Balkinization  

Tuesday, March 27, 2007

Appoint A Special Prosecutor. Now.

JB

Neal Katyal's proposal to appoint a special prosecutor in the U.S. Attorney scandal not only makes considerable sense; it also helps resolve any dispute over executive privilege, as I've discussed here and here.

Comments:

So who is the 'top DoJ official not embroiled in controversy?'

How do they decide: I'm the one who can call for an SP?
 

It is unclear whether any criminal wrongdoing has occurred in this case. Some administration critics claim obstruction of justice. Others, including Attorney General Alberto Gonzales, insist that no wrong was done.

So now we have reached the point that we no longer require any credible evidence of a crime. We will now appoint special prosecutors based on the claims of an office holder's political opponents.

Somehow, I do not think that this was Professor Katyal's view when he worked in the Clinton Justice Department.

The special counsel regulations are not written with the presumption that someone is guilty, but create a process by which a case is evaluated fairly by a prosecutor. Bringing in a lawyer from outside the government ensures that the prosecutor harbors no desire to please his superiors.

This contention does not even pass the laugh test after Fitzgerald continued his investigation for months after discovering who was the source of the Plame leak and finding that that person committed no crime. The only conviction gained through that investigation had nothing to do with the original mandate of this special prosecutor.

I am sure some of the Dems here can relate similar excesses by Mr. Starr.
 

Bart DePalma: So now we have reached the point that we no longer require any credible evidence of a crime. We will now appoint special prosecutors based on the claims of an office holder's political opponents.

That argument vanished for you yesterday when Monica Goodling asserted her Fifth Amendment right against self incrimination.
 

So now we have reached the point that we no longer require any credible evidence of a crime. We will now appoint special prosecutors based on the claims of an office holder's political opponents.


Forgive me if I'm completely in left field here, but isn't it the role of a grand jury to determine whether enough credible evidence of a felony exists to take it to trial? And isn't that the body to which a prosecutor must present evidence?

That is to say, aren't we putting the cart before the horse if we require credible evidence of a crime prior to naming a prosecutor?
 

"Bart" DePalma:

So now we have reached the point that we no longer require any credible evidence of a crime. We will now appoint special prosecutors based on the claims of an office holder's political opponents....

Oh, come on. We got there in 1993. But we're not back there yet.

Cheers,
 

"Bart" DePalma:

[Prof. Balkin]: The special counsel regulations are not written with the presumption that someone is guilty, but create a process by which a case is evaluated fairly by a prosecutor. Bringing in a lawyer from outside the government ensures that the prosecutor harbors no desire to please his superiors.

This contention does not even pass the laugh test after Fitzgerald continued his investigation for months after discovering who was the source of the Plame leak...


"Bart" is still flogging the dead and stinking horse corpse of the RW Mighty Wurlitzer that because Armitage had outed Plame, any other outings were therefore not crimes. Simply not true; if someone else shoots someone, you're going to be hard pressed going into court and saying, "No problem, Your Honour, even though my client did kill that man, someone else shot someone else somewhere, so can't we just dismiss and go home?"

... and finding that that person committed no crime.

As Hertz says, "not exactly". While Armitage may have revealed the information inadvertently, the coverup of Libby's, Rove's, Fleischer's, and Cheney's machinantions prevented Fitzgerald from finding out wheher there was in fact a concerted effort by people to "out" Plame in violation of the law. That's what the Republican Fitzgerald said, not "no crime here".

... The only conviction gained through that investigation had nothing to do with the original mandate of this special prosecutor.

Bosh and balderdash.

I am sure some of the Dems here can relate similar excesses by Mr. Starr.

No, they weren't similar. One had to do with a six-year RW slimefest and a blow job, the other had to do with the outing of a covert CIA operative -- working to protect us from WoMD -- for political purposes. But "Bart" can't tell the difference.

Cheers,
 

PMS_Chicago said...

That is to say, aren't we putting the cart before the horse if we require credible evidence of a crime prior to naming a prosecutor?

