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Why Haven't We Written About the US Attorneys' Story?:
In an unrelated comment thread, anonymous commenter "CrazyTrain" writes:
I'd like to see a study on why the most read legal blog on the internet has not once mentioned the US Attorneys' scandal. This blog even includes ex AUSA's. Amazing. I used to think you guys were somewhat nonpartisan but now you guys just look like hacks. No one here is "obligated" to write about any topic of course, but the failure to write about a topic is fair game to judge one's views, and the fact that not one post here has been devoted to this very important issue in the legal community evidences the hackery of the writers here.
  First, I would like to clear up something: Of course we are all political hacks! Our secret trick is that we alternate which side to spin: sometimes we are political hacks for the right, and sometimes we are political hacks for the left. Naive readers occassionally mistake this for principle, but I trust the more sophisticated see it as the randomized hackery it truly is. In any event, a great rule of thumb is that our silence means that we are secretly conspiring with your enemies to keep stories out of the public eye. Remember, if a legal event isn't being blogged about at the Volokh Conspiracy, it just didn't happen.

  On a more serious note, I haven't written about the U.S. Attorney's story because I'm having a hard time figuring out just how big a deal it is. Parts of it are obviously very troubling: I was very disturbed to learn of the Domenici calls, for example. More broadly, I have longrunning objections to the extent to which DOJ is under White House control, objections that this story helps bring to the fore (although my objections are based on my views of sound policy, not on law).

  At the same time, several parts of the story seem overblown. U.S. Attorneys are political appointees who serve at the pleasure of the President, and the press seems to overlook that in a lot of its reporting. Also, I know one or two of the Administration figures named in some of the stories, and based on my knowledge of them and their character (although no secret details of the story — I have not spoken with anyone about it) I have a feeling that they're getting a bad rap.

  So in the end I don't quite know where I come out based on what we know. Without knowing where I come out, I don't feel I have much helpful to add. I realize that this may mean I am missing a big story. Perhaps this will prove to be a simply huge scandal, and in time it will seem odd that we weren't all blogging about it. But I don't know what I'm supposed to do when I read a story and I'm not sure what to make of it.

  In any event, readers such as CrazyTrain who are sure are about this story are welcome to explain why (politely, of course) in the comment thread.
davidbernstein (mail):
For my part, I just don't find the story interesting enough to expend the amount of time it would take to get knowledgeable enough to say something beyond the obvious.
3.13.2007 3:16pm
davidbernstein (mail):
[Especially given that my knowledge of what U.S. attorney do, and how and why they do it, is essentially zero, as is my knowledge about how and why they are usually selected and fired.]
3.13.2007 3:21pm
BobNSF (mail):
Attorney General Gonzales is on CNN (and other cable news shows, I would imagine) right this very minute...
3.13.2007 3:22pm
BobNSF (mail):

...as is my knowledge about how and why they are usually selected and fired.


You and Alberto, too, apparently.
3.13.2007 3:24pm
abean:
Yeah. When the Clinton administration did this, I thought it was bad policy--even bad taste, but I wasn't fervent about it.

So far this 'crisis' is much more selective, which raises two possibilities: either the firings were targeted and vindictive or they were targeted and appropriate. Only the latter is cause for concern but thus far very little evidence has been presented and can be objectively relied upon. In effect, all we know for sure is that the dismissals too place.

But in that regard, these are political offices and some deference is deserved to political considerations--of course there are limits.

I'm sort of happy this subject hasn't gotten much attention on this blog. For one, there isn't much substance to talk about. For two, people who have already gotten angry and overtly disturbed by these events appear to me to be overreacting.

Indeed, I would say I'm feel a little weary of this being yet another 'the boy who cried wolf'. People have developed many _excessive_ claims to dig into the present administration. This gets quite tiring to hear when time after time the facts do not support the strength or fervor of the charge.

Please stick to the many factual failings of the administration: incompetent war planning and credulous acceptance of poor intelligence... but then we all know about those too, so please don't waste any ink on them either.
3.13.2007 3:31pm
Anderson (mail):
Also, Josh Marshall basically owns this story, so anybody else would be playing catch-up.

As I was saying over at James Joyner's place, the discretion to fire isn't the issue. I see two issues:

(1) The Senate cleverly gave up the confirmation check on the President's power to hire &fire these attorneys. The present inquiry is warranted as relevant to whether or not that was such a great idea.

