Balkinization  

Wednesday, March 14, 2007

The Struggle to See What Is Right In Front of Your Nose

Scott Horton

"[T]he avoidance of reality is much the same everywhere, and has much the same consequences. The Russian people were taught for years that they were better off than everybody else, and propaganda posters showed Russian families sitting down to abundant meal while the proletariat of other countries starved in the gutter. Meanwhile the workers in the western countries were so much better off than those of the U.S.S.R. that non-contact between Soviet citizens and outsiders had to be a guiding principle of policy. Then, as a result of the war, millions of ordinary Russians penetrated far into Europe, and when they return home the original avoidance of reality will inevitably be paid for in frictions of various kinds. The Germans and the Japanese lost the war quite largely because their rulers were unable to see facts which were plain to any dispassionate eye.

"To see what is in front of one's nose needs a constant struggle. One thing that helps toward it is to keep a diary, or, at any rate, to keep some kind of record of one's opinions about important events. Otherwise, when some particularly absurd belief is exploded by events, one may simply forget that one ever held it. Political predictions are usually wrong. But even when one makes a correct one, to discover why one was right can be very illuminating. In general, one is only right when either wish or fear coincides with reality. If one recognizes this, one cannot, of course, get rid of one's subjective feelings, but one can to some extent insulate them from one's thinking and make predictions cold-bloodedly, by the book of arithmetic. In private life most people are fairly realistic. When one is making out one's weekly budget, two and two invariably make four. Politics, on the other hand, is a sort of sub-atomic or non-Euclidean word where it is quite easy for the part to be greater than the whole or for two objects to be in the same place simultaneously. Hence the contradictions and absurdities I have chronicled above, all finally traceable to a secret belief that one's political opinions, unlike the weekly budget, will not have to be tested against solid reality."


- George Orwell, "In Front of Your Nose," The Tribune, Mar. 22, 1946.


There are times in the last six years when I've felt like I was trapped in one of those science fiction movies from the fifties. A focal character has discovered a group of ruthless aliens out to destroy the world, disguised as human beings and accepted in the fold of the community. He could go denounce them in a wild-eyed way to his friends and neighbors - but who would ever believe him? I got an early, very deep look into the heart of the Bush Administration. I was shocked at what I saw and at first didn't trust my own eyes and ears. That disinclination to believe what we directly observe is almost always a mistake, sometimes a serious mistake. And yet for years it's been a steep uphill struggle to get the American public to see and understand what is in front of them, and the danger it presents to our nation and the world. The Bush team are not strange monsters from outer space; in fact they are human. All too human. Their failings are the sort that commonly mark the weak-minded man who comes to wield great power without oversight and accountability. Today Alberto Gonzales reiterates his claim that "mistakes were made" - though supposedly not by him - and George Bush stands behind his long-time personal counselor, saying that he approved the sacking of the eight US attorneys, and there was nothing the matter with that decision. These excuses are flatly dishonest, and the suggestion that their actions were consistent with established practice of other governments is pernicious.

What is at stake here? The issue is enormous. It is whether the criminal justice system will be turned into a partisan political tool. Bush's Administration is already widely called a "hackocracy" because of his tendency to fill slots with unqualified and incompetent partisan hacks. But the crisis at DOJ goes far beyond that. Even civil service positions - which have been protected from this sort of partisan corruption since the Hatch Act of 1939 - are being politicized. The Boston Globe, for instance, has closely documented the process of weeding out qualified career attorneys from the Civil Rights Division at DOJ and their replacement with political retainers - and the same process has continued throughout the Department. But at the heart of the DOJ scandal lies political intrusion into the exercise of prosecutorial discretion - one of the areas which a democratic society most needs to shield from partisan intrusion. There is now clear evidence that Gonzales and Bush directed political prosecutions and attempted to deflect prosecutions of Republicans for political purposes. A state that criminalizes political adversaries and that cloaks the criminal conduct of its retainers is by definition a tyranny.

In 1946, George Orwell penned a series of essays that are, I believe, the most important to appear in the English language in the last century. He pointed to the emerging challenge of totalitarianism. He mapped the working of the totalitarian mind. How would it undermine the foundations of a liberal democratic culture like that of the United Kingdom or United States? It will assault our language. Our political institutions. Our political culture. It will try to build a party state and to accumulate unchecked executive power in the hands of a single person or a small leadership cadre. The tools used are potent but perhaps not easily recognized. As Orwell noted in the essay "In Front of Your Nose," men who aspire to totalitarian rule will attempt to persuade their subjects of preposterous untruths - things that, extracted from a political context - surely no one would ever believe.

The current debacle over the cashiered US Attorneys threatens to develop into such an exercise, though I am encouraged that both the media and the public are awakening from their slumber and coming to understand what is before them. The evidence of what has happened and why is all about us. It is obvious. Yet Bush and Gonzales insist that we ignore what we have seen and read and accept instead their dishonest characterizations. America will survive as a democracy and its institutions will survive only if we remain conscious of the idea of our democracy. And only if we keep our eyes open and recognize what is right in front of our noses. But, as Orwell says, it requires a constant struggle.

