Balkinization  

Thursday, June 28, 2007

First in What Will Probably be a Long Series: The President Asserts Executive Privilege

Marty Lederman

In response to the congressional subpoenas for White House documents and testimony related to the removal of U.S. Attorneys, the President has formally asserted executive privilege. Talking Points Memo has posted the Fred Fielding letter here. The Fielding letter attaches the legal justification for assertion of the privilege, signed by Acting AG Paul Clement. Like most of Paul's work, it is a serious and substantial argument, consistent with similar arguments in analogous privilege memos in Democratic and Republican Administrations alike. (It was almost certainly drafted in the first instance by Paul Colborn and political appointees at OLC; but I'm confident Paul Clement's signature is not simply a formality, i.e., that Paul made sure he was comfortable with each of the arguments and probably contributed materially to the final draft.)

Of course, like most such memos, several of the arguments in it are highly contestable. This is, after all, an area in which definitive judicial guidance is very limited. I won't have time to blog on the substance anytime soon. (For very helpful background on the conflicting arguments, see Walter Dellinger and Chris Schroeder here.) But I would for now simply focus on one prominent aspect of the memo -- the repeated assertion that because the President had the authority to replace the U.S. Attorneys for whatever reason he deems fit, Congress has no legitimate or substantial need to know what the reasons were for the removals.

This will probably strike most readers as an odd claim -- after all, isn't one of Congress's principal jobs to investigate and reveal possible wrongdoing within the Executive branch, both so that legislators can knowledgably consider statutory amendments that might lessen the risk of improper conduct in the future, and also simply to inform the American people of the wrongs of its government?

There are, in fact, good arguments to be made in support of this view -- particularly since, as I have written previously, there is substantial reason to think that persons within the Executive branch might have violated criminal statutes here, and/or that the President's reasons for dismissing the U.S. Attorneys call into question his faithful execution of the law, which Article II demands of him.

But it is not uncommon for the Executive branch to argue both (i) that Congress could not legitimately enact statutes to regulate the way in which the President decides to remove officials such as U.S. Attorneys (or, more to the point, the manner in which other officials in the Executive branch assist the President in performing that function -- a much more difficult proposition: even if Congress could not impose direct restrictions on the President's decision making, that doesn't mean it could not regulate those who would aid the President, whose offices, after all, are established by Congress itself); and (ii) that Congress does not have a wide-ranging authority to investigate and reveal Executive wrongdoing merely in order to expose such wrongdoing to the public (and to deter such conduct in the future). I think both of these arguments are mistaken; but they have a substantial pedigree, and must be taken seriously by Congress and by the courts, even if they are ultimately rejected.

Comments:

I would for now simply focus on one prominent aspect of the memo -- the repeated assertion that because the President had the authority to replace the U.S. Attorneys for whatever reason he deems fit, Congress has no legitimate or substantial need to know what the reasons were for the removals.

This will probably strike most readers as an odd claim -- after all, isn't one of Congress's principal jobs to investigate and reveal possible wrongdoing within the Executive branch, both so that legislators can knowledgably consider statutory amendments that might lessen the risk of improper conduct in the future, and also simply to inform the American people of the wrongs of its government?


US Attorneys may be fired by the President for any reason apart from obstruction of justice, including for political reasons. There is no allegation by Congress, nevertheless actual evidence, that any US Attorney was fired to obstruct justice. Rather, the argument is that the President fired the US Attorneys for "improper political reasons." In any case, obstruction of justice is already a crime and no one is seriously claiming that Congress can pass a law barring the President from firing his own political appointees for political reasons. Therefore, this obvious political witch hunt cannot hide behind the fig leaf of investigating wrong doing or enacting new laws.
 

Bart's argument fails, as it did the last dozen times he made it, for a reason which is no less true for having been repeated a dozen times:

Congress chose to pass a statute allowing the President to avoid confirmation process in naming new U.S. attorneys in certain circumstances.

Congress is entitled to reconsider the wisdom of that statute and to engage in factfinding thereon.

The abuse of the privilege granted to the President, as alleged in the present case, is a reasonable basis for Congress to investigate the alleged abuses.
 