(2) Regardless of anything else, if Gonzales et al. lied under oath on very material issues, which it seems he may have, then there's a problem.
3.13.2007 3:34pm
anonVCfan:
I hope "CrazyTrain," "Visitor Again" et al. will enlighten us.
3.13.2007 3:35pm
Randy R. (mail):
If it's such a non-story, then why is there is a press conference from Gonzales?

Here's a story -- it's about lying to congress under oath. He said that the decisions were not political, yet in fact they were, with Rove and Bush and Miers intimately involved in the process.

I understand that it is no longer fashionable to be worked up about lying to congress or a grand jury under oath (at least not as long as you are a Republican). Obviously, if Alberto had lied to congress about having sex in his office, then there would undoubtedly be a brou-haha, but as an American, I do think that charges of perjury are serious enough to warrant further investigation.
3.13.2007 3:35pm
King:
Orin:

Yes, US Attorneys serve at the pleasure of the President, but I think that misses the point (i.e, the reaon why this truly is a big story). Here's what makes it interesting to me: the President's right to remove a USA for any reason (or, in theory, no reason) does not give him either (A) political cover, in the event his reasons turn out to be less than laudable, or (B) a defense to a claim that he participated in a scheme to remove those USAs who refused to cooperate with Republican lawmakers' desires to gin up "voter fraud" investigations in the absence of any evidence. By comparison, an employee at-will can, nevetheless, bring a Title VII discrimination case -- he or she can be fired for any reason or no reason, but not for an illegal reason.

At this point, "story A" is all but admitted; indeed, after several days of offering inconsistent and mutally exclusive explanations of how and why this happened, DOJ seems to have settled on the defense that this was mere politics. But the evidence is mounting that "story B" is closer to the truth. I am certaily not calling anyone here a hack, but I will say that when the AG's chief of staff suddenly resigns, something fairly big is going on and your readership is interested to know what you all think.

King
3.13.2007 3:38pm
Jonathan H. Adler (mail) (www):
My reasons for not blogging about this story are quite similar to Orin's. I will say, however, that if the AG lied to Congress under oath (and I mean actually "lied," and not simply said something that turned out to be untrue), then I believe this would be a very serious offense. It still might not be worth blogging about, however, as I suspect others (Marshall, Kleiman, etc.) would be all over it.

JHA
3.13.2007 3:40pm
Anderson (mail):
Also, there is something to be said for the VC's running an open thread on topics likely to be of interest to the readers, even if no poster has anything to say about it. The VC readers, &perhaps even the posters, might be interested in what some commenters have to say. (Commenters other than myself, that is.)
3.13.2007 3:41pm
Jimmy in Texas (mail):
Orin Kerr

"First, I would like to clear up something: Of course we are all political hacks! Our secret trick is that we alternate which side to spin: sometimes we are political hacks for the right, and sometimes we are political hacks for the left. Naive readers occassionally mistake this for principle, but I trust the more sophisticated see it as the randomized hackery it truly is. In any event, a great rule of thumb is that our silence means that we are secretly conspiring with your enemies to keep stories out of the public eye. Remember, if a legal event isn't being blogged about at the Volokh Conspiracy, it just didn't happen."

I knew it, I knew it, I knew it! No point in reading on...
3.13.2007 3:46pm
K Ashford (mail):
Another unsavory angle to the story is the use of the WH of a relatively obscure section of the Patriot Act to remove and replace these AGs. The AGs were rated by the DOJ along such factors as "loyalty to the Administration", and then the Patriot Act was used to effect the ouster of certain AGs who "performed" badly.

Criminal? Unlikely. But while not contrary to law, it does add credence to the oft-heard criticism that this Administration has taken advantage of the War on Terrorism (in this case, the Patriot Act) to further its own political agenda.
3.13.2007 3:53pm
Jonathan H. Adler (mail) (www):
Let me add one other note. There is a certain randomness to what we do and don't blog about. In my case, not only do I have to be interested in blogging about something, but my interest has to coincide with opportunity. As it happens, I only blog about 20-30 percent of those things I would like to blog about because of various obligations, both professional and personal, that must take precedence. Moreover, those subjects that require additional research on my part -- such as the USA story -- are most likely to fall by the wayside, as the amount of time I need to have available to get up to speed is greater.

JHA
3.13.2007 3:53pm
Adeez (mail):
King, that is exactly what I thought when I kept reading comments about how they serve at the president's pleasure. Specifically, how when an employer is sued for something that seems on its face to violate Title VII or my state's human rights law, the employer's answer repeats "employee at will" ad nauseum.