Comments:

Transparency in government is a must. While I.F. Stone was able before the days of the FOIA to locate government documents that revealed inefficiencies and much worse, very few other journalists were doing the same. Today we have what I call the trinity of transparency: open meeting laws, FOIA and whistleblower statutes. Yet, despite these means, the media have done a poor job of reporting what is happening. Perhaps journalists are more interested in being celebrities than journalists. So with this trinity of transparency, we can perhaps bless ourselves. But the media and the public must be ever vigilant to make sure that public officials do not evade, lie, whatever, to protect their own derrieres. Orwell might smile at the trinity of transparency as positive steps but then warn us not to be complacent. I for one want to see the sausage being made to know what is going into it.
 

Even to an outsider to American standards of the administration of justice, the blase duplicity of the Gonzales’ Chief of Staff’s “Griffin” emails, and the patent cynicism of the firings that they project is not just frightening, but terribly frightening. And the implications they do lie, as you more than rightly say, at its heart in whether “the criminal justice system will be turned into a partisan political tool.”And the firings, as much as the abuse of the prosecutorial appointments system they dramatically spotlighted is a horrible scandal.

But also to an outsider, as certainly as exhilarating and as noble as vilifying these things – whether on their own or as part of the larger pernicion of American politico-“legocracy” – might be, isn’t the real remedy, to coin a phrase, right under your nose[s]? And isn’t it really structural, not political?

The Bush administration was not – as I understand it – the first to treat the offices of US Attorney system as a kind of political swag bag.

Clinton and Reno are said to have used the power of appointment, perhaps not quite so cynically, but certainly as sweepingly, as an instrument at least of political power – whether or not there might be evidence elsewhere of its use for political reward.

Politics being what politics is, one suspects its use for political ends, perhaps not quite so spectacular as in this case, extends back to the time of the invention of the office.

So surely, the answer must be, to de-politicize the office itself. So, at the same time this conduct is condemned as roundly and persistently and as loudly as anyone, the real answer has to be to transform these offices which are not only seen to be, but which also structurally are, independent, authoritative executors of justice.

Other countries with an English legal base characteristically use a model fashioned on the UK’s, “Director of Public Prosecutions” model. Under that system, prosecutors operate independently of political direction, and appointment, except in the broadest sense. They are accountable to the Director and through the Director to the relevant constitutional authority – the legislature – and by day-in day-out measures, they repeatedly operate successfully.

As these current shudders run through the US political-legocracy, by all means, scandalize and condemn. Try to raise the political cost of the abuses and make sure they can’t happen again.

But you folks are the ones who invented the operating political ideals of checks and balances, the value of separation and oversight.

Isn’t it time you put them in place in the federal prosecutorial system? And they really are, right under your nose.
 

I should have added to my earlier comment that March 11-17 is Sunshine Week to commemorate open government. Just "google" Sunshine Week for more information.
 

The problem is that the power to prosecute is the quintessential executive function--enforcing the law by seeking criminal penalties against those who violate legal norms. And since the executive (whether it is the President and his appointed AG or an elected local DA) is a political actor, political considerations are inevitable.

So the apolitical system that you suggest is more aspirational than legal. It is more about how we have decided DOJ and the White House ought to act in wielding this power and how they historically have agreed to act. But it seems only for prudential reasons--everyone has recognized that this is the best/only way to balance democracy with these inherent powers.

But the departure from that prudential norm in this, or any, administration is not unlawful (putting to one side whether Congress could by law restrain the President's ability to control U.S. Attorneys). It is unwise and, apparently, unpopular; but not unlawful.

And the unpopularity of Bush/Gonales's actions reveals what may be the answer to the politicization of criminal enforcement--more politics, through reportage, public protest, and oversight from other segments of government and society.

So the problem for the past 6 years is not that Bush has politicized DOJ--it is that Congress, the media, and too-much of the public has failed to pay attention.
 

Last time I checked the Constitution, the President was the sole executive and the rest of that branch worked for him to achieve his goals.

Elections have consequences and choice of policy is one of them.

If one of the President's goals is to prosecute voter fraud, then the proper response by a US Attorney is "Yes sir" and then proceed to accomplish that goal.

If a US Attorney blows off his or her President's goals, then he or she can expect to be fired in favor of one another attorney who will do as he was told - just like any other employee who does not do what his employer instructs.

What is amazing about this 1984 "scandal" is that the Dems are getting away with calling the removal of US attorneys for not enforcing the law against Dem voter fraud as some sort of subversion of justice!

Double un good.
 

Clinton and Reno are said to have used the power of appointment, perhaps not quite so cynically, but certainly as sweepingly, as an instrument at least of political power – whether or not there might be evidence elsewhere of its use for political reward.

This is a right wing talking point, but it's false. The facts are much worse for Bush.

US Attorneys serve 4 year terms. In the past, Presidents -- D and R alike -- have routinely demanded resignations from all of them. That does not necessarily mean all were actually replaced. In some cases they were, in some they were not. It does mean that Presidents wanted the option. It's important to add that all new appointees had to be confirmed by the Senate, an important "check" on abuse.

The reason for this practice is simple: different Presidents have different priorities of crimes they want prosecuted. There's nothing sinister in this. No Attorney can prosecute every crime. Each office has to devote its resources according to what seems most important. It's fair to let Presidents set that general priority.

Bush's actions differ in three important respects. First, he somewhat surreptitiously had Arlen Specter add a provision to the Patriot Act renewal which allowed Bush to replace the Attorneys without Congressional approval. That removed the "check".

