Balkinization  

Wednesday, March 28, 2007

What Does Kyle Sampson Say?

Marty Lederman

Kyle Sampson’s prepared tesimony for tomorrow’s Senate Judiciary Committee hearing can be found here. (Thanks for the link, Howard.)

No real bombshells. Sampson does concede that there are a few "improper" reasons for dismissing U.S. Attorneys, which would include "an effort to interfere with or influence the investigation or prosecution of a particular case for political or partisan advantage."

He asserts that no such considerations played a role in these cases. OK, so why were these eight U.S. Attorneys asked to resign? Sampson is somewhat oblique, and does not provide specific reasons in his prepared testimony. One general consideration that he does mention as a legitimate ground for dismissal is intriguing, however—where a U.S. Attorney demonstrates "resistan[ce] to the President's or the Attorney General's constitutional authority." What does Sampson mean by this—and in what way, if any, did these U.S. Attorneys "resist" the President's and/or AG's "constitutional authority"? Tune in tomorrow.

Comments:

I notice that twice in these prepared remarks Sampson asserts that he and/or his DOJ colleagues had acted in "good faith."

That is an obvious red flag, given his cynical usage of the phrase "good faith" (his quote marks) in a now-famous email proposing quite the opposite.

It is iconic for all that is wrong in Bush's Justice Department.
 

There is an interesting question:

Would the firing of a prosecutor post facto because of the prior action constitute obstruction of justice?

The specific case at bar is arguably not interfered with, as it's supposedly a done deal. But the "message" to other prosecutors is clear: "Do what we want or your job (and reputation) is toast." Would that constitute OOJ in itself? Would it make a difference if there's a specific similar case in process or under consideration by another prosecutor?

Do we need a "whistleblower" statute that covers these situations where the threat is perhaps only implicit in the constitution and demeanour of the principals and the punishment is done afterwards?

What happens in a criminal case if the mob (for instance) threatens to rub out any squealers, and does so. Are they just liable for the murders, or is there a greater crime here?

Cheers,
 

It's obvious that Sampson is trying to salvage what reputation he may have had and perhaps be segued to a good job. I do not know if he is being represented by counsel or relying upon his own legal skills. If he is serving himself, then we all know about the "fool" adage. If he is being represented by counsel, I would hope for the sake of such counsel that he/she did not "bless" Sampson's statement and advise him to testify.

Based upon media disclosures of Emails, Democrats on the Committee should have a field day with cross examination. Why I can just imagine even Lisa's brother salivating at how he would handle cross, even with his penchant for protecting every step taken by George W's Administration. Sampson is about to get a haircut - as they say here in the Boston area, "Boy's regular."
 

I think Sampson's prepared remarks undercut the entire Administration position. As I understand him, he takes the position that political considerations are included within performance evaluation. That is, a US Attorney can be considered "undistinguished" for failure to serve a political agenda, not for what we would ordinarily consider job-related considerations.

This should force us all to re-think the meaning of the prior statements and emails. When Gonzales said that this was "an overblown personnel matter", it's clear now that he was implying lack of performance in the usual sense, but actually meant lack of performance in the extended sense of failing to be political. The same is true of the previous Justice Department evaluations which identified various prosecutors, including Fitzgerald, as "undistinguished". This description was hard to evaluate before; now it makes sense.

Sampson's testimony establishes that this scandal is not now and never was about "performance" in the usual sense of that word. It was always about politics, and the Administration simply lied by secretly re-defining the word. Once it did that, the extension from "doesn't follow Administration priorities" to "doesn't follow partisan Republican priorities" was all too easy.
 

This "scandal" is purely contrived and an utter joke.

Congress has no say in the removal of US attorneys. No SCOTUS decision nor statute explains what removal would be improper for the US attorneys.

Yes, Congress has subpoena power, but that has to relate to a proper legislative purpose. No such legislative purpose has even been argued beyond meaningless platitudes. This is nothing but an unconstitutional fishing expedition.
 