It seems worth pointing out that no one, in a sane society, wants the president to appoint and dismiss attorneys based on their willingness to further the president's, and his party's, political goals. Before we get too distracted by the technicalities of the law, we should remember to simultaneously consider the reasons the attorneys were dismissed (and appointed), and whether these are legitimate in a functioning democracy.

Mr. DePalma has already been distracted from the most important issue, notwithstanding Lederman's advice in the final sentence of his post. If the allegations regarding the attorney dismissals are correct, we all have a duty to seek some remedy the problem. Remember if the administration's legal position can be maintained, then we face a very serious problem. Only the most naive foolish idealist would trust any president's word that he will not appoint and dismiss attorneys for his own political gain.

I second Anderson's final comment. There is, clearly, a reasonable basis for congress to investigate.

Pete L.

By the way, what is the word on the related converse problem, that of appointing attorneys who were will to do the administration's political and harmful bidding?
 

You know it really is interesting times for the country. It is like a "leak test" for the constitution, so many things not explicitly mentioned due to "quaint" assumptions such as "honest brokers" and "honorable individuals". But, hey! Those phrases don't apear in the Constitution (just ask Bart or Charles) and there is always impeachment, so no worries...

I first came to this site following up on Kim Lane Scheppele’s great article When the Law Doesn’t Count: The Rule of Law and Election 2000. After reading it, I was really struck that we might well need a "post-horror" Rule of Law amendment to our constitution (or let's hope it is a "post-almost-horror" amendment.)

But if we are truly at the point where it is all just some fancy semantic game, and that is acceptable to the press and the country, no further words written anywhere are going to stop that slide. My read is that we are in the greatest Constitutional crisis since the Civil War and like any Constituional crisis, it is more a test of our basic moral fiber than any mere scratchings of pen on paper.
 

I see no reason that Congress couldn't restrict the President's authority to fire U.S. Attorneys. Limitations on Presidential authority to terminate officers were upheld in Humphrey's Ex'r v. U.S., 295 U.S. 602 (1935). Everyone agrees that U.S. Attorneys need independence to uphold the law free from political interference. To my thinking, that brings their offices comfortably within the category where Congressional limits on Presidential termination are permissible under the reasoning of Humphrey's.

Indeed, I think that this Administration's clear abuse of its power to terminate U.S. Attorney's makes a strong case for the wisdom of legislation granting U.S. Attorney's tenure for a fixed term unless terminated for cause.
 

Bart DePalma wrote: US Attorneys may be fired by the President for any reason apart from obstruction of justice, including for political reasons.

An attempt to obstruct an ongoing prosecution or investigation is only one example of improper reason for a President to fire a U.S. Attorney. There are many others. An example that comes immediately to mind is firing a U.S. Attorney because he was absent from his office while serving in the National Guard.

Bart DePalma wrote: There is no allegation by Congress, nevertheless actual evidence, that any US Attorney was fired to obstruct justice.

There certainly are reasons to suspect that U.S. Attorneys were fired to obstruct justice. Notably, Carol Lam was fired in the midst of investigating prominent members of the President's party. Mounting evidence also suggests that U.S. Attorneys were fired for resisting pressure to bring baseless prosecutions that would have politically benefited the President's party.

To the extent that Congress has not yet uncovered definitive evidence of such improper motives, that is largely the result of the Administration's efforts to stonewall the investigation. One cannot plausible argue that the possiblity of improper motives has been discounted when the Administration has, to date, failed to disclose who selected the U.S. Attorney's for termination, let alone provided an accounting of the reasons.
 

QuiteAlarmed:

Well, then there were certainly reasons to suspect that U.S. Attorneys were fired under both Clinton and Carter to obstruct justice -- were you calling for investigations and impeachment back then? Oh, that's right, the DEMOCRATS controlled Congress then.

We now return to your regularly scheduled pogrom.
 

Jonathan Turley, with Keith Olbermann, raises another possibility:

...Since we first found out about this program, some of us have said that this was a clearly criminal act that the president called for. ... If we're right, not only did he order that crime, but it would be, in fact, an impeachable offense."