No. If a citizen lodged a complaint against another citizen with me when I served as a prosecutor, I would require some amount of evidence of a crime before proceeding to an investigation. For example, if someone came in complaining that a neighbor was trespassing on his property, my next question would be what proof do you have? If the complainant merely said that I have a strong suspicion, I would thank him and ask him to come back when he had some actual evidence.

I find it fascinating that many here who cry big crocodile tears over the war time detention of foreign enemy combatants based on classified evidence have no problem at all with abusing the criminal justice system for political vendettas without a shred of evidence a crime has taken place.
 

"Bart" DePalma:

I find it fascinating that many here who cry big crocodile tears over the war time detention of foreign enemy combatants based on classified evidence have no problem at all with abusing the criminal justice system for political vendettas without a shred of evidence a crime has taken place.

I'll start crying some tears for the Rethuglicans when they're jailed and held in tiny cells incommunicado for five years without even a trial, much less a guilty verdict.

Cheers,
 

I find it fascinating that many here who cry big crocodile tears over the war time detention of foreign enemy combatants based on classified evidence have no problem at all with abusing the criminal justice system for political vendettas without a shred of evidence a crime has taken place.

Why the hell would you find it fascinating? There's nothing inconsistent about it: the government's actions should be transparent.

If classified evidence were so damning, they should be able to present it during the habeas review.

Likewise, if government officials have committed no crime, they should be willing to open their files and/or testify.

Claiming that the circumstances surrounding the capture of an enemy combatant outside of the battlefield or the conversations that guided the reasoning and presentation of a "plan" to fire US attorneys are somehow sacrosanct flies in the face of the obvious relevance of such information and abuses the justice system far more than making an accusation on political grounds alone.

If the sole basis of the accusations were political, it would be easy to dismiss them with a healthy account of what actually happened. That should work both ways, whether the administration is playing offense or defense.
 

arne:

Before you swallow any more of your foot, you might want to compare the dates when various reporters and officials learned about Plame and the subsequent date when Wilson lied in his NYT op ed piece.

Here is a sample timeline for your review.

Plame's identity was known to multiple reporters in the DC press corps before the NYT op ed piece and many of the contacts between the press and various officials were initiated by the press following up the story.

Wilson's claim that Plame was outed in revenge for his op ed piece is just another one off his several lies including the claim that the VP sent him to Niger and that he found no evidence of Iraq seeking to procure uranium from Niger. In view of this record, it is ironic that Scooter Libby is the one possibly going to prison for "lying."
 

PMS_Chicago said...

I find it fascinating that many here who cry big crocodile tears over the war time detention of foreign enemy combatants based on classified evidence have no problem at all with abusing the criminal justice system for political vendettas without a shred of evidence a crime has taken place.

Why the hell would you find it fascinating? There's nothing inconsistent about it: the government's actions should be transparent.


What does transparency have to do with the appointment of a special prosecutor without any evidence of a crime?

If classified evidence were so damning, they should be able to present it during the habeas review.

The reason the evidence is classified is to protect the source, not because it is damning or not. Additionally, the evidence of which you spoke is presented to a military tribunal for review.

Likewise, if government officials have committed no crime, they should be willing to open their files and/or testify.

OK, you first. Let us appoint a special prosecutor to review your life. If you are truly innocent, you have nothing to hide.

We will start by trolling through all of your private and business records and correspondence.

Maybe you have been visiting web sites that you should not have. Let's take a look at that computer hard drive and your server records.

Then, let us interview your friends, business acquaintances and family under oath followed by yourself.

Let us get rid of your pesky attorney and haul you in front of a grand jury where the special prosecutor can ask you about anything he wants.

Maybe you haven't committed a crime, but heaven help you if your testimony differs from the other witnesses or some of your documents.

Bad memory? No excuse, you are now a felon.

Something else I find fascinating is that those who complain that these US attorneys were fired for :::gasp::: political reasons seem to have no problem with initiating criminal prosecutions with no evidence apart from political accusations.

The irony, the irony...
 