Second, it's unusual for a President to replace the same Attorneys he himself appointed. It happens, of course. Sometimes they don't do a good job. Sometimes they have personal issues. Nobody has ever fired them in mass before, though.

That gets us to the third difference, the reason for the firings. This is the real key. The evidence is very strong that at least some of the firings were for overtly partisan reasons. That is, they appear to have been fired for failure to prosecute Democrats (or, in one case, for prosecuting Republicans). This is intolerable. As I said above, it's perfectly ok for the President to establish categories of crimes he wants to prosecute. It is not at all ok to identify specific individuals purely on the basis of their party affiliation. The system can only operate if there is confidence that the target actually or potentially committed a crime, not that the person belongs to another party. Bush's acts undermine confidence in the rule of law. Again.
 

Bart, I generally shy away from attacks and angry arguments but your post left me utterly flabergasted (which is incredible because I read the nonsense you post on here frequently). Your misreading and mischaracterization of what went on here is really egregious.

While you are technically correct in stating that if a prosecutor totally blows off his bosses priorities he should be fired, this is not at all what went on here. In the cases of both McKay and Iglesias, both men were fired not because they blew off the President's goals. Rather, they were fired for exercising their prosecutorial discretion after, and I stress after, conducting what seem to be fairly rigorous investigations into alleged voter fraud. In fact, in McKay's case, he involved both the FBI and the Department of Justice's own expert on voting fraud who both agreed with his decision not to seek prosecution. With that in mind, how can you say they blew off anything?

This doesn't even begin to address the Lam firing which is even more cynical and troubling because it came while she was in the midst of an investigation that implicated several high profile executive branch appointees (namely Porter Goss and Kyle Foggo).

Going back to the McKay and Iglesias firings, does it not trouble you that elected officials pressured unethically and possibly illegally pressured them to either move faster or go forward with cases they did not believe merited prosecution nor did they believe they could win?

I have to admit I am exhasperated.
 

I'm shocked, shocked that Bart would proceed with repeating the voter fraud line and that things are on the up and up after having that line of thinking thoroughly debunked in a prior thread.
 

Good to have an authoritarian and highly partisan personality speak up to illustrate the problem.

Enforcing the laws just against "the Dems" is really not what our constitution envisions. I remember something about freedom of speech, equal protection, and some similar democratic ideas...

And furthermore, what has happened here appears to be interference in legal investigations and prosecutions. Hindrance of prosecution and obstruction of justice are crimes.
 

"Bart" DePalma:

Last time I checked the Constitution, the President was the sole executive and the rest of that branch worked for him to achieve his goals.

OK. Then we cashier Dubya for subverting the DoJ for partisan political ends. Malfeasance, corruption, and obstruction of justice. Fine by me.

Cheers,
 

"Bart" DePalma:

If one of the President's goals is to prosecute voter fraud, then the proper response by a US Attorney is "Yes sir" and then proceed to accomplish that goal.

Do you suggest he manufacture the voter fraud too so he has something to "prosecute"?

Care to respond to my rebuttals on the Gonzales thread?

Cheers,
 

"Bart" DePalma:

If a US Attorney blows off his or her President's goals, then he or she can expect to be fired in favor of one another attorney who will do as he was told - just like any other employee who does not do what his employer instructs.

Yeah. Ask Bork. Or Nixon.

Cheers,
 

Last time I checked the Constitution, the President was the sole executive and the rest of that branch worked for him to achieve his goals.

This is historically correct, but problematic. What happened here is legal, but very troubling ethically, like Nixon using tax audits to harass political opponents.

One of the major changes in government since the Constitution was written is the vast growth in executive power -- not only the executive power of the US federal government, but the executive power of all government, everywhere. This necessarily changes the balance of power as envisioned by the founders; it tilts it in favor of the executive in ways they could not have imagined.

Many states have dealt with this by ending the unitary executive and having the governor, attorney general, and many other executive officers elected separately. I don't think anyone would propose this for the federal government. But the "unitary exective," even if it does not mean the President's ability to defy the other branches, but only his complete discretionary power over the vast executive that we now have, is disturbing.
 

The simple and lasting solution to the DOJ mess would be to make the Attorney General answerable to the Congress, not the President. Pace Bart, there is nothing in the Constitution to prevent such a move. Executive officers and departments other than the President have been created by acts of Congress, and can be and have been changed by Congress. The President has the power to nominate and appoint executive officers, but the Constituion says nothing about how they are to be selected for him to nominate, or who can fire them. Admittedly this would be a revolutionary move, but perhaps the time has come for a revolution.
 

Gary Y. Larsen:

The simple and lasting solution to the DOJ mess would be to make the Attorney General answerable to the Congress, not the President. Pace Bart, there is nothing in the Constitution to prevent such a move. Executive officers and departments other than the President have been created by acts of Congress, and can be and have been changed by Congress. The President has the power to nominate and appoint executive officers, but the Constituion says nothing about how they are to be selected for him to nominate, or who can fire them. Admittedly this would be a revolutionary move, but perhaps the time has come for a revolution.

It may be worth considering, and it may be wise, but it's not strictly necessary. For the most part, when the executive is not corrupt and lawless, this has not been a problem. And most of our governmental institutions presuppose a modicum of integrity and responsibility in the participants (we have no "oversight committees" that vet legislative actions for unconstitutional [or even simply poorly written] law; we leave that to courts and those affected to challenge), and there's no obvious constitutional procedure to deal with either an executive or a legislature that wilfully ignores the courts; the same true for courts that do the same for legislative acts. We expect people in gummint to act like gentlepersons.

