barr, of all people, appeared on CNN blasting the Bush Administration’s apparent interference with the justice system. From Think Progress, which has the video:

Barr blasted the White House, saying “the integrity of the Department of Justice is being used as a political football by the administration to prove who’s the toughest hombre in all this.” Rather than fighting accountability, Barr said, “the administration really ought to be going out of its way to do what prior administrations have done, such as the Bush 1 administration and Reagan administrations, and that is take whatever steps are necessary to assure the American people that the integrity of our justice system has not been compromised.”

Last year Barr left the GOP to join the Libertarian Party. One wonders what the Bushies/GOP did to him to piss him off.

This Is Huge

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A White House document dump has provided new revelations about the U.S. Attorney purge. And the biggest revelation — although not a surprising one — is that the idea to fire U.S. Attorneys and replace them with politically compliant toadies originated in the White House.

I’m piecing together two news stories, one by David Johnston and Eric Lipton in today’s New York Times, and the other by Dan Eggen and John Solomon in today’s Washington Post. The story thus far:

In early 2005, White House legal counsel Harriet Miers asked D. Kyle Sampson, a justice department official, if it would be feasible to fire and replace all 93 U.S. attorneys. It appears the White House was unhappy with the attorneys because Republicans were alleging widespread voter fraud on the part of Democrats, and the attorneys were unwilling to bring indictments against the Democrats, most probably because the allegations were a fantasy. (Josh Marshall provides an archive of his posts on the voter fraud allegations going back to 2001.)

However, as Johnston and Lipton note, the documentation isn’t clear if the voter fraud issue was the real or only reason.

The documents did not provide a clear motive for the firings. Some suggested that department officials were dissatisfied with specific prosecutors, but none cited aggressive public corruption inquiries or failure to pursue voter fraud cases as an explicit reason to remove them.

As has been widely noted in the recent past, the pattern suggests that the White House and the Republican Party generally have been using the Justice Department as part of their election campaign process. In other words, Karl and Co. have been turning our criminal justice system into a Republican Party machine.

Sampson — who resigned yesterday, btw — replied to Miers that filling that many jobs at once would be too big a job. (The Washington Post reports that Attorney General Alberto Gonzales said the same thing at the time.) Instead, Miers and Sampson began working together on a select list of attorneys to replace. As they did this, Karl Rove and other White House officials helpfully relayed the complaints they were getting from Republican officials about the attorneys’ failure to indict Democrats on voter fraud.

Eggen and Solomon, WaPo (emphasis added):

The e-mails [between Miers and Sampson] show that Rove was interested in the appointment of a former aide, Tim Griffin, as an Arkansas prosecutor. Sampson wrote in one that “getting him appointed was important to Harriet, Karl, etc.”

Sampson sent an e-mail to Miers in March 2005 that ranked all 93 U.S. attorneys. Strong performers “exhibited loyalty” to the administration; low performers were “weak U.S. attorneys who have been ineffectual managers and prosecutors, chafed against Administration initiatives, etc.” A third group merited no opinion.

In January 2006, Sampson sent a first list of attorneys to be fired to the White House. Four of the attorneys who would be fired were on this list: Chiara, Cummins, Lam and Ryan (the final list is here). This list also suggested Tim Griffin be one of the replacements.

Eggen and Solomon, WaPo:

In September, Sampson produced another list of firing candidates, telling the White House that Cummins was “in the process of being pushed out” and providing the names of eight others whom “we should consider pushing out.” Five on that list were fired in December; the others were spared. …

… Sampson also strongly urged bypassing Congress in naming replacements, using a little-known power slipped into the renewal of the USA Patriot Act in March 2006 that allows the attorney general to name interim replacements without Senate confirmation.

“I am only in favor of executing on a plan to push some USAs out if we really are ready and willing to put in the time necessary to select candidates and get them appointed,” Sampson wrote in a Sept. 17 memo to Miers. “It will be counterproductive to DOJ operations if we push USAs out and then don’t have replacements ready to roll immediately.

“I strongly recommend that as a matter of administration, we utilize the new statutory provisions that authorize the AG to make USA appointments,” he wrote.

By avoiding Senate confirmation, Sampson added, “we can give far less deference to home state senators and thereby get 1.) our preferred person appointed and 2.) do it far faster and more efficiently at less political costs to the White House.”

[Update: See also Think Progress.]

Note that the Patriot Act provision came into being in March 2006, about a year after Miers and Sampson began work on their list. Coincidence? Not a chance.

Notice this little detail, from Eggen and Solomon:

Iglesias, the New Mexico prosecutor, was not on that list. Justice officials said Sampson added him in October, based in part on complaints from Sen. Pete V. Domenici and other New Mexico Republicans that he was not prosecuting enough voter-fraud cases.

You may remember that in October 2006 — shortly before the elections — Domenici had called U.S. attorney David Iglesias and asked him about the status of an investigation into a Democratic state senator. Domenici also spoke to President Bush. Then Bush spoke to Gonzales “to pass along concerns by Republicans that some prosecutors were not aggressively addressing voter fraud,” Johnston and Lipton write. Thus Iglesias was added to the purge list, even though he had received a “strong performer” rating from Miers and Sampson in the earlier stages of their list-making.

A White House spokeswoman insisted that the President did not call for the removal of any specific attorney. Nor did he know that Miers, Sampson, and Rove had been drawing up a list already. (Bush never seems to know anything that’s going on under his nose, does he? I find it hard to believe that Bush didn’t at least mention Iglesias to Sampson.)

A few weeks after the conversation between Bush and Gonzales, the Justice Department forced out seven prosecutors.

Johnston and Lipton, NY Times:

On Dec. 4, 2006, three days before the dismissals, Mr. Sampson sent an e-mail message to the White House with a copy to Ms. Miers outlining plans to carry out the firings

“We would like to execute this on Thursday, Dec. 7,” Mr. Sampson wrote. Because some United States attorneys were still in Washington attending a conference, he planned to postpone telling them they were being fired. He wrote, “We want to wait until they are back home and dispersed to reduce chatter.”