"Both sides, both Democrats and Republicans, have avoided this sort of pig in the parlor," Turley continued. "They don't want to recognize that this president may have ordered criminal offenses. But they may now be on the road to do that, because the way Congress can get around the executive privilege in court is to say, we're investigating a potential crime."

http://rawstory.com/news/2007/Law_Scholar_Wiretap_subpoenas_may_open_0627.html
 

Charles,

During Carter's administration, you would have been correct.

However, for 3 congresses under Clinton 104th-106th, the Republicans held the majorities in both houses.

Since your facts are incorrect, I have grave doubts as to your allegations.
 

Charles: Which U.S. Attorneys do you suspect were fired improperly in the Clinton and Carter Administrations? Please provide names and the improper reasons you suspect.

I am sure you are aware that, despite attempts by Republican pundits to confuse the American public, nothing remotely similar to the Bush Administration's mid-term mass U.S. Attorney purge happened during either of those Administrations.
 

Sarah,

I believe you are confusing two different sets of subpoenas. Turley was discussing the new subpoenas issued just yesterday regarding the warrantless suveillance program; the subpoenas the White House rejected today were issued previously, and related to investigating the U.S. attorneys matter.

Turley's view likely will be relevant if, as expected, the White House also defies the subpoenas relating to the surveillance program.
 

Sarah:

Too bad, then, that Congress does not prosecute federal crimes, huh?

QuiteAlarmed:

I have no facts / allegations wrong -- Clinton fired the U.S. Attorney investigating Rep. Dan Rostenkowski (D-IL) BEFORE the GOP took over in 1994. My question stands: were you calling for investigations and impeachment back then?
 

Charles uses the term "pogrom" to describe QuiteAlarmed's comment. This is quite something! If Charles knows the history of this word, and honestly believes QuiteAlarmed's comment counts as a pogrom, he needs to very seriously reevaluate his values (and his basic ability to apply a definition).

And to Charles, directly, You shouldn't assume that QuiteAlarmed or anyone else wouldn't want serious investigations into the many wrong doings of the democratic party. Not all of us participate in this strange game of picking a party to cheer for. In addition, you must realize that the fact that there are democrat supporters who are hypocritical, it doesn't have relevance to the substantial issues at hand. Pointing out the obvious hypocrisy of some, is not relevant to the project of maintaining a functioning democracy and discussing its laws.

Pete L.
 

Sorry, that last one was for FraudGuy.

QuiteAlarmed:

Only MID-TERM mass U.S. Attorney firings can be improper?
 

QuiteAlarmed:

Carter fired U.S. Attorney David Marston at the request of Democratic Rep. Joshua Eilberg, whom Marston had been investigating corruption charges against Eilberg (and Democratic Rep. Daniel Flood). I will get you the Clinton firing specifics.

P.S. Thanks for the info, Pete.
 

Charles:

As I am sure that you know, Jay Stephens (the U.S. Attorney investigating Representative Dan Rostenkowski) was released in 1993 when President Clinton came into Office, along with all 93 of the other U.S. Attorneys. It was simply a case of a new Administration replacing the appointees from its predecessor. This is the same thing that every Administration, including both Bush Administrations and the Reagan Administration, does when it takes office. Nothing suggests that Jay Stephens was particularly singled out for termination.

In contrast, the U.S. attorney firings at issue here, were highly unusual. The Bush Administration singled out several particular individuals for termination, one of whom was conducting prominent investigations of members of the President's party and several others of whom had resisted pressure to bring baseless prosecutions that would have benefited the President's party.

I'll ask again, what reason do you have to suspect that Jay Stephens was terminated for improper reasons? Or any other U.S. Attorney fired during the Clinton Administration?

I'll address David Marston in a separate post.
 

Peter writes: You shouldn't assume that QuiteAlarmed or anyone else wouldn't want serious investigations into the many wrong doings of the democratic party.

Agreed. If there was reason to suspect that an Administration improperly fired a U.S. Attorney, I absolutely would want Congress to investigate it, regardless of the party of the Administration.

I recall extensive Congressional investigation during the Clinton Administration. If there was any reason to suspect that Jay Stephens was fired for improper reasons, I am certain that Dan Barton would have investigated it.
 

This comment has been removed by the author.
 

QuiteAlarmed:

YOU were the one who posted above the following criteria "There certainly are reasons to suspect that U.S. Attorneys were fired to obstruct justice. Notably, Carol Lam was fired in the midst of investigating prominent members of the President's party." I'm simply using YOUR own stated criteria.