The Constitution assumes good behaviour for the most part, and implicitly prescribes the mechanisms for dealing with the more extreme misbehaviour. We saw this in 1973, and perhaps the same solution is quite sufficient to deal with today's abuses.

Cheers,
 

This comment has been removed by the author.
 

... following on:

I said: The Constitution assumes good behaviour for the most part, and implicitly prescribes the mechanisms for dealing with the more extreme misbehaviour. We saw this in 1973, and perhaps the same solution is quite sufficient to deal with today's abuses.

In the specific current circumstances, it may be enough for Congress to fire a shot over the bow of the executive here, and issue a warning (a "sense of Congress" on what will happen if the executive doens't cease and desist), and then see what happens. If the executive doesn't mend it's ways, they can then go on to do what they have warned the executive they would do in case of non-compliance or defiance.

Cheers,
 

zathras:

The administration has shown it has absolutely no faith in experts on any time. Don't ascribe to malfeasance what can be blamed on incompetence.

No need to choose. "It's two mints ... two mints ... two mints in one!!!"

Cheers,
 

I think there might be a slightly less malicious explanation for the administration's actions.

1) In the run up to the Iraq war intelligence analysis was being second-guessed by administration officials, such as Cheney, who would reinterpret raw data in a way that fit their worldview. They thought there were WMD's, and by golly the evidence was there.

2) In several reports on global warming, scientific reports were being second-guessed by administration officials, who would reinterpret raw data in a way that fit their worldview. They thought there were holes in the argument on global warming, and by golly the evidence was there.

3) In several investigations of alleged Democratic malfeasance, the prosecutorial discretion of US attorneys was being second-guessed by administration officials, who would reinterpret raw data in a way that fit their worldview. They thought there were illegal actions on the part of Democrats, and by golly the evidence was there.

The administration has shown it has absolutely no faith in experts on any time. Don't ascribe to malfeasance what can be blamed on incompetence.
 

For those who are interested, the Congressional Research Service prepared a report on all US Attorneys who left office early between 1981 and 2006. Link. (pdf)

This report clearly shows that Bush's actions are unique; nobody else "did it too".
 

Mark Field said...

As I said above, it's perfectly ok for the President to establish categories of crimes he wants to prosecute. It is not at all ok to identify specific individuals purely on the basis of their party affiliation.

Is the President acting for partisan reasons because voter fraud is a an activity which is dominated by Dems?

This is similar to the old smear that prosecutors are racist because minorities disproportionately commit crimes.

The alternative is too allow the criminal activity to continue unabated to avoid having your motives questioned. Of course, I suspect that is the goal of the Dems who are stoking this scandal.
 

Enlightened Layperson said...

BD: Last time I checked the Constitution, the President was the sole executive and the rest of that branch worked for him to achieve his goals.

This is historically correct, but problematic. What happened here is legal, but very troubling ethically, like Nixon using tax audits to harass political opponents.


Hardly. These US attorneys refused to act on widely reported illegal voting to determine whether there was a fraud. No one seems to be denying all the illegal voting. Rather, the excuses I have been hearing is that fraud is too difficult to prove.

Nonsense.

According to NPR this morning, Justice has managed to convict about 80 perps for voter fraud since 2002, including some from the infamous ACORN.

Why not in the jurisdictions of these fired US Attorneys?

One of the major changes in government since the Constitution was written is the vast growth in executive power -- not only the executive power of the US federal government, but the executive power of all government, everywhere.

Oh c'mon now. Prosecuting crimes is a core executive power which is not shared to any extent with the other branches.

Are you actually arguing that prosecuting voter fraud represents some sort of new expansion of executive power?

Many states have dealt with this by ending the unitary executive and having the governor, attorney general, and many other executive officers elected separately.

In that was the case with the Feds, then Gonzales would have the final word about firing his subordinates for not doing their jobs rather than the President.

The same principle would apply, though. You do what the boss says unless its illegal or you can find a new job.
 

I find astounding that the Justice department be considered an employee of the President. Do not all these civil servents pledge allegiance to the Constitution as does the President himself?
The addition to a bill permiting these clandestine appointments was introduced, almost in the dead of night, supposedly ignored by Arlen Spector and at the instigation of the WH, a mesure that allowed them to circumvent the approval procedure by the Senate of these appointees.

It is this underhanded, and if not illegal procedure though certainly a questionable one, that seems to have been concoted for the purpose of disposing of “undesirables.” That would indicate premeditation, to say the least, to pave the way for back-door appointments.
Why did they not just fire them and proceed to nominations and Senate confirmation of new apointees?
 

Electra said...

Why did they not just fire them and proceed to nominations and Senate confirmation of new apointees?

To avoid the opposition party holding the new nominees hostage as they have done with several judges.

Mr. Clinton used recess appointments when the party control of the branches was reversed in the 90s and the GOP was playing the obstruction game.

I do not recall a peep out of the left at that time.

In neither case did any of this political maneuvering represent even a mild threat to the Republic. Frankly, the fact that we get wrapped around piffles like this just shows how unserious much of our political discourse is these days.
 