Eggen and Solomon, WaPo:

On the day of the Dec. 7 firings, Miers’s deputy, William Kelley, wrote that Domenici’s chief of staff “is happy as a clam” about Iglesias.

A week later, Sampson wrote: “Domenici is going to send over names tomorrow (not even waiting for Iglesias’s body to cool).”

Domenici is so busted.

E-mails show that Justice officials discussed bypassing the two Democratic senators in Arkansas, who normally would have had input into the appointment, as early as last August. By mid-December, Sampson was suggesting that Gonzales exercise his newfound appointment authority to put Griffin in place until the end of Bush’s term.

Griffin’s appointment and his connection to Karl Rove was reported in Arkansas newspapers in mid-December. This was one of our first clues that something screwy was going on regarding the U.S. attorneys.

Miers resigned as White House counsel less than three weeks later, in early January.

As for D. Kyle Sampson, in a sidebar story the New York Times reports that he had been using his post as chief of staff to the attorney general to get named U.S. attorney in Utah, his home state, even though he had never worked as a full-time prosecutor. The White House and Justice Department backed Sampson, but Senator Orrin Hatch wanted Brett Tolman, “a one-time Utah federal prosecutor who had spent the previous three years working on antiterrorism issues for the Judiciary Committee staff.”

This suggests to me that Orrin Hatch has known about some of these shenanigans for some time. But let’s go on …

This put Mr. Sampson in an unusual position. As Mr. Gonzales’s chief of staff, he was fielding calls and letters from Mr. Hatch’s office, even though he was vying for the job that Mr. Hatch was writing about, two former officials from Mr. Hatch’s office said. That made at least some Senate officials uncomfortable.

“It was a little like the fox watching the hen house,” said one former Senate staff member, who asked not to be named because he now works in a different job.

Mr. Sampson did not respond to phone calls seeking comment.

Mr. Hatch finally made a personal appeal to Mr. Gonzales to drop his bid to nominate Mr. Sampson. After a four-month delay, President Bush nominated Mr. Sampson’s rival for the job last June.

Sampson — did I mention he resigned yesterday? — is a religious conservative (a Mormon) who “told the Brigham Young University news service that he admired Mr. Bush because the president recognized that politics and religious beliefs could not be separated.” Apparently Mr. Sampson’s religious beliefs didn’t teach him anything about ethics.

This really is huge. The “underlying crime” in the Watergate scandal was the White House’s illegal activities — such as money laundering and breaking into Dem Party offices to look for something incriminating — to ensure Nixon’s re-election in 1972. Now there is mounting evidence that the Bush White House and other Republican officials have been trying to use the entire federal criminal justice system to win elections for Republicans. I say this has Watergate beat all to hell. So far we know thatGonzales has lied to Congress about the reasons for purging the attorneys, and certainly more juicy bits will be revealed as time goes on.

Yesterday Sen. Charles Schumer (D-NY) said he intends to subpoena Karl Rove if he doesn’t testify to Congress voluntarily. Stay tuned.

Last Refuge of a Soundrel

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“Patriotism is the last refuge of a scoundrel,” Samuel Johnson said. Maybe ’twas true then, but we’ve stooped a bit lower since. When all else fails, blame incompetence.

At least, that’s what the Wall Street Journal is doing. Check out this editorial about the FBI’s improper use of national security letters:

Just when President Bush seemed to have beaten back the Congressional defeatists on Iraq, along comes his own Justice Department to undermine some hard-won antiterror policy gains. The incompetence at Justice is getting to be expensive for Presidential power.

Remember, WSJ still believes President Bush has a glorious strategy for victory in Iraq. So for them to have gone from denial to excuses in such a short time is something of a miracle.

It’s true that the Justice Department’s internal investigation on the national security letter issue blamed human error and shoddy record keeping for most of the unauthorized wiretapping. But this tells me that the people at the top — Attorney General Alberto Gonzales and FBI Director Robert Mueller — have been winking at nodding at gross violations of citizens’ 4th Amendment rights. If these two had made it clear that all surveillance would be conducted lawfully, you can bet there’d have been a whole lot less human error and shoddy record keeping.

Dem Senator Chuck Schumer has called on Alberto Gonzales to resign. Republican Senator Lindsay Graham accused Schumer of interjecting “a little politics here.” I guess some righties are still in denial. I also infer that it’s unseemly for a Senator to speak up on a serious lapse if the lapser is a member of the other party. But if Republicans would take responsibility for their problem children, the Dems wouldn’t have to speak up. But Republicans, in effect, let the kids run all over the restaurant screaming and tripping the waiters and stealing food off plates, and when, finally, some adult says stop that, you little brat, the GOP gets all indignant about it.

(On a related note, see the Carpetbagger — “It’s become a fairly common refrain, hasn’t it? The right does something offensive, the left gets mad when there are no consequences, time elapses, and the right, annoyed by lingering resentment, tells the left to ‘get over it.’”)

Meanwhile, the U.S. attorney purge continues to get attention. What we know so far is that some of the U.S. attorneys were fired after Republican officials in their districts complained to Karl Rove— the bleeping White House political director — about the attorneys’ performance.


Paul Krugman wrote today,

Sources told Newsweek that the list of prosecutors to be fired was drawn up by Mr. Gonzales’s chief of staff, “with input from the White House.” And Allen Weh, the chairman of the New Mexico Republican Party, told McClatchy News that he twice sought Karl Rove’s help — the first time via a liaison, the second time in person — in getting David Iglesias, the state’s U.S. attorney, fired for failing to indict Democrats. “He’s gone,” he claims Mr. Rove said.

After that story hit the wires, Mr. Weh claimed that his conversation with Mr. Rove took place after the decision to fire Mr. Iglesias had already been taken. Even if that’s true, Mr. Rove should have told Mr. Weh that political interference in matters of justice is out of bounds; Mr. Weh’s account of what he said sounds instead like the swaggering of a two-bit thug.