Jay Stephens was indeed the name I was looking for -- thank you very much -- he was similarly fired in the midst of investigating prominent members of the President's party (eventually, you may recall, Clinton gave Rostenkowski a Presidential Pardon). That, at the very least, fits YOUR criteria of "reasons to suspect that U.S. Attorneys were fired to obstruct justice" correct?

But, even putting aside ALL of Clinton’s first term U.S. Attorney nominations (and I still don't see how you are going to argue the President gets one free shot at what you are NOW calling "improper firings"), are you seriously going to claim that NONE of the following U.S. Attorneys (AFTER Clinton's re-election, replacing those who had already been appointed by Clinton the first time around) were investigating any Democrats and/or based on any “political consideration” at all:

1997 — Wilma Lewis, Beverly Martin, Douglas Jones, Thomas Scott, Mary Lou Leary, or Sharon Zealey?

1998 — Byron Jones, Denise O’Donnell, Paul Warner, Scott Lasser, Paul Seave, Ellen Curran, Stephen Robinson, Richard Deane Jr., Alejandro Mayorkas, Robert Green, Harry Litman, or Jose Rivera?

1999 — Melvin Kahle, Gregory Vega, Thomas Strickland, Donna Bucella, Daniel French, Quenton White, Jackie Williams, Mervyn Mosbacker Jr., Carl Schnee?

2000 — Daniel Webber Jr., Norman Bay, Steven Reed, Ted McBride, or Audrey Fleissig?

Do you really want to bet how many of these U.S. Attorneys were registered Republicans? As for Chairman Burton, he was not Chairman in 1993 re: Stephens' firing. By 1997, maybe Burton was too busy investigating everything else Clinton was up to, or maybe, just maybe, everyone on BOTH sides of the aisle understood back then that Presidents have the preogative to fired whichever U.S. Attorneys they want, with or without reason, and it was only now that Democrats have decided to trump up all these charges?

I take great comfort knowing that you, for one, [retroactively] would have absolutely wanted Congress to investigate it before, regardless of the party of the Administration. We'll see if that holds for the next Democratic Administration . . .
 

Charles:

As for David Marston's termination, yes: that absolutely should have been investigated. I was only 6 years old at the time; so I doubt that I was calling for investigations. The Department of Justice did investigate. I don't know if there was a Congressional investigation as well, but one would have been justified.

Personally, I don't think that President Carter intended to obstruct justice, but there certainly was ample reason for suspicion.

(Deleted and reposted to correct typo.)
 

Our posts crossed in the ethernet. I'm sure you will let me know where we still disagree.

preogative = prerogative
 

Maybe I'm not following your point, but I checked Wilma Lewis' bio as she is the first on the list. But she was not fired mid-stream. Or are you saying that the person she replaced was "fired"?
 

Charles: That, at the very least, fits YOUR criteria of "reasons to suspect that U.S. Attorneys were fired to obstruct justice" correct?

Incorrect. As mentioned in the last post, Jay Stephens was fired when President Clinton replaced ALL the U.S. Attorneys at the start of his administration.

You've offered absolutely no reason to suspect that Jay Stephens was singled out for special treatment because he was prosecuting a Democrat.

Can you provide one?

Charles: (and I still don't see how you are going to argue the President gets one free shot at what you are NOW calling "improper firings")

Under the current system, Presidents ordinarily replace all or most of the U.S. Attorneys at the start of the Administration. During an Administration, however, removing a U.S. attorney is unusual. They are ordinarily removed only for cause.

Replacing all the U.S. Attorneys at the start of an Administration is not, at all, suspicions. Replacing a select number of U.S. Attorneys in the midst of an Administration -- not for cause -- is highly suspicious.

(I'll respond to the other names you threw out in a subsequent post. Frankly, I have no idea who they all are without a bit of research.)
 

Sorry, Mike, those are dates of NEW nominations of U.S. Attorneys Clinton replaced after his re-election -- I see that I already had this conversation once with QuiteAlarmed and PMS_Chicago back the end of May re: Goodling and Immigration Judges too. You can easily verify anyone's party registration, e.g. www.voterlistsonline.com (although Arizona and Pennsylvania records cannot be directly downloaded). None of those replacement U.S. Attorneys were registered Republicans -- IMAGINE THAT!!!
 