Bart says:

in neither case did any of this political maneuvering represent even a mild threat to the Republic. Frankly, the fact that we get wrapped around piffles like this just shows how unserious much of our political discourse is these days.

If Bart thinks that the politicization of justice isn't a threat to the rule of law, he's delusional.

Not serious? Misuse of the law to prosecute people (or to pretend to) in order to win elections is corruption, plain and simple -- exactly as practiced by dictatorships all over the world.
 

"Misuse of the law to prosecute people (or to pretend to) in order to win elections is corruption, plain and simple "

It is indeed. Now, go out and prove that that's what happened, rather than assuming that it is.
 

Bart says:

"No one seems to be denying all the illegal voting."

You mean other than the fired prosecutors who actually investigated the alleged wrongdoings? Your ability to remain deliberately obtuse is amazing. A talent even.
 

Brett,

Talk about the struggle to see what's right in front of your nose -- and what, pray tell, if you haven't already been convinced by the email trail, would constitute "proof" that the firings were political?

May I point out that it's not my job to prove -- or even investigate -- things like this? That's what Congress is supposed to do. Let's see how it turns out, shall we?
 

Indeed, let's see how it turns out. I've already said that I'm open to the possiblity that it's all a partisan witch hunt.

But, the thing that makes a witch hunt a witch hunt is that there aren't any witches. If they're getting convictions in these cases, I don't really give a damn that Democrats don't like guilty Democrats being prosecuted.
 

Brett,

So we shouldn't assume that the firings were improper but we should assume that Democrats are upset because the Democrats are definitely guilty--even in the face of no evidence of guilt?

Double standard much?
 

Where did I say the Democrats are definately guilty? The only people I see stating anything definate about guilt here are the ones who seem to be sure the Democrats were definately NOT guilty.

What I have said comes down to this: Some of the Attorneys got fired because they refused orders to investigate certain charges. Others didn't get fired.

If the orders amounted to a partisan witch hunt, then the guys who didn't get fired must have agreed to go along with it. And were bringing, one assumes, weaker cases against Democrats than against Republicans.

This should be reflected in the relative conviction/aquittal ratios for Democrats and Republicans. If it's significantly higher for Republicans than for Democrats, I would say that the case that this was partisan wrongdoing was proven to my satisfaction.

If, OTOH, the conviction/aquittal ratios were comparable, then I would take it that there was no witch hunt on the part of the attorneys who didn't get fired, implying that the ones who did get fired weren't fired for refusing to take part in a witch hunt, but instead for refusing to do their job.

See? No conclusion about guilt or innocence, just an insistance that we need to see what the evidence is.

So, bring on the hearings!
 

Some of the Attorneys got fired because they refused orders to investigate certain charges.

This is another case of your assumption double standards. According to both Iglesias and McKay, the ones who you are saying were fired for not "investigating certain charges," there were fairly intensive investigations of the charges in question by the USA office and the FBI in consultation with and sometimes against the advice of the DOJ's own voting fraud expert. It is true, however, that both of these attorneys refused to prosecute "certain charges" because they, again along with the FBI and the DOJ's voting fraud expert, were skeptical that voting fraud took place and, even assuming that it did, they were convinced that they did not have the evidence to support prosecution.

Thus, while not forming a "conclusion about guilt or innocence," you are assuming that the administration's contention that these attorney's were fired because the did not "investigate certain charges" in the face of fairly good evidence to the contrary.
 

That there was vote fraud taking place is scarcely questionable. You'd be hard put to find a federal or big city local election without at least some ballot fraud, if only somebody voting their senile mother's absentee ballot, or registering cartoon characters.

The argument, as near as I can tell, and not presuming up front that this WAS a witch hunt, is that the administration was changing Justice's priorities on vote fraud investigation. They wanted retail vote fraud to be prosecuted, and certain elements in Justice wanted the old standard, that they only went after large scale vote fraud conspiracies, to be kept.

If this is the case, it was a valid basis for firing the Attorneys.
 

Ok, here's part of the story:

http://seattletimes.nwsource.com/html/localnews/2003615329_mckay13m.html

The key part being, IMO,

"One of the biggest controversies of the 2004 race was the casting of hundreds of ballots by convicted felons.

McKay asked Sullivan to create a task force of federal, state and county prosecutors to look into how and why the felons voted in violation of state laws.

Ultimately, Sullivan told McKay "there was no disagreement on the task force" that a federal case could not be brought on the felon voters.

Most of the felons who voted in the 2004 election, according to McKay, received ballots in the mail from the state of Washington. Therefore, he said, it would have been extremely difficult to prove in court that they knew it was unlawful for them to vote, but did it anyway."


So, yeah, there was ballot fraud, and enough of it to swing the election, but a judgement call was made to not prosecute. And when he said he wasn't going to prosecute "innocent" people, by "innocent" he meant guilty people who he didn't think he could prove knew what they were doing was a crime. But who might very well have known.

Sounds to me less like a witch hunt all the time.
 

Brett:

Anyone can selectively quote an article and leave out important facts as you just did. Perhaps you missed a very important part of this article:

McKay insists that top prosecutors in his office and agents from the FBI conducted a "very active" review of allegations of fraud during the election but filed no charges and did not convene a federal grand jury because "we never found any evidence of criminal conduct."

McKay detailed the work of his office in a recent interview. He spoke out because he believed Republican supporters of Dino Rossi, still bitter over his narrow loss to Democrat Christine Gregoire, continue to falsely portray him and his office as indifferent to allegations of electoral fraud.