As Digby writes,

The minute I read that the Arkansas replacement was one of Rove’s little minions and that Iglesias had been pressured before the election to indict a Democrat, it was clear that this was Rove deal all around.

The Dems want to question Rove ao I suspect we are going to see some executive privilege claims start flying. Rove seems to have developed a bad case of SMS (Scooter Memory Syndrome) in which he can’t remember a damned thing whenever it becomes clear that he was playing politics in the lowest most obvious way possible. In his case, once the investigations start, the disease will render him braindead so he probably won’t be much use to anyone from this point forward.

And have I mentioned in the last few hours that we are paying this asshat’s salary?

See also Ron at Middle Earth Journal.

Update: Jack Cafferty calls Alberto Gonzales a “weasel.”

Pardon?

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I will be surprised if President Bush pardons Scooter Libby. As Ezra says, Bush’s famous “loyalty” only goes one way —

It’s long been his M.O to cut loose even the most faithful of servants after they outlive their usefulness. And Scooter Libby has definitely outlived his usefulness. To pardon him would refocus the blame onto the presidency, make it clear the administration felt indebted to an underling doing their bidding. That’s all true, of course, save for the indebted part. Libby was doing their bidding and now it is done. End of transaction.

Well, almost. Peter Baker and Carol D. Leonnig report for the Washington Post:

President Bush said yesterday that he is “pretty much going to stay out of” the case of I. Lewis “Scooter” Libby until the legal process has run its course, deflecting pressure from supporters of the former White House aide to pardon him for perjury and obstruction of justice.

Scooter’s lawyers plan to seek a new trial. As long as there is even a possibility of more litigation, the White House can continue to use the “ongoing legal proceeding” excuse not to answer questions about Libby. That’s another reason I don’t believe we’ll see a pardon at least until after the 2008 elections.

Much is being made of Libby juror Ann Redington‘s desire to see Libby pardoned. I watched the Hardball segment in which she said this. My impression was that she was still thinking with Juror’s Mind, striving mightily to be fair and impartial. I’d be more interested in what she has to say about six months from now.

So Redington didn’t bother me nearly as much as Kate O’Beirne, sitting next to her, did. Kate thinks the jury tried its best but came up with the wrong verdict. Libby is, of course, innocent, no matter what the jury says. Just as Bill Clinton is guilty, even though Paula Jones lost her suit against him. See, courts are irrelevant. All you need to know to judge guilt or innocent are the political leanings of the accused. Anyone Kate judges to be one o’ hers must be innocent.

Hardball producers could save wear and tear on Kate if they just keep an inflatable Kate doll handy. Inflate it, stuff it into a chair, and play prerecorded talking points. ‘Twould be no better or worse than the real Kate. In fact, they might be doing that already.

At this point I don’t much care if Scooter sees jail time or not. If he were pardoned, it would not be like the pardons of Richard Nixon or Caspar Weinberger, whose pardons saw to it they were never tried. Avoiding those trials amounted to a cover up. But we’ve had Scooter’s trial; we know what happened. And Scooter’s just a factotum. It’s his masters I’m interested in.

Speaking of factotums (factoti?), David Brooks broods over the Libby trial today. He begins —

Three years ago I said some pessimistic things on TV about the war in Iraq. Scooter Libby called the next day. Methodically, though with a touch of wryness in his voice, he ran down a list of the hopeful developments he thought I was ignoring. Then as we were signing off, he interrupted himself and said: “Anyway, that’s the positive spin. I can do the negative spin just as well.”

Of course, Brooks was content with the positive spin.

Over the years, we had two lunches and about a half-dozen phone interviews, and he was more discreet each time. I would sit there — learning nothing — and think, We know the Bushies are not like us Jews because they’re willing to appear less knowledgeable than they really are, but can Scooter Libby be like this, too? [emphasis added]

Is that or is that not a damn weird thing to have written?

Yet it was hard not to like the guy — for his intelligence, his loyalty and his meticulous attention to ethical niceties. (At lunch he wouldn’t let me pick up the tab. He’d lay a $20 bill on the table to cover his half.)

Brooks goes around buying lunches for government officials? (I started to write “cheap lunches,” but I guess that shows I’ve lived in New York City too long.)

Yet that doesn’t begin to cover the sadness that this trial arouses, for the proceedings have revealed the arc of what the administration was and could have been.

Cue the violin music.

When you think back to the White House of 2003, the period the trial explores, you will discover a White House consumed by a feverish sense of mission.

Staff members in those days went to work wondering whether this would be the day they would die. There was a sense that any day a bomb might wipe out downtown Washington.

Hold that thought.

Senior officials were greeted each morning by intense intelligence briefings. On June 14, 2003, for example, Libby received a briefing with 27 items and 11 pages of terrorist threats. Someone once told me that going from the president’s daily briefing to the next event on Mr. Bush’s schedule, which might be a photo-op with a sports team, was like leaving “24” and stepping into “Sesame Street.” No wonder administration officials were corporate on the outside but frantic within.

The White House culture was also defined by the staff’s passionate devotion to the president. Bush’s speeches after 9/11 inspired a sense of intense connection, and the emotional bonds were kept perpetually aroused by the onset of war, by the fierce rivalries with the State Department and the C.I.A., and by the administration’s core creed, that everything it does must be transformational.

It was a time, in short, of grand goals but also of discombobulating and repressed emotion. [emphasis added]

But those intense emotions, especially the fear, not to mention a stew of underlying character pathologies, were driving the “grand goals.”

Today, the White House culture is less intense. The staff’s relationship to the president has simmered down, from devotion to mere admiration.

How precious.

Today, the White House staff is less disciplined but more attractive. There is no party line in private conversations. The trick now is to figure out what administration policy really is, because you can now talk to three different people and get three different versions on any topic. There’s more conversation and more modesty. The vice president has less gravitational pull, and there has been a talent upgrade in post after post: Josh Bolten as chief of staff, Henry Paulson at Treasury. If Bob Gates had been the first defense secretary, the world would be a much better place today. [emphasis added]

Then in the next paragraph, Brooks writes,

The administration has also lost its transformational mind-set. After cruel experience, there’s a greater tendency to match ends to means, and to actually think about executing a policy before you embark upon it.