Again, QuiteAlarmed, I don't see how you are going to argue the President gets one free shot at what you are NOW calling "improper firings" beginning or end of his term.
 

Replacing a select number of U.S. Attorneys in the midst of an Administration -- not for cause -- is highly suspicious.

Great -- I just gave you 34 "highly suspicious" Clinton replacements then.
 

Recount: 32.
 

Here's Wilman Lewis's bio: http://www.crowell.com/Professionals/Professional.aspx?id=133
 

Wilman = Wilma

I'm going to slow down now . . .
 

charles Great -- I just gave you 34 "highly suspicious" Clinton replacements then.

Only if they were fired (i.e., forced to resign) not for cause.

Can you tell me that every person in that list was fired and it wasn't for cause? Otherwise, you have no reason to be suspicious.

I'm not going to waste my timing researching each of them if all you did was spit out a list of every U.S. attorney replaced during the Clinton Administration.

The onus is on you to provide some reasonable basis for suspecting an improper motive. If you do, then I'll likely agree that it should have been investigated.

Were any of them in the midst of high profile investigations of members of the President's party?

Did any of them resist pressure to bring baseless prosecutions beneficial to the President's party?

If so, which ones and what exactly are your suspicions?
 

charles: Again, QuiteAlarmed, I don't see how you are going to argue the President gets one free shot at what you are NOW calling "improper firings" beginning or end of his term.

Again, charles, under the current system, Presidents ordinarily replace all or most of the U.S. Attorneys at the start of the Administration. During an Administration, however, removing a U.S. attorney is unusual. They are ordinarily removed only for cause.

Replacing all the U.S. Attorneys at the start of an Administration is not, at all, suspicions. Replacing a select number of U.S. Attorneys in the midst of an Administration -- not for cause -- is highly suspicious.
 

LOL -- Wilma Lewis replaced Eric Holder (who had been nominated by Clinton in 1993 -- your "free shot" replacement above). Holder was indeed investigating Hillary Rodham Clinton’s top campaign aide, Ira Magaziner, among other Democrats -- BINGO!!!!
 

Charles,

Eric Holder was promoted in '97 to Deputy Attorney General...

Whoops.
 

Looks like Eric Holder wasn't quite the "bingo" that you thought, Charles.

Remember, its only suspicious if the U.S. Attorney was fired (i.e., forced to resign) not for cause. That's what happened with all of the U.S. Attorneys involved in the current scandal.

Do you have any others?
 

Oh, so obstruction of justice is NOT your primary concern then? You are now more concerned whether it involved lateral vs. horizontal job moves (discounting, of course, the one "free shot" you think every President gets regardless of whether that obstructs justice too)? I will have to go back and re-read your posts in which you claimed "nothing remotely similar to the Bush Administration's mid-term mass U.S. Attorney purge happened" (despite 32 names I have already given you). My bad.
 

Of course, it wasn't also possible that Holder got the Deputy Attorney General position in order to keep him quiet, right?
 

Charles,

C'mon. You got exposed. You were quite certain that Holden had been removed from a gov't position. Instead, he gets promoted. Now it's a newly concocted scheme that complete ignores the ethical improprieties for Holden if such a scenario occurred.

Accept that you got exposed, concede the point and move on...
 

Charles,

You might also concede that you have no clue whether any of the names you listed had any shenanigans attached. Just listing 32 names of folks that were no longer US Attorneys is pretty thin...
 

Charles, if you keep changing your criteria, no one's going to be able to answer your questions.

Oh.....
 

I knew that Eric Holder got the Deputy A.G. job. My posts above still meet QUITEALARMED's criteria: "During an Administration, however, removing a U.S. attorney is unusual." It's not MY criteria. I personally think that political appointees can be fired for political reasons, or for no reason at all.

Back on topic re: Executive Privilege:

In U.S. vs. Nixon, the Court rejected Nixon's claim because Executive Privilege "must yield to the demonstrated, specific need for evidence in a pending criminal trial." Recall also the issue at the time was a PROSECUTOR'S (and grand jury) access to specific recordings Nixon had made in order to prove that criminal case.