McKay also wanted to make it clear that he pressed ahead with a preliminary investigation, despite the hesitation of Craig Donsanto, the longtime chief of the Election Crimes branch of the Department of Justice, who ultimately concurred with McKay that no federal crimes had been committed in the election.


With this included I don't see how you or any fair-minded observer could take issue with the lack of prosecution. In addition, when you say "guilty people," you are way off-base. People are clearly innocent until proven guilty. On top of that, there was a thorough investigation conducted that cast doubt on the idea that these people were guilty.

Thus, in the face of evidence that they may not have been guilty, evidence that severely limited the possibility of a successful prosecution of a crime, and with the agreement of the FBI and the DOJ's expert on election fraud, McKay decided to use his prosecutorial discretion to not pursue the case. Where is the problem here?

Just to make it clear. You seem to be saying that there is nothing politically motivated in the administration putting pressure on and eventually firing a US Attorney because he refused to prosecute a case that was in the interest of a bitter (and rightly so) Republican candidate against the best advice of the FBI, the administration's own Election Crimes head, and contrary to evidence that cast doubt upon the guilt of the alleged perpetrators. How is this not politcally motivated?
 

What is the nature of "guilt"? That hundreds of people engaged in criminal conduct is unquestionable. That they had criminal intent is, as the prosecutor says, unknowable.

OTOH, there are plenty of people in prison at this moment for conduct they arguably might not have known was illegal. That whole "Ignorance of the law is no excuse." bit, after all.

To hop on my personal hobby horse for a moment, gun ownership is a civil liberty frequently denied to convicted felons, too. (Hell, convicted misdemeanors.) And I assure you that, if they get caught owning them, the US Attorney does not start agonizing about mental states. He prosecutes.

Why should illegally exercising one civil liberty result in a shrug, and illegally exercising another result in hard time?
 

And I never said it wasn't politically motivated. I just think it wasn't out of bounds, as long as the prosecutions result in enough convictions to demonstrate that they're not being brought frivolously.
 

While I normally agree with the idea that "ignorance of the law is no defense," I think that, in this case, there is more to it than just ignorance. The fact is, "Most of the felons who voted in the 2004 election…received ballots in the mail from the state of Washington." This changes the situation in the sense that the felons might have voted on the assumption that if the State of Washington sent them ballots, they were entitled to vote. Thus, the actions of the state itself made it more likely that the felons would commit voting fraud and more likely that they would do so without intent to commit such a crime.
 

"Bart", oh lovable "Bart" DePalma, assuming his conclusions to beat the band:

Is the President acting for partisan reasons because voter fraud is a an activity which is dominated by Dems?

Is it true, "Bart", that you used a yellow rag to strangle and kill that little girl prior to raping her because red rags remind you too much of blood?

<*SHEESH!!!*> "Yes" or "no", "Bart", we really need to know so we can carry this conversation over the cliff as fast as possible....

Note to "Bart", BTW: The "Voter fraud! I see voter fraud!!!!" line doesn't work for most of the attorneys. And I'd note a distinct lack of interest by the DoJ in the (further) shenanigans down in Florida.

Cheers,
 

"Bart" DePalma assumes more 'facts not in evidence':

The alternative is too allow the criminal activity to continue unabated to avoid having your motives questioned.

Of course, you don't need to worry about people questioning your motives (and perhaps digging through your e-mails and paper trails) if bygawd you were n the up-and-up. Right? So let the investigations begin! Bring some popcorn, "Bart"; should be fun to watch now that the adults are back in charge. Haven't been this excited since college....

Cheers,
 

"Bart" DePalma says:

Hardly. These US attorneys refused to act on widely reported illegal voting to determine whether there was a fraud....

This is false.

And just to echo JaO from a while back, I'd point out that not even the maladministration is making such a specious argument in public. "Bart" picks the crapolo off the RW foamer sites, deposits it here, and expects us to walk up and say it doesn't stink....

Cheers,
 

Let me post a thought experiment:

A prosecutor has two cases before him. One is a serial killer, the other a prosecution for pick-pocketing. He has only sufficient resources to prosecute one. He chooses to prosecute the pick-pocket primarily because the pick-pocket is a political opponent of the pick-pocket, and the serial killer is an ally.

Is that prosecutorial misconduct?
 

"Bart" DePalma:

[Electra]: Why did they not just fire them and proceed to nominations and Senate confirmation of new apointees?

To avoid the opposition party holding the new nominees hostage as they have done with several judges.


No. We're starting to find out why, thanks to the miracles of email archives and Congressional subpoenas.

But FWIW, what's coming out is that they were thinking of doing so because they could, thanks to a provision of the PATRIOT act that allows appointment without Senate confirmation. Once again "Bart" shows less sense than Gawd gave a gnat.

Mr. Clinton used recess appointments when the party control of the branches was reversed in the 90s and the GOP was playing the obstruction game.

"Clinton's penis! CLINTON'S PENIS!!!! <*wauuuuuggghhhh*> Didn't you see it?...."

WTF does Clinton's peni-- ... ummm, sorry, recess appointments (which, FWIW, Dubya has also done, but which is not the point of contention here) ... have to do with the price of tea in Sri Lanka?