Wow, thinking. Just imagine anyone in the White House actually thinking. But they can’t be thinking real hard, since no one has any idea in hell what Bush’s policies actually are.

There’s much more tolerance for serious freethinkers — the Johns Hopkins scholar Eliot Cohen was just hired at State.

In his book Fiasco, Thomas Ricks identified Eliot Cohen as a supporter of Paul Wolfowitz. (See p. 16.) He was one of the military experts assembled in December for the purpose of telling Bush the Iraq War is still “winnable” and that it was OK to ignore the Iraq Study Group recommendations. So much for serious freethinking. The Bushies are drawing the same tainted water from the same old well.

In short, this administration’s capacities have waxed as its power has waned. And you can’t help but feel that today’s White House would have been much better at handling the first stages of the war on terror. But that’s the perpetual tragedy of life: the owl of Minerva flies at dusk. Wisdom comes from suffering and error, and when the passions die down and observation begins.

I picture Brooks with a three-day beard, crying into a gin bottle in some seedy Washington watering hole. How tragic it is — the Bush White House, after six years of bleeping up the planet, is finally getting its act together, even though no two of them can agree on what the act is. If only they’d done it sooner. Like six years ago. But now that they have embarked on the serious mission of governing — thinking about it, even — it’s too late, and the owl of Minerva has flown off with the mouse of accomplishment in its beak. And Brooks has the sorry task of having to write a column about it. Where be your gibes now? your gambols? your songs? your flashes of merriment, that were wont to set the table on a roar?

Yes, so tragic. Pass the gin.

Not Fit

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The U.S. government finally is getting around to giving Jose Padilla, U.S. citizen, a trial. But there’s a catch. Naomi Klein writes,

Padilla’s lawyers are arguing that he is not fit to stand trial because he has been driven insane by the government.

Arrested in May 2002 at Chicago’s O’Hare airport, Padilla, a Brooklyn-born former gang member, was classified as an “enemy combatant” and taken to a navy prison in Charleston, South Carolina. He was kept in a cell 9ft by 7ft, with no natural light, no clock and no calendar. Whenever Padilla left the cell, he was shackled and suited in heavy goggles and headphones. Padilla was kept under these conditions for 1,307 days. He was forbidden contact with anyone but his interrogators, who punctured the extreme sensory deprivation with sensory overload, blasting him with harsh lights and pounding sounds. Padilla also says he was injected with a “truth serum”, a substance his lawyers believe was LSD or PCP.

According to his lawyers and two mental health specialists who examined him, Padilla has been so shattered that he lacks the ability to assist in his own defence. He is convinced that his lawyers are “part of a continuing interrogation program” and sees his captors as protectors. In order to prove that “the extended torture visited upon Mr Padilla has left him damaged”, his lawyers want to tell the court what happened during those years in the navy brig. The prosecution strenuously objects, maintaining that “Padilla is competent” and that his treatment is irrelevant.

Back in the 1950s we were perpetually being told that these sorts of things happened in the Soviet Union, and aren’t we glad we lived in America?

Curt Anderson, Associated Press:

“He is immobilized by his anxiety,” said Patricia Zapf, a forensic psychologist who administered tests on Padilla in October. “He believes he will go back to the brig and he will die there.”

The competency hearing before US District Judge Marcia Cooke on Padilla’s competency is crucial in deciding whether he and two co defendants will stand trial in April. …

… Dr. Angela Hegarty, a forensic neuropsychiatrist, said she concluded after examining and testing Padilla for more than 22 hours last fall that he is mentally incompetent for trial because he has post-traumatic stress disorder. Zapf reached the same diagnosis and recommended that Padilla receive treatment.

The prosecutors, of course, say Padilla is just fine.

Back to Naomi Klein:

According to James Yee, a former army Muslim chaplain at Guantánamo, there is an entire section of the prison called Delta Block for detainees who have been reduced to a delusional state. “They would respond to me in a childlike voice, talking complete nonsense. Many of them would loudly sing childish songs, repeating the song over and over.” All the inmates of Delta Block were on 24-hour suicide watch.

Human Rights Watch has exposed a US-run detention facility near Kabul known as the “prison of darkness” – tiny pitch-black cells, strange blaring sounds. “Plenty lost their minds,” one former inmate recalled. “I could hear people knocking their heads against the walls and the doors.”

Wednesday a federal appeals court ruled that Guantanamo Bay detainees cannot use the U.S. court system to challenge their incarceration. That was bad enough. But Padilla is a U.S. citizen, capriciously stripped of habeas corpus at the discretion of the Bush Administration and subjected to psychological torture for nearly six years.

The Soviets used to send political dissidents to psychiatric asylums and labor camps. The gulags sound downright humane compared to what our government did to Jose Padilla.

Drooling Idiot Alert

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Nothing like slapping down some drooling idiot first thing in the morning to get the juices flowing. I caught a fat one this morning in this old post about the Bush Administration firing US attorneys in mid-term without cause.

As I explain in the post, it is standard practice for an incoming president to ask for the resignations of US attorneys appointed by his predecessor. He then appoints new attorneys, who serve a four-year term. When George W. Bush became president he replaced all of Bill Clinton’s attorneys, for example.

However, back in 1993 when the Clinton Administration asked for the resignations of the Bush I US attorneys (who knew full well they’d be asked to resign), the Right-Wing propaganda machine went into overdrive ginning up a phony controversy to whip their drooling, knuckle-dragging followers into an anti-Clinton frenzy. As I wrote in the old post,

I dug an article about this episode out of the New York Times archives. On March 24, 1993, Attorney General Janet Reno demanded the resignation of all United States Attorneys. At the time, this prompted accusations from the Right that the Clinton Administration was trying to save the political career of Rep. Dan Rostenkowski. (If that was the plan, it didn’t work.)