I'm most definitely w/Crazy Train. I was waiting to see this story on this site since it broke a while ago. After all, it's a legal blog. Or at least a blog w/a lot of lawyers and law professors with stories about complex legal issues. There're also threads that have nothing to do w/any of these. But that only makes this story's omission all the stranger. I point no fingers, but it definitely seems bizarre to me as well.

From what I gather, specific Congresspeople attempted to pressure specific AUSAs to prosecute their political enemies. The AUSAs refused, and they were fired. When this story broke, those accused claimed that the attorneys were canned b/c of poor performance. Yet, it was quickly revealed that their latest evaluations were Outstanding. If this were a Title VII case, summary judgment denied: time to go to a jury. Now, one may disagree w/some of the specifics I listed or my conclusion. But this is the gist of the story, and as such, it's surely worthy of a mention on this site.
3.13.2007 3:55pm
AppSocRes (mail):
When Janet Reno required every US Attorney to send her a signed letter of resignation did Volokh cover that. I thought that was a quite blatantly political message to send your staff and as far as I know it was the first time that stunt was pulled at DOJ. I'd also ask whether there ABC-NBC-CBS-NPR-NYT spent weeks covering this particular Clinton machination, but I already know the answer to that question.
3.13.2007 3:55pm
Anderson (mail):
When Janet Reno required every US Attorney to send her a signed letter of resignation did Volokh cover that.

A quick glance at the scope of the VC's archives might have helped you stop before writing that.

But regardless, that misses the point. In 1993, firing every USA would've meant having to get Senate confirmation of every replacement, in a process where the Senators from each state played a role in selecting the USA.
3.13.2007 4:00pm
Bruce Hayden (mail) (www):
As usual, everyone in the news is jumping to conclusions. There is some indication that this is mostly benign, or at least not the sort of mass firing that Bill Clinton did to get rid of the AK U.S. Atty. investigating him and his. Three of the eight are supposedly low performers, and of the rest, there is some suggestion that they weren't as agressive at pursuing voter fraud as the AG wanted.

Yes, this is a political issue because voter fraud is intensely political. And, yes, Justice may be pursuing Democrat party voter fraud more vigorously than Republican voter fraud. But just as the Administration may be suspect for pushing voter fraud investigations, Congress and the MSM may be equally suspect for trying to derail it by investigating these firings.
3.13.2007 4:07pm
Hoosier:
Hey, YEAH! You guy clearly are flaks for the White House, 'cause you haven't blogged this baby to death.

Also, you are OBVIOUSLY (Duh!) flaks for the Houston Astros, since you haven't addressed the question: Why didn't the Cubs seek to acquire speed at the top of the lineup during the off-season.

I guess if I want objectivity and intelliegnce (of both sorts) I have to go back to DailyKos.
3.13.2007 4:09pm
BobNSF (mail):

... and of the rest, there is some suggestion that they weren't as agressive at pursuing voter fraud as the AG wanted.


The AG has distanced himself from the process. Whoever had a problem with the performance of the fired USAs, it wasn't Alberto Gonzales.
3.13.2007 4:12pm
Steve:
It's amazing to see how many people are up in arms over Clinton replacing all the U.S. Attorneys at the start of his term (he replaced the Cabinet too! horrors!) without ever, apparently, stopping to wonder whether Bush did the exact same thing, and whether this might be par for the course when the White House changes hands.
3.13.2007 4:13pm
Gary McGath (www):
In 1993, not a single blog objected to Janet Reno's actions! Surely that shows how biased bloggers are.
3.13.2007 4:17pm
Dave Hardy (mail) (www):
At least at Interior, all appointed officials were expected to submit an undated letter of resignation after an election, even when the same fellow was re-elected and certainly when the same party kept the White House (i.e., Reagan-Bush I). The jobs were political plums, handed out to repay support in the last election, so after re-election you had a new bunch of supporters to reward, and the other guys had had their four years.

If they've turned to actually rating performance and loyalty to the administration, that's actually a step up from the usual standard, which was more like "do we owe him any favors, and is there someone we do owe favors to who's suited for the job?"
3.13.2007 4:20pm
Abdul (mail):

Remember, if a legal event isn't being blogged about at the Volokh Conspiracy, it just didn't happen



Ahh, truth in advertising. This blog is called the Volokh Conspiracy after all.
3.13.2007 4:21pm
Mark Field (mail):

Three of the eight are supposedly low performers


Which doesn't explain the other 5.


and of the rest, there is some suggestion that they weren't as agressive at pursuing voter fraud as the AG wanted.