Cheers,
 

the fabulous galdstoner:

Thus, while not forming a "conclusion about guilt or innocence," you are assuming that the administration's contention that these attorney's were fired because the did not "investigate certain charges" in the face of fairly good evidence to the contrary.

Two corrections: "Bart" isn't "assuming" the attorneys were fired for this reason. He's contending that (as part of his defence of the maladministration's actions). The maladministraiton is not "contending" that. In fact, they came up with other reasons to excuse the dismissal (even if that was indeed their real reason). Mens rea....

Cheers,
 

brett:

[Seattle Times] "Most of the felons who voted in the 2004 election, according to McKay, received ballots in the mail from the state of Washington. Therefore, he said, it would have been extremely difficult to prove in court that they knew it was unlawful for them to vote, but did it anyway."

So, yeah, there was ballot fraud, and enough of it to swing the election, but a judgement call was made to not prosecute. And when he said he wasn't going to prosecute "innocent" people, by "innocent" he meant guilty people who he didn't think he could prove knew what they were doing was a crime. But who might very well have known.


It wasn't a crime unless they knew it. If he can't prove the elements of the crime, he shouldn't prosecute. Nor should he assume that anyone, absent evidence to the contrary, had done anything illegal.

Cheers,
 

brett:

What is the nature of "guilt"? That hundreds of people engaged in criminal conduct is unquestionable. That they had criminal intent is, as the prosecutor says, unknowable.

For some crimes, scienter is an element. If there is no scienter, there is no crime. Why you insist on callng it "criminal conduct" when the activity in question is not prohibited is beyond me.

Cheers,
 

brett:

To hop on my personal hobby horse for a moment, gun ownership is a civil liberty frequently denied to convicted felons, too. (Hell, convicted misdemeanors.) And I assure you that, if they get caught owning them, the US Attorney does not start agonizing about mental states. He prosecutes.

You might be wrong about that. WRT gun ownership cases, some courts have in fact required scienter in some circumstances.

Cheers,
 

Bart misses a few points:

Nowhere does he produce any evidence to support his assertions that Democrats perform more election fraud than Republicans.

As I pointed out in some digby posts, the ratio of corruption investigations/prosecutions against Democrats vs. Republicans under the current crop of DAs, came out to 80% Dem / 18% Rep / 2% Independent. He would need to provide numbers under Clinton (and Reagan/Bush I) that showed similar partisan bias in order to prove that "everyone does it".

Bart likes to argue from various premises, but I would like to see him argue from proof.
 

More on "Bart"'s "vote fraud" hallucinations (or, more accurately, RNC Mighty Wurlitzer "spin points"). And this stuff have Rove's fingerprints all over it.... Surprised?

Cheers,
 

This is getting remarkably tiresome. The "study" has already been shot full of holes, it's numbers the result of a partial examination of media accounts, and thus not particularly reliable. There may in fact be no discrepency to explain, it may be smaller, it may be larger. And the descrepancy, whatever it's size, may in fact be explainable.

We.
Don't.
Know.

But you think you do, which I find somewhat annoying. Myself, I'm waiting for the hearings.

And, Arne, all you've established is that the Attorney's decision not to prosecute could have been a defensible policy. But so could the administration's policy.

Which of them is entitled to establish policy?
 

Brett,

Stop spinning. It's embarrassing to all of us to read.

First you said the fired USA's didn't investigate the alleged fraud. That was false--they did investigate, they just decided, after investigation, that the facts didn't warrant prosecution.

Then you argued that even if the alleged criminals in WA didn't know they were committing fraud, they could still be prosecuted, because "ignorance of the law is no excuse." In so arguing, you showed that this old saw may also be applied to blog commenters, as you clearly are ignorant of the basic, 1L CrimLaw fact that scienter--as Arne noted--is a required element of fraud.

Finally, you argue that this was all just a simple "policy" disagreement. Again, you're wrong.
The issue here is not a good-faith "policy" dispute--it's a disagreement about the sufficiency of facts in particular cases to support prosecutions. These are exactly the types of decisions in which the AG and Pres should generally NOT be involved, as they, unlike the USA who worked with the FBI to investigate, do not have a command of the particular facts at issue.

So please stop. Your poses as "honest broker" are transparently dishonest, your attempted rationalizations are irrational, and your "understanding" of the law and legal decision-making is laughable.
 

Brett,

Please provide a link or a hint to where "the study" is debunked by someone authoritative.

As to who decides policy, the answer is: everybody in management decides the policy of their branch of the organization subject to the policy flowing down from above. If it's your thesis that the policy was and ought to have been to bring prosecutions in aid of electing Republicans, please excuse me if I suggest that that's a very bad precedent.
 

I don't worship at the altar of offical qualifications. If I, no social scientist, notice that the study claims to reach conclusions comparing the Bush administration to previous administrations without having collected data concerning previous administrations, I don't need a degree in social science to call a foul on them. If a blogger somewhere spends an hour with google, and turns up investigations of Republicans not in their supposedly complete database, he doesn't need a degree to call a foul on them.

This is the same kind of "authoritative" garbage that let Bellesiles go on peddling his historical revisionism, and even win a prestigious prize, for months and months after laymen had demonstrated he was a fraud, because the "authorities" were turning a blind eye to the problems.

The study has been exposed as faulty. And it has been so exposed whether or not anyone authoritative gets around to noticing.