When I first read a summary of Kyle Sampson's opening statement, I thought there was no way that the American public would accept his attempt to redefine the word "performance." But then, late last night, I saw an HBO commercial, and I realized that I was wrong. The American public is very familiar with this common usage of the word. It's exactly how Tony Soprano uses the term when he speaks of people being good performers.
 

Mark Field:

I think Sampson's prepared remarks undercut the entire Administration position. As I understand him, he takes the position that political considerations are included within performance evaluation. That is, a US Attorney can be considered "undistinguished" for failure to serve a political agenda, not for what we would ordinarily consider job-related considerations.

I think it is useful to maintain a distinction between "political" and "partisan". While some may argue that achieving certain political goals (reducing immigration, getting rid of pornography, ensuring cleaner elections, etc.) is a valid consideration in the selection of U.S. attorneys, I'd hope that most everyone would agree that using such selections for partisan ends is wrong. Partisanship is the attempt to hold aggregate more power for your party, and only indirectly aimed at doing this for the purposes of helping achieve the overall political ends that the party favours. Some make think that politically committed prosecutors is permissible (or even justified), but our concept of the law and its administration is such that we should look askance at using the heavy tool of prosecution selectively to achieve partisan advantage. FWIW, I note that it seems fairly common for prosecutors to disdain party affiliation and activity, and perhaps for such type reasons.

Should prosecutors be even political (in terms of having an "agenda")? I dunno; I guess it's inevitable that they have to make some judgements on how to spend limited resources, and there are arguably more and less important things to go after (although how consensual pornography for adults ends up being on the top rung, when We're In A WAR On Terra-Ism Dontcha Know And 9/11 Changed Everything, is somehow beyond my ken). One could argue that pprosecutors should just try to enforce the laws on the books as evenly as possible, and that overt agendas are a sign that they might have something 'more important' on their mind other than the job of enforcing the law. In any case, if we are to have political considerations kick in, that process should be kept as open as possible. If we believe in our ideas of gummint, we ought to think that such political appointments get aired in public and vetted by the largest group possible, with appropriateg questioning and discussion, rather than hiding the 'politics' in alleys late at night (or in e-mails on the gwb43.com server).

Cheers,
 

No SCOTUS decision nor statute explains what removal would be improper for the US attorneys.

Perhaps not, but it certainly does say what behavior is improper for US attorneys.

Follow 28 US 530B to the ethical guidleines in the local rules for the district courts and you'll find that US attorneys are required by statute to refrain from pursuing cases where there are no cases, regardless of any political pressures to do so.

Yet Iglesias seems to have been fired specifically for obeying this rule.

If the executive fires attorneys for playing by the rules, yeah, that's a scandal. It wasn't that long ago that people on the right side of the aisle were up in arms about making sure counsel examining the government were independent from political influence. What changed? The administration?
 

I think it is useful to maintain a distinction between "political" and "partisan". While some may argue that achieving certain political goals (reducing immigration, getting rid of pornography, ensuring cleaner elections, etc.) is a valid consideration in the selection of U.S. attorneys, I'd hope that most everyone would agree that using such selections for partisan ends is wrong.

I agree with this. What I think Sampson's testimony shows is:

1. The previous attempts to claim that the discharges were "performance related" was a lie based upon a secret change in the definition of "performance".

2. The Administration, as it so often does, slid naturally down the slippery slope from "political" (ok) to "partisan" (not ok).

This "scandal" is purely contrived and an utter joke.

This isn't very persuasive at this stage. Congress has at least two interests here which you've ignored:

1. It has an interest in the way US Attorneys are appointed. That's both Constitutional and statutory. Appointments which corrupt the justice system clearly fall within Congressional purview.