As I understand it, the complaints -- at least in one case -- did not originate with the AG, but with local R members of Congress. Those members clearly wanted alleged voter fraud pursued for partisan purposes. When the Attorney resisted, complaints were made to Rove and only then was Gonzales told what to do. In short, the decision was political from top to bottom, and in a particularly offensive way. Lying about it afterwards just made it look worse.
3.13.2007 4:23pm
MnZ (mail):

It's amazing to see how many people are up in arms over Clinton replacing all the U.S. Attorneys at the start of his term (he replaced the Cabinet too! horrors!) without ever, apparently, stopping to wonder whether Bush did the exact same thing, and whether this might be par for the course when the White House changes hands.


I think standard practice had been to allow the sitting U.S. Attorney's complete their 4 year terms.
3.13.2007 4:29pm
Brett Bellmore:
"without ever, apparently, stopping to wonder whether Bush did the exact same thing,"

Depends. By, "Bush did the exact same thing", do you mean that Bush with unprecidented haste demanded the resignation of all but one US attorney, accepted those resignations in the case of a few who were investigating things he'd done previous to being elected, and kept on the rest until they could be replaced on a more normal schedule? Because that's the specific allegation as to Clinton's mass firing, whether or not it's true.

I don't think Bush did, but I could be wrong.
3.13.2007 4:34pm
josh:
"At the same time, several parts of the story seem overblown. U.S. Attorneys are political appointees who serve at the pleasure of the President, and the press seems to overlook that in a lot of its reporting."

I don't think it's an issue of the press overlooking the president's constitutional authority. The story has simply snowballed from allegations of individual legislators leaning on USAs for political purposes into some level of WH complicity.

This makes the story as newsworthy for its political fallout as it does for any question of legal impropriety. My guess is that some commenters are screaming about Clinton's treatment of USAs because they learned about it from (egad!) the "Mainstream Media"
3.13.2007 4:35pm
tim maguire (mail):
Adeez, I also agree with King's version of events, but crazytrain goes too far in suggesting that if a blogger doesn't blog about something important, then you are free to draw conclusions about that blogger's politics.

Lawyers specialize. No matter how good they are, there are vast swathes of the law they know little about. It is perfectly reasonable (and responsible) for the Conspiracy bloggers to avoid this issue if they don't feel they can do it well.
3.13.2007 4:37pm
Alan P (mail):
In the spirit of everything old is new again, see this story from 1978 about a White House firing of a US attorney



Marston Affair
3.13.2007 4:41pm
Anon Y. Mous:

Anderson:
Also, there is something to be said for the VC's running an open thread on topics likely to be of interest to the readers, even if no poster has anything to say about it.


Every once in a while, one of the conspirators will start an open thread - not on a topic, but just an open thread. I think that's kind of cool, and it's my suggestion that one be established each and every day.

Although, that may make it more difficult to manage the conspiracy...
3.13.2007 4:44pm
Kovarsky (mail):
Also, you are OBVIOUSLY (Duh!) flaks for the Houston Astros, since you haven't addressed the question: Why didn't the Cubs seek to acquire speed at the top of the lineup during the off-season.

Why does speed at the top of the lineup matter when everyone knows the problem with the cubs is that wood and prior are destined to injure themselves making ham sandwiches.
3.13.2007 4:51pm
Justin (mail):
There's just something blaise about this scandal. Something the Bush administration has dome and the highest ranking person that should legitimately be impeached is the Attorney General? ::Yawn::.

Look, if you didn't think that torturing, lying about the reasons for going to war, or leaking a covert agent's identity in order to discredit a war critic (not to mention the complete cluster**** that was the federal response to Katrina), then this is hardly going to raise an eyebrow.

Contrary to Bruce Hayden's somewhat deceptive spin, the allegation appears to be that:

1) US Attorneys were encouraged to go after Democrats (specifically, not as sort of a general "go after politicians"), particularly in states where the political impact would help in elections. US Attorneys did so, to the degree that 90% of their investigations were into Democrats (there of course lies the implausible, but not impossible, scenario where such a percentage was due to random chance or that Democrats are just genetically more likely to be corrupt or whatnot, but there does seem to be some res ipsa loquitor value there).