In any event, I went to great pains to explain in the post (titled “U.S. Attorneys: It’s the Replacing, Stupid”) that presidents do have the authority to fire US attorneys whenever they like. However (1) it is highly unusual for US attorneys to be fired and replaced in mid-term except in cases of gross misconduct; and (2) the real issue is a provision in the Patriot Act that allows the White House to circumvent the constitutional requirement to have the appointee confirmed by the Senate. This is explained in detail in the post.

Lo, this morning some drooling idiot literacy challenged individual named Jim Quinn added this comment:

hmmmm. this has a familiar ring to it. let’s see, wasn’t it 1993 when the Clintons fired EVERY us attorney except one to cover for getting rid of the one (whose name escapes me) who was hot on their little whitewater trail?

I advised Mr. Quinn that he had just violated commenting rule #8 — commenting on a post without bothering to read it first. But if he wants to make a public fool of himself, who am I to get in the way?

Here’s the latest on Attorneygate — Laurie Kellman writes for the Associated Press:

Senate Republicans blocked a bill Thursday that would curb the Justice Department’s power to fire and replace federal prosecutors. Democrats had sought to give the courts a role in the appointments of U.S. attorneys, to GOP opposition.

The objection by Sen. Jon Kyl, R-Ariz., to the proposal was long anticipated. So Democrats used the occasion to complain anew about the firings of at least seven prosecutors, some without cause, under a little-known part of the Patriot Act.

Democrats say Attorney General Alberto Gonzales used the law to get around the Senate confirmation process and install Republican allies. …

… Democrats contend that prosecutors were forced to resign to make way for Republicans’ political allies and that the White House slipped the provision into the Patriot Act to permit such indefinite appointments.

As Paul Krugman wrote in the January 19 New York Times, “the Bush administration is trying to protect itself by purging independent-minded prosecutors.” Obviously.

However, ultimately the Senate must revoke that part of the Patriot Act that allows the White House to appoint “interim” attorneys who can serve indefinitely without Senate confirmation. (If they want to revoke the rest of the Patriot Act while they’re at it, I wouldn’t mind.)

A couple of days ago Marisa Taylor of McClatchy Newspapers reported that several of the US attorneys fired by Bush II had good performance reviews. And their replacements are being selected from the inner circle of the Bush Administration.

The Bush administration has said that six U.S. attorneys were fired recently in part because of “performance-related” issues.

But at least five of them received positive job evaluations before they were ordered to step down. …

… The decision to fire the U.S. attorneys came under scrutiny late last month after Senate Democrats discovered a change in the Patriot Act that allowed Gonzales to appoint interim U.S. attorneys for indefinite terms without Senate approval.

In testimony to the Senate Judiciary Committee last week, McNulty conceded that H.E. Cummins, the former U.S. attorney in Arkansas, wasn’t fired because of how he handled his job. Rather, McNulty said, administration officials wanted to make room for Timothy Griffin, a former aide of presidential adviser Karl Rove.

Cummins was involved in the federal investigation into Missouri’s license fee offices, an investigation first revealed by The Kansas City Star. His office was asked to determine if Gov. Matt Blunt’s administration had improperly awarded the sometimes lucrative offices to political supporters.

Last October, before he officially resigned but apparently after he was asked by the Justice Department to step down, Cummins issued a statement clearing the Blunt administration of wrongdoing.

Here is a list of the US attorneys known to have been asked to resign, although there could be more we don’t yet know about.

  • Carol Lam, the U.S. attorney in San Diego, who successfully prosecuted former Republican Rep. Randy “Duke” Cunningham, now in federal prison. Her last day in office was Thursday.
  • Bud Cummins, the U.S. attorney in Little Rock, Ark., resigned Dec. 20 and was replaced by former Karl Rove assistant Timothy Griffin.
  • Paul Charlton, the U.S. attorney in Arizona, announced Dec. 19 that he was resigning at the end of January.
  • John McKay, the U.S. attorney in Seattle, said he was ordered by the Justice Department on Dec. 7 to resign.
  • Kevin Ryan, the U.S. attorney in San Francisco, announced his resignation Jan. 16. Ryan was overseeing investigations into steroids use by major league baseball players and the backdating of stock options by Apple Inc., and other firms.
  • Daniel Bogden, the U.S. attorney for Nevada, announced Jan. 18 he will resign effective Feb. 28.
  • David Iglesias, the U.S. attorney for New Mexico. An assistant announced Iglesias’ resignation Dec. 19.

    • See also: “Speedy Gonzales“; “The Purge.”

    Update:     Paul Kiel writes at TPM that former Karl Rove assistant Tim Griffin, who was appointed to replace Bud Cummins, the U.S. attorney in Little Rock, has decided he won’t go forward with the Senate confirmation process because he thinks the Senate will be mean to him. Kiel quotes the Arkansas Democrat-Gazette:

    “I have made the decision not to let my name go forward to the Senate,” Griffin said Thursday evening….

    Griffin on Thursday blamed “the partisanship that has been exhibited by Sen. [Mark ] Pryor [D-Ark. ] and other senators on the Senate Judiciary Committee in the recent hearing” for his decision to bow out….

    Griffin said Thursday that if he were to go through the confirmation process, “I don’t think there is any way I could get fair treatment by Sen. Pryor or others on the judiciary committee.”

    Poor baby. Kiel continues,

    It’s been a rough couple weeks for Griffin, who was the most egregious case among the seven prosecutors purged in December. Deputy Attorney General Paul McNulty admitted to the Senate last week that Griffin’s predecessor had been forced out for no other reason than to make room for Griffin. And this morning, The New York Times revealed that Griffin had been installed as per the wish of White House counsel Harriet Miers.

    There does seem to be some question, though, as to why Griffin is bowing out…

      Pryor’s spokesman, Michael Teague, told the Arkansas Democrat-Gazette on Thursday, after Griffin said he was withdrawing his name from consideration, that [Attorney General Alberto] Gonzales himself had called Pryor earlier Thursday “and told the senator he was not going to submit Tim Griffin’s name.”