Bart DePalma Something else I find fascinating is that those who complain that these US attorneys were fired for :::gasp::: political reasons seem to have no problem with initiating criminal prosecutions with no evidence apart from political accusations.

That line might have worked yesterday before Monica Gooding invoked the Fifth Amendment right against self incrimination, but today it doesn't pass the laugh test.
 

"Bart" DePalma:

Before you swallow any more of your foot, you might want to compare the dates when various reporters and officials learned about Plame and the subsequent date when Wilson lied in his NYT op ed piece.

Oh. So I'm off the hook if I shoot someone after someone else does the same thing, but not if I shoot them before someone else does. Guess I missed that in CrimLaw.

Plame's identity was known to multiple reporters in the DC press corps before the NYT op ed piece ...

But the maladministration knew about Wilson before the N.Y. Times Op/Ed as well. They were on to Wilson shortly after the Kristof article, and started working to counter/discredit him.

... and many of the contacts between the press and various officials were initiated by the press following up the story.

Assuming arguendo that is true, what does that have to do with the price of tea in Sri Lanka?

.... Wilson's claim that Plame was outed in revenge for his op ed piece ...

... and his earlier comments, off-the-record, to Kristof. You neglect that little tid-bit.

... is just another one off his several lies ...

It's a lie how?

... including the claim that the VP sent him to Niger ...

He never said that. He said he was sent at the veep's request, which is true. He never said that Cheney had called for him, personally.

... and that he found no evidence of Iraq seeking to procure uranium from Niger....

The best 'evidence' that Iraq was even thinking about doing so was a surmise by a Nigerian official, absent any actual overt indication from the Iraqis that they may have wanted to do such, that this is what they must have wanted. And that's not very good evidence, I'm afraid. You'd never get an indictment on that, much less a conviction.

... In view of this record, it is ironic that Scooter Libby is the one possibly going to prison for "lying."

Yes. Because he did.

Now go dig up some more previously discredited RW "spin points" to slather all over the thread, like the good RNC toady you are.

Cheers,
 

quitealarmed:

Since when does invocation of the 5th Amendment right to silence constitute evidence of a crime?

There is not a shred of evidence that Monica Gooding has committed any crime.

Shall we pass around the torches and throw a noose over the tree branch?
 

Oh, and "Bart"?

Plame's identity was known to multiple reporters in the DC press corps before the NYT op ed piece and many of the contacts between the press and various officials were initiated by the press following up the story.

Yes. Quite true. More than one maladministration official thought that it was a "good thing" to out an undercover CIA NOC to score political points. Imagine that.

Cheers,
 

Scene 5 from Monty Python's Holy Grail seems apropos:

CROWD: A witch! A witch! A witch! We've got a witch! A witch!
VILLAGER #1: We have found a witch, might we burn her?
CROWD: Burn her! Burn!
BEDEMIR: How do you know she is a witch?
VILLAGER #2: She looks like one.
BEDEMIR: Bring her forward.
WITCH: I'm not a witch. I'm not a witch.
BEDEMIR: But you are dressed as one.
WITCH: They dressed me up like this.
CROWD: No, we didn't... no.
WITCH: And this isn't my nose, it's a false one.
BEDEMIR: Well?
VILLAGER #1: Well, we did do the nose.
BEDEMIR: The nose?
VILLAGER #1: And the hat -- but she is a witch!
CROWD: Burn her! Witch! Witch! Burn her!
BEDEMIR: Did you dress her up like this?
CROWD: No, no... no ... yes. Yes, yes, a bit, a bit.
VILLAGER #1: She has got a wart.
BEDEMIR: What makes you think she is a witch?
VILLAGER #3: Well, she turned me into a newt.
BEDEMIR: A newt?
VILLAGER #3: I got better.
VILLAGER #2: Burn her anyway!
CROWD: Burn! Burn her!
BEDEMIR: Quiet, quiet. Quiet! There are ways of telling whether
she is a witch.
CROWD: Are there? What are they?
BEDEMIR: Tell me, what do you do with witches?
VILLAGER #2: Burn!
CROWD: Burn, burn them up!
BEDEMIR: And what do you burn apart from witches?
VILLAGER #1: More witches!
VILLAGER #2: Wood!
BEDEMIR: So, why do witches burn?
[pause]
VILLAGER #3: B--... 'cause they're made of wood...?
BEDEMIR: Good!
CROWD: Oh yeah, yeah...
BEDEMIR: So, how do we tell whether she is made of wood?
VILLAGER #1: Build a bridge out of her.
BEDEMIR: Aah, but can you not also build bridges out of stone?
VILLAGER #2: Oh, yeah.
BEDEMIR: Does wood sink in water?
VILLAGER #1: No, no.
VILLAGER #2: It floats! It floats!
VILLAGER #1: Throw her into the pond!
CROWD: The pond!
BEDEMIR: What also floats in water?
VILLAGER #1: Bread!
VILLAGER #2: Apples!
VILLAGER #3: Very small rocks!
VILLAGER #1: Cider!
VILLAGER #2: Great gravy!
VILLAGER #1: Cherries!
VILLAGER #2: Mud!
VILLAGER #3: Churches -- churches!
VILLAGER #2: Lead -- lead!
ARTHUR: A duck.
CROWD: Oooh.
BEDEMIR: Exactly! So, logically...,
VILLAGER #1: If... she.. weighs the same as a duck, she's made of wood.
BEDEMIR: And therefore--?
VILLAGER #1: A witch!
CROWD: A witch!
BEDEMIR: We shall use my larger scales!
[yelling]
BEDEMIR: Right, remove the supports!
[whop]
[creak]
CROWD: A witch! A witch!
WITCH: It's a fair cop.
CROWD: Burn her! Burn! [yelling]
BEDEMIR: Who are you who are so wise in the ways of science?
ARTHUR: I am Arthur, King of the Britons.
 

arne:

Yes. Quite true. More than one maladministration official thought that it was a "good thing" to out an undercover CIA NOC to score political points.

I see you continue to swallow your foot.

Funny that Fitzgerald did not indict a single person for that crime. Perhaps because that claim is also a lie.
 

Bart DePalma: Since when does invocation of the 5th Amendment right to silence constitute evidence of a crime?

When has invocation of the Fifth Amendment not been enough to begin investigation of whether a crime was committed? Whenever a government official refuses to explain her actions to the overseeing body (i.e., Congress) on grounds that it might incriminate her that always cries out for investigation. Inadmissibility of the invocation as evidence at trial is immaterial. The purpose of the investigation is to discover what happened and gather admissible evidence if appropriate.

I mean, come on, how can anyone seriously contest the basis for starting an investigation once a high ranking Justice Department official invokes the Fifth Amendment to avoid testifying to Congress?

Bart DePalma: There is not a shred of evidence that Monica Gooding has committed any crime.

Ms. Goodling’s attorney believes otherwise. He writes: “[I]t has come to our attention that a senior Department of Justice official has privately told Senator Schumer that he (the official) was not entirely candid in his report to the Committee, and that the official allegedly claimed that others, including our client, did not inform him of certain pertinent facts.Letter. That raises a concern about a violation of the False Statements statute.

Yesterday, you could argue that there was no basis for appointment of a special prosecutor. Today, that argument is gone.
 

"Bart" DePalma says:

OK, you first. Let us appoint a special prosecutor to review your life. If you are truly innocent, you have nothing to hide.....

Wow. That's rich, coming from someone who's been adamantly defending -- here, there, and everywhere -- the ability of the gummint to snoop on anyone they think they ought to, without a warrant and without probable cause.....

Cheers,
 

"Bart" DePalma:

We will start by trolling through all of your private and business records and correspondence.

Too late. The maladministration's already been there, done that, and without so much as even a NSL.

Yet, Dubya's big red rosy is the one that "Bart" wants to kiss....

Cheers,
 

"Bart" DePalma, flipflopping furiously (although he doesn't know it):

Let us get rid of your pesky attorney and haul you in front of a grand jury where the special prosecutor can ask you about anything he wants.