In Clinton's case, the Court found that Executive Privilege (typically seen as discussions, advice, etc. that the president receives in the course of his official duties) did not extend to precluding his advisers from testifying about a non-official matter (especially when encouraging his mistress to lie to a grand jury) again with a PROSECUTOR (and grand jury).

I think Harriet Miers (as White House COUNSEL) is a slam dunk, but even if you look at the subpoena sent to the White House yesterday, it is quite clear that it fails to match either of these cases. It is not a limited subpoena for specific evidence in a criminal trial. And it certainly related to the official business of the president. A copy of the subpoena is on the Washington Post's web site. It is quite clear that the request is for a huge swath of internal deliberative documents that amount to nothing else bu a fishing expedition. This is not a targeted subpoena for specific evidence but the kind of broad demand for materials that NO Administration would accept.

Among other things, it calls for:

A - All documents from September 11, 2001 to the present constituting the President’s authorization or reauthorization of the warrantless electronic surveillance program

B - All documents from September 11, 2001 to the present containing analysis or opinions from the Department of Justice, the National Security Agency, the Department of Defense, the White House, or any other entity within the Executive Branch on the legality of, or legal basis for, the warrantless electronic surveillance program, including documents that describe why the surveillance at issue should not or could not take place consistent with the requirements and procedures of the Foreign Intelligence Surveillance Act (FISA)

C - All documents from September 11, 2001 to the present, including orders, decisions, or opinions of the Foreign Intelligence Surveillance Court (FISC), and pleadings submitted to the FISC, that reflect communications with the FISC or any FISC judges about the warrantless electronic surveillance program, containing legal analysis, arguments, or decisions concerning the interpretation of FISA, the Fourth Amendment to the Constitution, the Authorization for the Use of Military Force enacted on September 18, 2001, or the President’s authority under Article II of the Constitution;

D - All documents from September 11, 2001 to the present that reflect, discuss, or describe agreements or understandings between the White House, the Department of Justice, the National Security Agency, or any other entity of the Executive Branch and telecommunications companies, internet service providers, equipment manufacturers, or data processors regarding criminal or civil liability for assisting with or participating in the warrantless electronic surveillance program.
 

Charles:

Please do go back and read my posts as you indicated you would.

I trust that, when you do, you will find that my position throughout this discussion has been consistent.

The circumstances create ample reason to suspect that the Bush Administration fired the U.S. Attorneys to obstruct justice.

Those circumstances are:

1. The U.S. Attorneys were fired (i.e., forced to resign).

2. The firings were unusual in that they occurred mid-Administration (i.e., they were not part of the ordinary replacement of U.S. Attorneys that occurs at the outset of all Administrations).

3. The firings were not for cause.

4. At least one of the U.S. Attorneys was involved in a high profile investigation of members of the President's party and other U.S. Attorneys had been pressured to bring baseless prosecutions that would have benefited the President's party.

When these circumstances conjoin, I think any reasonable person would conclude that an investigation is warranted.

When the Administration fails to provide even the most basic information about who chose the U.S. Attorneys for termination and why those U.S. Attorneys were chosen, then I think any reasonable person would conclude that further investigation is warranted.

It is possible that no wrongdoing occurred here. We won't know until the investigation is complete, and that won't happen until this Administration is forced to stop stonewalling.
 

charles: I knew that Eric Holder got the Deputy A.G. job. My posts above still meet QUITEALARMED's criteria: "During an Administration, however, removing a U.S. attorney is unusual."

Obviously, it does not meet my "criteria." Eric Holder was not "removed," i.e. fired or forced to resign. He was promoted within the Department. I sincerely doubt you mean to suggest that promoting Holder to Deputy Attorney General might have obstructed the investigation of Ira Magaziner. If you were aware that Holder was promoted within the Department, then it is passing strange that you nonetheless declared such a blatantly falacious argument a "bingo".
 

So, I guess that was some different QuiteAlarmed who was quite alarmed over: "Replacing a select number of U.S. Attorneys in the midst of an Administration -- not for cause -- is highly suspicious." I gave THAT QuiteAlarmed 32 such replacements.
 