    It seems clear that the threat of Senate confirmation ended Griffin’s tenure — but who it spooked more, the administration or Griffin himself, is not so clear.

    The only reason Griffin was facing Senate confirmation at all, Constitution or no Constitution, was pressure from the Senate and the press. However, Thanks to that pesky Patriot Act Griffin can still hold the job indefinitely.

    Deliberations

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    Jeralyn’s explanation of what the Libby jury might be thinking gave me flashbacks to The Dumbest Trial of the Century. Here Jeralyn explains what some of the “dumbest trial” commenters were too thick to grasp:

    Scooter Libby is not required to prove he didn’t lie or obstruct justice. All he has to do is raise a reasonable doubt in the mind of the jurors that he did.

    The test for reasonable doubt is not a simple weighing of the evidence, after which the jury decides which side to believe more. That’s the test in a civil case where the standard of proof is a mere “preponderance of the evidence.”

    In layman’s terms, in a criminal case, if both sides’ theories and arguments sound plausible, that alone is a reasonable doubt and the jury should acquit.

    To which a commenter astutely replied,

    … in the end, a trial is not about “what is the truth” but rather what limits are there on the power of the state to take away liberty.

    Toward the end, the “dumbest trial” comment thread devolved into my trying to explain “burden of proof” to an impossibly stupid commenter. In a criminal trial, the burden of proof is on the prosecution (the government, a.k.a. “the people”). The “dumbest trial” judge explained to us that, strictly speaking, the defendant didn’t have to prove anything. Further, criminal trials usually require a unanimous verdict. Obviously, the reason for this is to discourage the government from throwing citizens into jail on phony charges. In other words, it’s to put limits on the power of the state to take away liberty.

    (The defendant’s lawyer in the “dumbest trial” demonstrated that at least some of the evidence against the plaintiff had been fabricated by one of the detectives. This screamed “reasonable doubt” to eleven of us jurors. Essentially, the guy who hung the jury was unable to wrap his head around the concepts of “reasonable doubt” and “burden of proof.”)

    Jeralyn says that she wouldn’t be surprised if the jury acquits, because she could see how they might decide they have “reasonable doubt” of Libby’s guilt. And, of course, if the jury acquits, the Right will conclude the entire Joe Wilson Saga was a fantasy of the Left.

    But, of course, this trial wasn’t about Joe Wilson or Valerie Plame Wilson or the Iraq War or the weapons of mass destruction. It was about whether whether Scooter Libby lied to FBI agents and the grand jury and thereby obstructed justice.

    However the jury decides, I agree with Jane that the testimony had vindicated Murray Waas. If you want a roundup of the real issues, read Waas’s two most recent reports for National Journal: “CIA Leak Probe: Inside The Grand Jury” (January 12) and “Cheney’s Call” (today).

    In brief: Dick the Dick is the instigator of the whole mess. Scooter was just following orders.

    See also: “For Liberal Bloggers, Libby Trial Is Fun and Fodder.”

    The Purge

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    Following up yesterday’s post on replacing U.S. attorneys — Paul Krugman writes in today’s New York Times,

    There’s something happening here, and what it is seems completely clear: the Bush administration is trying to protect itself by purging independent-minded prosecutors. …

    … Since the middle of last month, the Bush administration has pushed out at least four U.S. attorneys, and possibly as many as seven, without explanation. The list includes Carol Lam, the U.S. attorney for San Diego, who successfully prosecuted Duke Cunningham, a Republican congressman, on major corruption charges. The top F.B.I. official in San Diego told The San Diego Union-Tribune that Ms. Lam’s dismissal would undermine multiple continuing investigations.

    In Senate testimony yesterday, Attorney General Alberto Gonzales refused to say how many other attorneys have been asked to resign, calling it a “personnel matter.”

    As I wrote yesterday, U.S. attorneys usually are appointed at the beginning of a president’s term and serve for that term. it is not normal to replace U.S. attorneys in the middle of a term except in cases of gross misconduct. I don’t know if the current rash of mid-term firings is unprecedented, but if there is a precedent I haven’t found it.

    For a long time the administration nonetheless seemed untouchable, protected both by Republican control of Congress and by its ability to justify anything and everything as necessary for the war on terror. Now, however, the investigations are closing in on the Oval Office. The latest news is that J. Steven Griles, the former deputy secretary of the Interior Department and the poster child for the administration’s systematic policy of putting foxes in charge of henhouses, is finally facing possible indictment.

    And the purge of U.S. attorneys looks like a pre-emptive strike against the gathering forces of justice.

    As I wrote yesterday, it isn’t necessarily scandalous for a U.S. attorney to be forced to resign. Incoming administrations often ask all or most of their predecessors’ U.S. attorneys to resign. But mid-term firings for no clear reason do look suspicious. And the Bush Administration, through the Patriot Act, has found a way to circumvent the constitutional requirement that U.S. attorneys be confirmed by the Senate. President Bush can appoint “interim” attorneys with no limit on how long the “interim” period will be. So if he doesn’t get around to sending the nominations to the Senate in the next couple of years — well, he’s busy. Got brush to cut, you know.

    If someone finds the Krugman column republished outside the firewall, please add the link to the comments.

    In other news about the Bush Administration’s contempt for the rule of law and civil liberties — see this New York Times editorial.

    It is hard to render a convincing apology when you are not really apologizing. Consider Charles Stimson, the deputy assistant secretary of state for detainee affairs, who has been trying to spin his way out of his loathsome attempt to punish lawyers who represent inmates of the Guantánamo Bay internment camp.

    Last week, Mr. Stimson expressed his “shock” that major American law firms would represent terrorism suspects, hinted that they were paid by unsavory characters and suggested that companies should reconsider doing business with them. On Wednesday, Mr. Stimson said he apologized and regretted that his comments “left the impression” that he was attacking the integrity of those lawyers.