You know, from the start I have repeatedly related what sort of evidence I would take as proof that this was political. Maybe the hearings will produce it.
 

Brett,

If you have actual evidence of a fault, you should really present it so we can assess it. Such as: "they missed such-and-such a case."

The study, by Shields and Cragan, does give its data, and we are free to assess it. I give a direct link to anyone so inclined: http://www.epluribusmedia.org/
columns/2007/
20070212_political_
profiling.html (you'll have to put the lines back together.)

While I'm not ready to assert authoritatively that this settles it, I'll believe chi-square over blunt assertions any day of the week. Even if they've missed a couple of cases, it won't affect the results significantly.

We don't have to be social scientists to look at chi-square values and check them.
 

Been there, read it.

Let me reiterate:

They collected data on the Bush administration. And only the Bush administration. And by "collected data", I mean made an incomplete survey of media accounts of investigations during the Bush administration.

And on the basis of this incomplete, and not particularly representative data set concerning ONE administration, made claims about how this administration compared to previous administrations. Which they made no effort to collect data on.

You think you need chi-square to object to that? All the math in the world can't turn a data set that worthless into a reliable conclusion.

Let me point out their own statement:

"The authors of this paper call for new federal laws that would create a national registry of the federal investigations of both candidates and elected officials by the U.S. Attorneys' and other Justice Department Offices. That Political Profiling Registry would indicate when a candidate or elected official was under investigation and report the candidates' or elected officials' party affiliation. Subsequently, that Registry would indicate if the investigation ended in no action taken or if there was an indictment or some special finding. Then, too, that Registry would report if the indictment was accepted by the Courts, whether the Justice Department plea bargained with witnesses against the elected official, or plea bargained with the elected official, entered into a speedy trial (say within 4-6 weeks of any indictment, especially if the indictment occurred within an election cycle, and if there was an acquittal, or a conviction)."

Look at that lit of information they want. They want it for a good reason: It's the information they needed, and DIDN'T collect, to arrive at their conclusions.
 

Brett:

You say: "made an incomplete survey of media accounts of investigations during the Bush administration."

Even they agree it cannot be complete. You have to use the data you have, not the data you'd like to have.

You say this data is not particularly representative. And I ask (now, for the third and last time) what evidence do you have that this data is not representative?

Their claim relative to previous administrations is that "it appears" that the Bush administration is the first administration that has such a bias in its prosecutions. And you strenuously object to this mild statement? Do your own study, show that past administrations have done this.

You say that their dataset is "worthless" but you provide not one shred of countervailing evidence, not even an example.

I don't know what you mean when you say "You think you need chi-square to object to that?"

chi-square is a statistical test. If you assume certain things about the underlying statistics, it gives you a probability for certain sample statistics. If you want to cast doubt on the chi-square test, you can do so only by demonstrating that the underlying statistical assumptions are false or that the sample was chosen using a method that produced bias.

In the particular case at hand, given the lopsidedness of the data, and even allowing for the limitations of their methodology, it is unreasonable to give much credence to either of those possibilities.

We are left with the inescapable conclusion that either the Bush administration overwhelmingly brought prosecutions against Democrats or, and even more damning, they leaked information about prosecutions far more often when the targets were Democrats.
 

"And you strenuously object to this mild statement?"

Look, Charles, this "mild statement" is both politically loaded, and conspicuously unsupported by the data they chose to collect. (Nothing kept them from looking at news reports from the Clinton administration.) And they could not possibly have failed to understand that their data didn't support their conclusion.

This is enough to establish that we're not looking at disinterested scholarship, we're looking at a political hit piece.

Now, it might be an accurate political hit piece, but without a heck of a lot more information, there's no reason to be confident of that.

Was their partial selection of news reports unbiased? Was the partial selection of which investigations to report on by the media unbiased? We don't know.

The most this report can be, is reason to find out some answers. It can't be the basis for any conclusions.
 

Brett,

I feel compelled to point out that you appear to be using two standards of evidence here, a very strict one for the authors of the study, and a far less strict one for your own conclusions about the study.

They used available news reports. They didn't choose what to include, or at least nobody has produced any evidence that they did any choosing.

Yet you conclude that the study is wrong. I'm not disputing your assertion that it is a political hit piece. That it was politically motivated is highly probable. But the evidence is the evidence, chi-square is chi-square, and I've noticed that, even after I asked you three times, you never provided anything to counter that evidence.

Well, this thread is about dead. Enjoy.
 

"Yet you conclude that the study is wrong."

Point to where I assert that conclusion, please. I think I've been quite clear that it might be right. My point is simply that nobody should have any confidence that it is.

You agree that it's a political hit piece. So we're not talking about people approaching the subject in a disinterested fashion.

They're willing to state conclusions their data conspicuously do not support. So we're talking about people who either don't know, or don't care about the most basic principles of conducting statistical studies.

We don't know how they chose which media reports to include in their database. Was it random, or biased in some way?

We have no reason to believe, supposing that they achieved a representative sample of media accounts, that media accounts are a representative sample of investigations/prosecutions.

And a statistical discrepency between investigations of Democrats and Repubicans does not establish political bias, unless one assumes a priori that absent bias, the investigations would be in rough proportion.

I repeat, you don't need math to impeach this study. It doesn't reach the level of credibilty where you'd need to use math to impeach it.

It could, none the less, be accurate. By coincidence...
 

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