Hey, beats a 9X12 with chail link fence, armed guards, and a concrete floor for five years....

Maybe you haven't committed a crime, but heaven help you if your testimony differs from the other witnesses or some of your documents.

Bad memory? No excuse, you are now a felon.


No one believed the "bad memory" excuse. A jury, not some Democratic "slime machine". Unanimous, and beyond "probable doubt". Libby's defence was pathetic.

Cheers,
 

"Bart" DePalma:

[Arne]: Yes. Quite true. More than one maladministration official thought that it was a "good thing" to out an undercover CIA NOC to score political points.

I see you continue to swallow your foot.


IC you still don't have the faintest acquaintance with reality. We're even.

Funny that Fitzgerald did not indict a single person for that crime. Perhaps because that claim is also a lie.

Did I say it was a crime? It may well have been such, and should have been such, but I didn't say that it was a crime. In their usual manner, Congress made the crime of disclosure of an agent a crime of scienter:

50 USC § 421
(a) Disclosure of information by persons having or having had access to classified information that identifies covert agent

Whoever, having or having had authorized access to classified information that identifies a covert agent, intentionally discloses any information identifying such covert agent to any individual not authorized to receive classified information, knowing that the information disclosed so identifies such covert agent and that the United States is taking affirmative measures to conceal such covert agent's intelligence relationship to the United States, shall be fined under title 18 or imprisoned not more than ten years, or both.


Congress didn't make the doing of such for political advantage (or, as they might say, "for corrupt purposes") a more serious crime, perhaps because even in their most cynical moments they just couldn't imagine someone in power doing such a thing. But a crime it remains nonetheless. A felony. And it's pretty clear that all those people talking to reporters about Wilson's wife was hardly an accident (as the documentation seems to bear out as well). This was an intentional hatchet job on Wilson (and his wife), and anyone with two eyes and just a few more neurones can figure that out.

Perhaps Fitzgerald thought that proving the "knowing" elements was not possible on the evidence he had gotten (he may well have gotten more if he'd flipped one or two people, or if Dubya had taken his pledge to 'get to the bottom of it' and to punish any malefactors seriously ... which of course he didn't).

But the fact remains that even the "unknowing" outing of a CIA officer, for the purposes of discrediting what her husband said, is just so monumentally stoopid that no Congress could possibly have thought of this particualr scenarion in order to prescribe and appropriate punishment. Cheney et.al. knew that they were in trouble with their lies and distortions, and it was necessary to "deal with" anyone who cast doubt on them. That they would resort to the tactic of argumentum ad hominem, written in letters big enough for the marquee on Times Square is just a sign of how badly they knew they were screwed (or perhaps just force-of-habit for the likes of the thuggish Rove and Cheney). Wilson's wife had nothing to do with the force or the substance of his argument, and their disclosure of his wife's employer was no support for their position (in fact, if anything, it gave credence to his bona fides). It was just a cheap shot ... one of desperation. It was understandable: People in dire situations do stoopid things; some rob banks, some go telling news reporters that people are CIA agents. They're both 'reasonable' to the person who sees no better (or in fact, not any) 'solution' to their problem ... and they're both illegal.

"Bart", of course, thinks that outing a CIA agent was a 'good thing' (and adds insult to injury by heaping slanders on Wilson, who had served Republican administrations well). Why is something that only his heart can tell him.

And, getting back to my point, that's my gripe above: Outing Plame was just boneheaded dumb ... and done with malice in mind. "TOBAL". There ought to be a law against boneheaded stopid moves done with evil intent ... but where would we put all the Dubya-butt-suckers? Guantanamo is not nearly big enough..... Perhaps Ecuador? Hopefully we wouldn't need Brazil....

Cheers,
 

QuiteAlarmed said...

When has invocation of the Fifth Amendment not been enough to begin investigation of whether a crime was committed?

I am unaware of any instance when a criminal investigation began with an invocation of the 5th Amendment. Do you have an example?