2) Some US Attorneys were fired for failure to support, or to obtain the full political benefit of, corruption inquiries into Democrats.

3) One US Attorney (Carol Lam) was fired for pursuing a corruption inquiry into California Republicans and possible connections to people in the Bush administration. This seems to be the most serious, but hardly the most reported upon, allegation.

4) Several US Attorneys may have been fired in order to reward loyal (in all sorts of legal and perhaps illegal-quid-pro-quo ways) Republicans. This seems to be the least serious charge.
3.13.2007 4:52pm
Kovarsky (mail):
brett,

you're ignoring the fact that this is a mid-term appointment.
3.13.2007 4:53pm
Justin (mail):
BTW, although there aren't enough facts out there yet, for someone like me who has a legal interest in public corruption, this is some *very* fascinating stuff. It's just that while this is hitting the whole "new stuff to write about" part of my brain, its not hitting the "OMG I Can't Believe The Bush Administration Would Do This" type thing. The New Hampshire phone scandal should have already awaken people as to how this administration dealt with Republican scandals. The only thing shocking here is that they fired Republicans, that some of the fired Republicans are fighting back, and that the White House smear efforts didn't work.
3.13.2007 4:55pm
Kovarsky (mail):
Justin,

it's my understanding from people close to the admin that Lam had it coming for awhile because of failing to prosecute immigration cases in san diego, of all places.

on the other hand, the idea that "these are just political appointments" has become a little over-used. yes, they are "political" in the sense that these people are expected to pursue the presidents law enforcement objectives, but they are not "political" in the sense that they are to aid or slow prosecutions of investigations involving political candidates.
3.13.2007 4:58pm
Ex-Fed (mail):
If memory serves Reno's demand for the resignations of all U.S. Attorneys was within a couple of months of Clinton taking office. In other words, Clinton was replacing Bush I's political appointees with his own. Now, I know there are allegations this was done to tank certain investigations, but is it remarkable? I guess we'd have to go back to see how Reagan treated Carter-appointee USAs.
3.13.2007 4:59pm
Justin (mail):
Brett, Clinton was also accused of murdering 40 people. The problem with the Clinton allegations is that there really lacked all that much smoke. Over 100 US Attorneys were fired, with only two that there was any concern about (the Arkansas and DC US Attorneys). There was no evidence that the firings were political in nature. There were no explnations that were proven false. There was neither the smoke here (the 90%, the concentration of firings to key political disputes, and the off-the-record statements that Karl Rove said he would get rid of the Washington US Attorney General for failing to protect Rossi) nor the fire (the Domineci and Wilson ethical (criminal?) violations, the disproven explanations by the Department of Justice).
3.13.2007 5:01pm
Anderson (mail):
its not hitting the "OMG I Can't Believe The Bush Administration Would Do This" type thing.

Other than full-dress Satanism, I'm not sure what *would* hit that, any more.
3.13.2007 5:03pm
Justin (mail):
"Justin,

it's my understanding from people close to the admin that Lam had it coming for awhile because of failing to prosecute immigration cases in san diego, of all places."

Kovarsky,

Your understanding is true to the degree that this is the defense provided by the Department of Justice. There has been some dispute about that (notably, a letter from the Department of Justice a few months before to Senator Feingold touting Lam's prosecution of illegal immigrants). However, the allegation is clearly not Lam's failure to prosecute immigration cases, but Lam's continued investigation into the Cunningham affair.

I don't think there's as much evidence in either direction for the Lam case, as there is for, say, the Washington or New Mexico US Attorneys.
3.13.2007 5:03pm
Kovarsky (mail):
Justin,

No, I'm not saying that this is the official defense from the DOJ, I'm saying that people I trust very much are saying that off the record as well.
3.13.2007 5:07pm
BobNSF (mail):

Other than full-dress Satanism, I'm not sure what *would* hit that, any more.


Actually, I think it's rather stunning that they (at least claim to) have fired someone for poor performance. Certainly, that's a first!
3.13.2007 5:07pm
MnZ (mail):

I think standard practice had been to allow the sitting U.S. Attorney's complete their 4 year terms.