If this is the REAL QuiteAlarmed posting now, and not the Invasion of the Body Snatchers "QuiteAlarmed" what is your definition of:

REPLACED
 

Charles,

I actually thought you might be somewhat reasonable, but it's clear that you are not. You know very well that promoting and replacing connote two very different meanings. Not to mention that the context in QuiteAlarmed's reference to "replacing" USA's is clear.
 

O.K., I have now reviewed each and every post, and it seems as if QuiteAlarmed meant to use the words "FIRED WITHOUT CAUSE" instead of "replaced", "removed", "terminated", "purged", and "released" is that correct?
 

This is a disappointing post in what has become for me a disappointing blog by some of the supposed leading minds of the legal community. Here I have regularly read posts disparaging the U.S. Constitution, its formers and people that hold both in high regard.

The problem with that regularity, especially in light of the obvious nature of the people currently involved in interpreting and effecting the words and, dare I mention, the ideals of the constitution is that it becomes apparent that the railing against the constitution is very much akin to someone screaming at a piece of paper, as if that sheet of pulp should somehow provide some righteousness for our times. A faith based insanity against faith in a jewel of reason in a time when no reasonable reason is allowed to exist.

In this post you pay homage to one Paul Clement, "Acting AG." (That name has a similar ring to "Treated as" AG.) "Like most of Paul's work, it is a serious and substantial argument.." Deferential words directed towards someone of questionable merit deserving of deference. Yet this blog has little hesitation in denouncing the formers of this nation.

As a lesser 'distinguished' legal mind has pointed out elsewhere, Clement has a fundamental conflict of interest in this matter.

http://thenexthurrah.typepad.com/the_next_hurrah/2007/06/freds-fuck-you-.html

Clement, in this post here, is presented as reasonably defending what my lying eyes perceive as a monumentally corrupt group of individuals that has done enormous damage to this nation over the last few years. The damage isn't only to this nation. There is the blood of hundreds of thousands of people also involved. Paul Clement is working to protect these people from any attempts to see, in light of strong indications of criminal behavior, what some of their actions might have been.

Yet Paul Clement, to whom you show such deference, is also the person in charge of investigating some of these same possible criminal activities. He is both investigator (and laughably, possible prosecutor) and defender against investigation. And he's not claiming some jurisdictional priority. He's claiming no right of investigation, apparently including his own since this Bush-Cheney group of malefactors has ended internal investigations with as little as denying security clearances.

Clement has extended himself in a fundamentally corrupt manner and you chose to ignore that fact and not mention it here.

This blog reminds me of the Ron Suskind description of a conversation he reportedly had with Karl Rove.

..................................................
The aide [reportedly Rove] said that guys like me were "in what we call the reality-based community," which he defined as people who "believe that solutions emerge from your judicious study of discernible reality." I nodded and murmured something about enlightenment principles and empiricism. He cut me off. "That's not the way the world really works anymore," he continued. "We're an empire now, and when we act, we create our own reality. And while you're studying that reality — judiciously, as you will — we'll act again, creating other new realities, which you can study too, and that's how things will sort out. We're history's actors … and you, all of you, will be left to just study what we do."
..................................................

Too much of what I read here is analysis of bullshit legal droppings that will only be replaced by other bullshit legal droppings when the next politically motivated judicial decision is handed down. That has been apparent for years and was blatantly obvious in 2000 when this abomination of a group, Bush-Cheney, was forced on this nation by the "Supreme" Court. Now with two more political hacks on that court the meaning of the constitution will be whatever the duck hunt arrangers decide - so long as the duck hunt invitations continue.

And you here keep screaming about the constitution, praising people like Clement and analyzing minutiae of bullshit. Rove and Cheney must be laughing their asses off while Bush rides his bike. All well protected from any consequences of their malfeasance by people like Clement.
 

Mike:

Had you read my posts on the "Is Trojan Advocating the End of Humanity?" thread, you would have seen that no one who attacks the "faith based insanity" could consider me reasonable : )
 

Charles:

I trust that anyone fairly reading my posts in this thread will see that my position has been consistent throughout. I find your suggestion to the contrary -- arguing that I was inconsistent because I did not feel the need to spell out my position in every single post -- extraordinarily weak, and I trust that other readers will as well.'