2. Congress has an interest in receiving truthful explanations from Administration officials. The DOJ itself has now been forced to concede that several of its statements were inaccurate, and there are several more which clearly were as well.
 

humblelawstudent, you have alot to learn.

may i also add that congress has a vested interest in ensuring that u.s. attorneys are not used to further entrench majority political parties by commencing bogus investigations of political rivals or stomping out legitimate investigations of political allies.

there is a further vested interest in congress to ensure that legitimate investigations and prosecutions into suspected criminal activities are not derailed for political ends. in my book, that is known as obstruction of justice, and last i looked was a crime.

finally, there is a vested interest in congress in making legitimate inquiry into what appears to have been politically motivated firings for illegitimate purposes, in having the witnesses appearing before them tell the truth. in my book, this is known as contempt of congress and perjury, which i believe is also a crime.

on this last point, i continue to be amazed by those who scream that administration officials have been somehow victimized by investigations and prosecutions over the past couple of years. scooter libby was a victim when he lied to the grand jury? it may very well be that there was no crime committed in the outing of valerie plame, but lying before the grand jury is perjury. you have no right to lie before the grand jury, no matter what your motives may be. that's a crime. that's what he was convicted of.

alberto gonzales is a victim? it may very well be that the administration has every right to fire every single u.s. attorney, and for illegitimate reasons whenever the president simply feels like it. this does not, however, give alberto gonzalez the right to go before congress and lie about it under oath. that is perjury. that is contempt of congress. that is a crime. of the top law enforcement official in the country can't figure that out, then he should be saving the rest of us and doing something else for a living.

when are these guys going to figure out that all they have to do is tell the truth?
 

phg:

I'm sure it's just an instance of memory loss. Why would the Attorney General be expected to remember his role in firing US attorneys? It was a quotidian event that happened days, nay weeks(!) ago. It's like asking me what mall I was shopping in on the third Sunday of March in 1986. There's no way I could do that.

All this perjury-baiting nonsense is too much. If our government officials are going to be held accountable for each and every thing they do, why would anyone ever want to be a government official in the first place? Clearly, there should be a statutory immunity to prosecution and providing testimony that lets them accomplish their work safe from the distraction of oversight.
 

Mark Field:

2. The Administration, as it so often does, slid naturally down the slippery slope from "political" (ok) to "partisan" (not ok).

I'd amend that. "He didn't fall. He was pushed." I'd say not "slid", but "got dragged -- by Karl Rove and the other partisan thugs in the maladministration". When you let him and his cronies in the maladministration, you inevitably get a partisan (and only partisan) machine. That's what he does....

Cheers,
 

phg,

If I have a lot to learn, it obviously isn't coming from you or your posts.

First, Congress is on a fishing expedition and trying to exert certain powers that are only proper in the context of some real legislative purpose (to which no one has been able to point to some statutory or Constitutional authority from which this power of Congress is derived).

Second, since when has Congress had the power over the removal of executive officers such as the US attorneys? The Supreme Court has specifically said Congress cannot place such limits on the executive. "Advice and consent" is only relevant as to the appointment of such executive officers NOT their dismissal.

Finally, many political observers know the purpose of these fishing expeditions. Evidence of actual criminal behavior (beyond perjury or obstruction of justice) is almost never found. These fishing expeditions survive on their own as attempts to find someone who at sometime said something inconsistent. And, you know what, it often works. However, it almost never works to show some independent crime, just that people have bad memories or get confused. It's an utter joke to pretend it really goes any farther than that.
 

humblelawstudent:

phg,

If I have a lot to learn, it obviously isn't coming from you or your posts.

First, Congress is on a fishing expedition and trying to exert certain powers that are only proper in the context of some real legislative purpose (to which no one has been able to point to some statutory or Constitutional authority from which this power of Congress is derived).

Second, since when has Congress had the power over the removal of executive officers such as the US attorneys? The Supreme Court has specifically said Congress cannot place such limits on the executive. "Advice and consent" is only relevant as to the appointment of such executive officers NOT their dismissal.