Let me correct that. Standard practice appeared to be orderily appointing and confirming new attorney's to replace the outgoing attorney's.
3.13.2007 5:13pm
Justin (mail):
I appreciate your view, Kovarsky, but you can appreciate how little weight you would give to an anonymous commenter citing unnammed sources in determining whether there was an actual contraversy or not.
3.13.2007 5:14pm
calmom:
If the U. S. Attorneys serve at the pleasure of the president, then they can be dismissed for any reason or no reason at all. There is nothing unconstitutional or illegal in dismissing the eight. It is a political appointment. Why is Congress so surprised that Republican appointees would be investigating Democrats? Isn't the newly Democratic Congress gearing up to issue subpoenas to investigate Republicans now that they have that power? The U. S. Attorneys are bound by the ethical obligations of all lawyers, but to expect a political appointee to not act in a political manner or to be dismissed for reasons of politics is naive.
3.13.2007 5:15pm
K Ashford (mail):
If one looks at the actual contemporaneous emails from the DOJ Chief of Staff who resigned yesterday (they're now publicly available), even HE acknowledge that the firings were not of the same kind done by Clinton and othes.
3.13.2007 5:20pm
Justin (mail):
Calmom writes:

"If the U. S. Attorneys serve at the pleasure of the president, then they can be dismissed for any reason or no reason at all. There is nothing unconstitutional or illegal in dismissing the eight. It is a political appointment. "

Michael Dorf wrote in a post on the subject:

What Tobias overlooks--and what I overlooked in my earlier post--is that the Constitution, not just politics, constrains the President's ability to fire government officials. For example, if Gonzales had fired one of the Eight because the U.S. Attorney had converted to Islam, that would have violated one or more of the Religious Tests Clause, the First Amendment's Free Exercise and Establishment Clauses, and the equal protection component of the Fifth Amendment's Due Process Clause. (Justiciability might present a problem for separation-of-powers reasons but that doesn't go to legality.) Whether firing a U.S. Attorney for his failure to bring partisan-politically motivated cases, or failure to dismiss other cases based on partisan political pressure, is another forbidden ground set against the background presumption of employment at will, is not entirely clear. It's possible that the Justice Department Eight were not entitled to keep their jobs, but that firing them as part of a plot to use the government's prosecutorial power for partisan ends--if that is what happened--violates criminal laws and/or constitutes an impeachable offense. If, for example, the President told the Attorney General to fire all U.S. Attorneys who were not disproportionately prosecuting corruption cases against Democrats rather than Republicans, that would seem a fairly clear violation of the President's duty to take care that the laws are faithfully executed."


I'm not sure how much I agree with either Dorf or calmom. In my view, impeachment is a political remedy, not a legal one - what's impeachable is what 51% of Representatives and 75% of Senators so decide.

Calmom continues,

"Why is Congress so surprised that Republican appointees would be investigating Democrats? Isn't the newly Democratic Congress gearing up to issue subpoenas to investigate Republicans now that they have that power? The U. S. Attorneys are bound by the ethical obligations of all lawyers, but to expect a political appointee to not act in a political manner or to be dismissed for reasons of politics is naive."

This is where I think Calmom might lose the support of most people. While Congressmen are inherently political, and they are political *appointees*, what calmom describes would be a travesty of the law, even if not outright criminal. It would also run into major constitutional concerns that would clearly jeopardize any of their indictments.

Certainly, the prosecutor following what calmom condones would be in violation of professional standards and subject to disbarment. Whether such behavior is also in breach of applicable criminal law is an interesting question that I would need to do some research on, but would gladly welcome assistance.
3.13.2007 5:27pm
Anderson (mail):
Actually, I think it's rather stunning that they (at least claim to) have fired someone for poor performance. Certainly, that's a first!

Right -- that was the first clue they were lying.
3.13.2007 5:29pm
DJB (mail):
I understand that it is no longer fashionable to be worked up about lying to congress or a grand jury under oath
When was it EVER fashionable? Didn't the overwhelming majority of Americans oppose the Clinton impeachment?
3.13.2007 5:33pm
Kovarsky (mail):
Justin I'm not anonymous (you know this), and what I can appreciate is that Lam's failure to proseucte those cases, a quite-openly announced objective of the administration, is well-documented. and i guess we're at an impasse because i'm not going to talk about the source of my information.

i'm not talking about any of the other prosecutors, just lam.
3.13.2007 5:43pm
Kovarsky (mail):
DJB,

Actually I think the difference is that a lot of americans didn't get worked up over lying under oath about a blow job, as opposed, to say, a war.
3.13.2007 5:44pm
Dick Schweitzer (mail):
Will someone post the exact questions and "sworn" replies made to and bt Gonzales that are the topic of "perjury, please. And do they relate to this circumstance?
3.13.2007 5:50pm
calmom:
None of the many articles have yet to point to anything illegal or unconstitutional that was done. If anyone knows of any authoratative source that can point to something illegal or unconstitutional in this story, I'll be interested.
3.13.2007 5:51pm
Apodaca:
Justin, since when does conviction in a Senate trial require a 75% supermajority?
3.13.2007 6:00pm
jim:
I understand that it is no longer fashionable to be worked up about lying to congress or a grand jury under oath


When was it EVER fashionable? Didn't the overwhelming majority of Americans oppose the Clinton impeachment?