    It was not just an impression. It was exactly what he did. Mr. Stimson actually read out a list of law firms during an interview with a radio station friendly to the Bush administration.

    On top of that, Alberto Gonzales is blaming lawyers for the delays — some as long as five years — in bringing detainees to trial. The editorial continues,

    There’s no truth to that. The cause of the delay in bringing any Guantánamo detainee to trial is Mr. Bush himself. He refused to hold trials at first, then refused to work with Congress on the issue and claimed the power to devise his own slanted court system. Mr. Bush went to Congress only when the Supreme Court struck those courts down. The result was a bill establishing military tribunals for detainees that is a mockery of American justice.

    No No Alberto

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    Unreal:

    Specter: Now wait a minute, wait a minute. The Constitution says you can’t take it away except in the case of invasion or rebellion. Doesn’t that mean you have the right of habeas corpus?

    Gonzales: I meant by that comment that the Constitution doesn’t say that every individual in the United States or every citizen has or is assured the right of habeas corpus. It doesn’t say that. It simply says that the right of habeas corpus shall not be suspended.

    This is not an official transcript. When the real transcript goes online, please alert me.

    Update: See Robert Parry at Consortium News.

    Responding to questions from Sen. Arlen Specter at a Senate Judiciary Committee hearing on Jan. 18, Gonzales argued that the Constitution doesn’t explicitly bestow habeas corpus rights; it merely says when the so-called Great Writ can be suspended.

    “There is no expressed grant of habeas in the Constitution; there’s a prohibition against taking it away,” Gonzales said.

    Gonzales’s remark left Specter, the committee’s ranking Republican, stammering.

    “Wait a minute,” Specter interjected. “The Constitution says you can’t take it away except in case of rebellion or invasion. Doesn’t that mean you have the right of habeas corpus unless there’s a rebellion or invasion?”

    Gonzales continued, “The Constitution doesn’t say every individual in the United States or citizen is hereby granted or assured the right of habeas corpus. It doesn’t say that. It simply says the right shall not be suspended” except in cases of rebellion or invasion.

    “You may be treading on your interdiction of violating common sense,” Specter said.

    Specter helped create this monster. I hope he’s sorry now.

    U.S. Attorneys: It’s the Replacing, Stupid

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    By itself, forcing the resignations of at least seven U.S. attorneys is not necessarily scandalous. Presidents may fire U.S. attorneys, and they do so routinely at the beginning of a new administration.

    It is unusual to fire U.S. attorneys in mid-term except in cases of gross misconduct, which doesn’t appear to be the case for the forced resignations under discussion. I don’t yet know how often that’s been done. But the larger issue here is not so much the firing (although the firing is an issue) as it is the replacing. The Bush White House appears to have found another way to gut the Constitution and usurp powers that belong to another branch of government.

    Since the office of United States Attorney was created by the Judiciary Act of 1789, U.S. attorneys have been subject to Senate confirmation, per the DOJ’s own web site and Article II, Section 2, paragraph 2 of the Constitution:

    He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

    The White House didn’t directly nullify the “advice and consent” clause. Instead, through a provision in the Patriot Act reauthorization that went into effect last year, the Attorney General can appoint “interim” replacements who can serve indefinitely without confirmation. Mark Agrast of the Center for American Progress explains:

    The administration has managed to bypass the confirmation process by taking advantage of an obscure provision slipped into last year’s PATRIOT Act amendments. Until then, the U.S. Attorney General was permitted to appoint an interim U.S. Attorney for a maximum of 120 days, after which time the vacancy would be filled by the federal district court until a successor could be confirmed. The new provision removes the 120-day expiration date, allowing the Attorney General to appoint interim U.S. Attorneys on an essentially permanent basis, without Senate confirmation.

    Precisely why the seven attorneys were forced out of office remains unclear. The most controversial “replacement” so far is J. Timothy Griffin, a former aide to Karl Rove, who will become the new U. S. attorney for the Eastern District of Arkansas. Griffin is replacing Bud Cummins, who was appointed by President Bush in 2001. Per Paul Kiel of TPM Muckracker,

    Former Arkansas USA Bud Cummins told the Wall Street Journal that “a top Justice official asked for his resignation in June, saying the White House wanted to give another person the opportunity to serve.” Cummins was finally forced out in December, replaced with Timothy Griffin, formerly the research director of the Republican National Committee.

    “Wanted to give another person the opportunity to serve”? What the hell kind of reason is that?

    The New York Times:

    The Bush administration has appointed an extreme political partisan as the new United States attorney for Arkansas. Normally, the Senate would have vetted him, and quite possibly blocked his appointment. But the White House took advantage of a little-noticed provision of the Patriot Act, which allows it to do an end run around the Senate.

    Certainly, the firings look fishy. One of the attorneys was the “Duke” Cunningham prosecutor . Another (allegedly being sacked because of his “management style“) had been engaging in high-profile investigations into companies and executives fraudulently backdating stock-option grants. But in some cases no clear and obvious reason for the “firings” jumps out of news stories.

    You can read Sen. Dianne Feinstein’s objections to the “replacings,” here.

    It’s the Replacing, Stupid

    I want to be sure we’re all clear about this issue, because the Right wants you to think the issue is mostly about the firing, not the replacing.

    For example, NRO columnist Andrew McCarthy (in his artfully disingenuous way) justified the new “procedure” by explaining, “One of President Clinton’s very first official acts upon taking office in 1993 was to fire every United States attorney then serving,” except for Michael Chertoff.

    It was just politics, plain and simple.

    Patronage is the chief spoil of electoral war. For a dozen years, Republicans had been in control of the White House, and, therefore of the appointment of all U.S. attorneys. President Clinton, as was his right, wanted his party’s own people in. So he got rid of the Republican appointees and replaced them with, predominantly, Democrat appointees (or Republicans and Independents who were acceptable to Democrats).

    I dug an article about this episode out of the New York Times archives. On March 24, 1993, Attorney General Janet Reno demanded the resignation of all United States Attorneys. At the time, this prompted accusations from the Right that the Clinton Administration was trying to save the political career of Rep. Dan Rostenkowski. (If that was the plan, it didn’t work.)