Finally, many political observers know the purpose of these fishing expeditions. Evidence of actual criminal behavior (beyond perjury or obstruction of justice) is almost never found. These fishing expeditions survive on their own as attempts to find someone who at sometime said something inconsistent. And, you know what, it often works. However, it almost never works to show some independent crime, just that people have bad memories or get confused. It's an utter joke to pretend it really goes any farther than that.


Well. We know where you are getting your "learning". But, to be frank, if I want to hear that stuff, I can just turn on AM radio too....

Cheers,
 

Arne,

Thanks for your substantive post! Maybe if you tore yourself away from the Socialist Review, you might engage in a substantive argument. Hmm, this is fun. Why don't we do this all day?
 

humblelawstudent:

Arne,

Thanks for your substantive post! Maybe if you tore yourself away from the Socialist Review, you might engage in a substantive argument. Hmm, this is fun. Why don't we do this all day?


I write all my own posts (except the quotes from cases). If I'm referring elsewhere for substantiation or information, I will just link it.

You, OTOH, are just mouthing the same tired "talking points" that the RW Might Wurlitzer has told you to say: "Fishing expedition!" "Advice and consent!" "No underlyng crime!" "Fishing expedition!" (again) I think you left out "At will!", but maybe that's on the next fax sheet. And if you dig into older ones, you might find "Clinton did it too!", as well as "Broaddrick!" and other lamer epithets. You're a law student (I assume from your nom de plume). How about some case cites or research to back up your "talking points"?

Cheers,
 

HLS,

A proper legislative purpose here would be to investigate whether the (from the Sampson testimony today-two year project--no documentation, no vetting of information, etc.) apparent gross negligence/dereliction of duty in the process of selecting those to 'pushed out' by Sampson/Gonzalez/Goodling rises to the level of impeachable offense--Congress can impeach any civil officer of the US.

S. Farrar
 

"I write all my own posts... Mighty Wurlitzer"

Nonsense, Arne; You're just repeating the talking points fed you by the liberal Mighty Steinway. How do I know this?

1. All thinking beings automatically converge on the same sets of beliefs.

2. I'm a thinking being.

3. You disagree with me.

4. Some other people agree with you.

Ergo, you are either not a thinking being, or you are maliciously denying the obvious truth. And the alternate convergence HAS to be explained by some central source of false talking points.

....

Or we could all agree to presume that we're all thinking beings, capable of arriving at our own talking points... A subversive thought, I suppose, but you'll eventually learn to wrap your head around it.
 

Brett:

"I write all my own posts... Mighty Wurlitzer"

Nonsense, Arne; You're just repeating the talking points fed you by the liberal Mighty Steinway. How do I know this?

1. All thinking beings automatically converge on the same sets of beliefs.

2. I'm a thinking being.

3. You disagree with me.

4. Some other people agree with you.

Ergo, you are either not a thinking being, or you are maliciously denying the obvious truth. And the alternate convergence HAS to be explained by some central source of false talking points.

....

Or we could all agree to presume that we're all thinking beings, capable of arriving at our own talking points... A subversive thought, I suppose, but you'll eventually learn to wrap your head around it.


I don't agree with everone here. As I said, I compose my own posts, and they have their own unique ... ummm, "style" ... and slant. Yours, however, have evinced essentially nothing that I haven't heard from Rush, Levin, et.al. before ad nauseam, and nothing that hasn't been countered previously. Your post above is exemplary of this pattern. All these claims about the "limited" congressional powers, the "no underlying crimes", "fishing expedition", etc., have been hecked to death, but you (as is the case with "Bart") just ignore it and forge on. You're in for some "education" down the road, I'd say.

Cheers,
 

Humblelawstudent said:

"...just that people have bad memories or get confused."

What's really a joke is the right wing's new found insistence that perjury consists of nothing more than "bad memories" or being "confused"....
 

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