The U.S. Attorney scandal is about firings; that does not need to be spelled out in detail in every post for it to be understood by honest readers.

Consequently, I am sadly convinced that you have no interest in a serious discussion of this issue; so I see no value in devoting more of my time toward it.
 

O.K., bye-bye, I "release" you -- don't stay too alarmed.
 

JaO -- Beats me why Turley's notion would become irrelevant.

Sarah
 

Moving on, does anyone else think it is illegal to replace a U.S. Attorney because he was absent from his office while serving in the National Guard?
 

Sarah:

Take a look at my U.S. vs. Nixon and Jones v. Clinton post.
 

Sarah,

Turley was being interviewed about the subpoenas regarding the surveillance program, which he said might involve criminal or impeachable offenses on the part of the President. He made no such comment about the U.S. attorney scandal or those subpoenas, and he was not even being interviewed on that subject.

There may be common issues involved in both cases, but I have not seem Turley articulate them. I don't think we can assume he would generalize as you do. Maybe he would, maybe not.
 

QuiteAlarmed said...

Charles: Which U.S. Attorneys do you suspect were fired improperly in the Clinton and Carter Administrations? Please provide names and the improper reasons you suspect.

The stink during the Clinton Administration was that the US Attorneys in change of Arkansas and Illinois where investigations of the Clintons and Rostenkowski were removed and replaced with more friendly prosecutors. Of course, there was no way to be sure because Clinton fired and replaced them all.
 

That's O.K. though Bart, as a "free shot" one-time only, obstruction of justice.
 

And, when Rostenkowski STILL got convicted, then Clinton just pardoned him.
 

"Bart" DePalma:

The stink during the Clinton Administration was that the US Attorneys in change of Arkansas and Illinois where investigations of the Clintons and Rostenkowski were removed and replaced with more friendly prosecutors....

Oh, sure, compared to rabid Republican prosecutor Charles Banks, Kenny Starr was just a "harmless little fuzzball"....

But look, over there!, it's Clinton's penis, Clinton's penis!!!....

Cheers,
 

Charles:

Moving on, does anyone else think it is illegal to replace a U.S. Attorney because he was absent from his office while serving in the National Guard?

Yes. See here for more on the hypocrisy.

You may insist that Iglesias wasn't in fact fired because of his service duty and that they just used this for an excuse, and so in fact the firing was legal, but why would the maladministration insist that they had fired him illegally?

Cheers,
 

According to the post by Constitutional Lawyer on that TPM thread, April 5, 2007 at 10:26 PM, it was not against the law to fire Iglesias based on his military commitment:

"While I have no sympathy for the AG and his handling of this matter, this particular claim--that a US Attorney can pursue statutory rights (like USSERRA) to challenge his removal--does not even pass the laugh test. US Attorneys are appointed by the President with the advice and consent of the Senate and are "officers of the United States" under Article II of the Constitution. The President has unlimited power to remove such officers at will and it is well established that Congress (and the courts) cannot interfere with the exercise of that power. Therefore a US Attorney cannot assert a right created by Congress (i.e. USERRA) to prevent their removal by the President. TPM Muckraker should not be snookered into giving this one any credence."
 

The rest of the comment from Constitutional Lawyer:

The real story here has nothing to do with the controversy over Mr. Iglesias' removal. Instead the story is how the discredited head of the Office of Special Counsel (Scott Bloch) has ginned up this absurd theory and solicited Mr. Iglesias to file a complaint to protect Mr. Bloch himself from an on-going investigation of his own serious misconduct. He has done so to create a situtation where it would look like retaliation if the Adminstration sought to take action against Mr. Bloch himself, on the basis of the findings of that investigation.

Charles, your support appears to state that the incorrect theory was started by other the Bush administration officials to cover themselves for other wrongoing. They can't keep themselves straight due to partisan interest, blatant self-interest, hidden self-interest, paid influence, and shameless pandering. Thanks for the reference, Charles. Will your team ever resume doing anything moral, legal, or ethical?
 

That's right -- the WHITE HOUSE was behind the "it's against the law to fire Iglesias based on his National Guard service" false flag operation -- don't forget that Bush personally planted demolitions at the WTC and Rove has a giant laser in space that creates hurricanes. I mean, come on!!
 

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