    In any event, as I recall righties banged their pots and howled something fierce about these firings as part of their campaign to destroy Bill Clinton, even though it was a standard practice for an incoming president to replace U.S. attorneys.

    Back in 1993, David Johnston of the Times wrote,

    All 93 United States Attorneys knew they would be asked to step down, since all are Republican holdovers, and 16 have resigned so far. But the process generally takes much longer and had usually been carried out without the involvement of the Attorney General.

    Battles of the Past

    Ms. Reno is under pressure to assert her control over appointments at the Justice Department. She was Mr. Clinton’s third choice for Attorney General and arrived after most of the department’s senior positions were already filled by the White House.

    The comments of Ms. Reno and Mr. Stephens evoked the pitched battles of the past, when independent United States Attorneys resisted removal by new administrations.

    In 1969, for instance Robert Morgenthau, now the Manhattan District Attorney, resisted efforts by the Nixon Administration to replace him as United States Attorney in New York until he was given what he called an “ultimatum” by President Richard M. Nixon to leave office.

    In 1978, Attorney General Griffin B. Bell removed David W. Marston as United States Attorney in Philadelphia, provoking charges, never proved, that a lawmaker under scrutiny by Mr. Marston’s office had urged President Jimmy Carter to remove the prosecutor.

    Four-Year Terms

    United States Attorneys are appointed to serve four-year terms at the pleasure of the President. It was unclear whether Ms. Reno initiated the request for resignations or whether it was pressed on her by the White House. The Attorney General said it was a “joint decision.”

    Likewise, in 2001 the Bush Administration replaced Democratic prosecutors with Republican prosecutors. This was expected. And it’s entirely beside the point.

    About halfway through his NRO column, McCarthy admits that the Patriot Act did change the procedure for appointments. But McCarthy called the old process “a bizarre arrangement.”

    Previously, under the federal code (Title 28, Section 546), if the position of district U.S. attorney became vacant, it could be filled for up to 120 days by an interim appointee selected by the attorney general. What would happen at the end of that 120-day period, if a new appointee (who would likely also be the interim appointee) had not yet been appointed by the president and confirmed by the senate? The old law said the power to appoint an interim U.S. attorney would then shift to the federal district court, whose appointee would serve until the president finally got his own nominee confirmed.

    And what was wrong with that?

    Law enforcement is exclusively an executive branch power. The Constitution gives the judiciary no role in executive appointments, and the congressional input is limited to senate confirmation. U.S. attorneys are important members of the Justice Department — the top federal law enforcement officers in their districts. But while the attorney general runs the Justice Department, U.S. attorneys work not for the AG but for the president. They are delegated to exercise executive authority the Constitution reposes only in the president, and can thus be terminated at will by the president. Consequently, having the courts make interim appointments made no practical sense, in addition to being constitutionally dubious.

    Basically, McCarthy is arguing that the Senate’s “advice and consent” role is purely ceremonial — to rubber stamp the appointments of the President. Under the previous system, if the appointment proved to be controversial and was hung up in the Senate, the President could either withdraw the nominee and appoint somebody else, or the courts would appoint an interim attorney to serve while the President and the Senate haggled. And this, to McCarthy, is unacceptable.

    So yes, a president who wanted to bypass the Constitution’s appointments process could fire the U.S. attorney, have the attorney general name an interim appointee, and simply refrain from submitting a nominee to the senate for confirmation. But we’ve also seen plenty of abuse from the Senate side of appointments — and such abuse was not unknown under the old law. Though the president can nominate very able U.S. attorney candidates — just as this president has also nominated very able judicial candidates — those appointments are often stalled in the confirmation process by the senate’s refusal to act, its imperious blue-slip privileges (basically, a veto for senators from the home state of the nominee), and its filibusters.

    How dare those Senators question the decisions of the Lord High Decider!

    McCarthy finally falls back on the most fundamental principle of conservative ethics — Billy did it first!

    It’s worth noting, however, that the same Democrats who will be up in arms now were mum in the 1990s. President Clinton not only fired U.S. attorneys sweepingly and without cause.

    Which, as I explained above, is a red herring.

    He also appointed high executive-branch officials, such as Justice Department civil-rights division chief Bill Lann Lee, on an “acting” basis even though their positions called for senate confirmation. This sharp maneuver enabled those officials to serve even though it had become clear that they would never be confirmed.

    Reporting on Lee on February 26, 1998, the New York Times noted: “Under a Federal law known as the Vacancy Act, a person may serve in an acting capacity for 120 days. But the [Clinton] Administration has argued that another Federal law supersedes the Vacancy Act and gives the Attorney General the power to make temporary law enforcement assignments of any duration.”

    To be clear, Lee’s appointment was as Assistant Attorney General for Civil Rights, not as U.S. attorney, and I assume a different part of the federal code applied. The situations are similar in principle, of course. Here is the New York Times article McCarthy cites, and here is a New York Times editorial about the Republicans’ war against Bill Lann Lee.

    This story is long and complicated, but in a nutshell, Orrin Hatch, as chairman of the Senate Judiciary Committee, sat on Lee’s nomination. Literally. He scheduled no committee hearings; he just ignored the nomination. The Republicans found Lee’s nomination unacceptable because he had a long record of supporting civil rights and equal opportunity and other scary socialist stuff. Clinton kept him in the job through recess appointments, in the same way John Bolton became a UN ambassador.

    McCarthy screams about hypocrisy; where was he when Orrin Hatch sat on Bill Lann Lee’s nomination? Was he wringing his hands because the presidents’ nominee wasn’t allowed an up-or-down vote in the Senate? Somehow, I doubt it.

    For the record, I don’t like recess appointments, either, except in case of genuine emergency. But aren’t you just damn tired of Republicans who want the Dems to abide by a stricter set of rules than they accept for themselves? And isn’t there some way we can amend the Constitution so that Washington politicians act like grown ups?