Whenever a government official refuses to explain her actions to the overseeing body (i.e., Congress) on grounds that it might incriminate her that always cries out for investigation.

Congress has no basis to oversee the President's reasons for firing his own employees.

Bart DePalma: There is not a shred of evidence that Monica Gooding has committed any crime.

Ms. Goodling’s attorney believes otherwise. He writes: “[I]t has come to our attention that a senior Department of Justice official has privately told Senator Schumer that he (the official) was not entirely candid in his report to the Committee, and that the official allegedly claimed that others, including our client, did not inform him of certain pertinent facts.” Letter. That raises a concern about a violation of the False Statements statute.


This is an alleged accusation, not evidence of any criminal wrongdoing by Ms. Gooding. The primary reason given for Ms. Gooding invoking the 5th is that the committee is not being run with even the basic notions of fundamental justice and she is exposed to legal jeopardy even if her testimony is accurate and truthful. These are legalisms for calling the Dem investigation a partisan witch hunt setting perjury traps.
 

"Bart" DePalma has some unusual notions:

Congress has no basis to oversee the President's reasons for firing his own employees.

Outside of the arguable proposition that the president may truly fire anyone at will, do we understand then, "Bart", that it is your contention that if Dubya fired all prosecutors who ever took up cases against Republicans or who didn't take up any alleged case against a Democrat, and got up and said, "They're 'fire at will', I can do it, and for those specific reasons if I choose, nya, nya, nya!!!", this would be permissible? I just want to know to what depths this "L'etat c'est moi" sentiment reaches.....

On a similar note, why couldn't he order the FBI to round up and shoot all men with the first name "Sam"? Isn't that "executive privilege", so to speak? Doesn't he get to say, untrammelled by any fetters of comity, how the laws should be enforced? Who's to gainsay him? After all, we can just impeach him if he strays -- nonetheless abiding (just) within the limits of power you delineate here -- too far from what we want....

Cheers,
 

WITCH: It's a fair cop.
 

"Bart" DePalma says:

The primary reason given for Ms. Gooding invoking the 5th is that the committee is not being run with even the basic notions of fundamental justice and she is exposed to legal jeopardy even if her testimony is accurate and truthful.

True. How honest of you. But that's not the case here, and even if it were, that ain't gonna fly.

Cheers,
 

Bart DePalma: I am unaware of any instance when a criminal investigation began with an invocation of the 5th Amendment. Do you have an example?

I did a quick yahoo search and found this 1998 statement by then Government Reform and Oversight Committee Chairman Dan Burton in which he relies on witnesses invocation of their Fifth Amendment privilege to justify continuing his investigation. I certainly don't wish to suggest that Dan Burton should provide a model, but given the accusations of partisanship, I think this example is appropriate. I trust that you can find additional examples on your own with your own searches.

Perhaps you could now provide an instance where a high government official invoked the Fifth Amendment to avoid testifying to Congress and there was no ensuing investigation.

Bart DePalma: Congress has no basis to oversee the President's reasons for firing his own employees.

Congress certainly has the authority to legislate in this area -- in fact, this investigation has already produced legislation -- and Congress indisputably has a right to investigate anything on which it might choose to legislate. Furthermore, an oversight role is implicit in the Congressional power of impeachment expressly granted in Article 1, Sections 2 and 3 of the United States Constitution. I can conceive of no reason why this oversight should exclude personnel decisions, especially where, as here, the personnel decisions include firing the prosecutor of an ongoing investigation connected to the President's party.

Bart DePalma: The primary reason given for Ms. Gooding invoking the 5th is that the committee is not being run with even the basic notions of fundamental justice and she is exposed to legal jeopardy even if her testimony is accurate and truthful.

Ms. Goodling is a practicing attorney and a high official in the Justice Department. She is also represented by counsel in this matter. So I think we must give her the benefit of the doubt and assume she is well aware that those assertions do not provide a proper basis for invoking the Fifth Amendment. The only proper basis for her invocation contained in the letter from her attorney is the one I previously mentioned.
 

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