It was possible to be very upset that the President lied under oath without feeling that impeachment was the correct response. I dare say I remember most Republicans being upset about Clinton's perjury, even if they weren't out for blood. Ah, those were simpler times were they not?
3.13.2007 6:08pm
Kazinski:
If there was any evidence the US Attorneys were fired inorder to derail any investigations, then heads should roll. But I haven't seen any evidence of that. If they were fired because they gave insignificant attention to complaints from Republican lawmakers about alleged illegal activity, then I think that is par for the course. For instance I've never seen any credible evidence that any underlying crime was committed in the Libby-Plame case, but it was determined to be in the public interest for a Special Counsel to do a thorough investigation to determine if any crime was committed.

I am absolutely positive that John McKay was fired in Seattle because he did not do a investigation of the 2004 Governers race in Washington, and I've got no problem with his being fired for sitting on his hands. It was in the public interest for a thorough investigation of the facts in order to determine if there was any crimes or voting fraud. If there was pressure to indict where no evidence of a crime was committed, then heads should roll. But as the Plame case showed, political pressure to investigate suspicious activity is par for the course in our system of justice.

So my bottom line is that killing investigations for political reasons is bad, and should be punished. Investigating people for political reasons when there is no evidence of a crime is bad and should be punished.
Political pressure to investigate situations where there are important public interests involved to make sure everything is on the up and up, and filing charges when warranted is good and how the system was designed to work.
3.13.2007 6:09pm
Andrew Janssen (mail):
This whole mess seems to illustrate two basic truths about scandals:

1. Appearances can be more important than realities; and

2. It's not what you did that gets you in trouble; it's what you did trying to cover up.

DOJ's actions created an appearance of impropriety, and their attempts to explain themselves just seem to be reinforcing the belief that they wouldn't be trying so hard if there wasn't something to hide.

It sometimes seems like this administration has ridden the elevator of the Tower of Turd to the lowest subbasement, and still has its thumb on the down button.
3.13.2007 6:11pm
Brett Bellmore:
Justin, I'm more or less aware of what the allegations are. I'm just not sure what the evidence is that the allegations are true. That Democrats are automatically innnocent, and that people who got fired claimed to be wrongly so?

And, yeah, I'm aware that lots of charges were made about Clinton, some of them absolute dreck, some of them proven beyond any reasonable doubt, and most of them in the grey middle. You know, I *did* say that was the charge, "whether or not it was true". I don't know whether it was, but I do know that what Clinton was accused of isn't the exact same thing Bush did.
3.13.2007 6:12pm
Anderson (mail):
I am absolutely positive that John McKay was fired in Seattle because he did not do a investigation of the 2004 Governers race in Washington, and I've got no problem with his being fired for sitting on his hands.

Did you read today's story from the Seattle Times?

And you're still "absolutely positive"?
3.13.2007 6:16pm
calmom:
Are there going to be hearings on this? Are the fired U. S. Attorneys going to be testifying? They are all Republicans well connected politically, remember. How much damage to a Republican administration are they going to be willing to do. Their current legal jobs may be heavily reliant to Republican business clients.

How is the questioning going to go? "Did you, Mr. USA, not consider this to be sufficient evidence to bring a prosecution for voter fraud (waving some document showing Daffy Duck to be a registered voter)? What about this? What about this? The Republicans on the committee could make out a case for the uninvestigated voter fraud that would only make the Democrats look bad, since the allegations are that Democratic voter fraud wasn't prosecuted.
3.13.2007 6:19pm
Kazinski:
By the way if this is kind of replacement US Attorney we are getting then I wonder what all the fuss is about.
3.13.2007 6:23pm
uh clem (mail):
Required background reading from Jeralyn Merrit.

P.S. Anybody who's trotting out the "Clinton fired all the attorneys" meme gets an F for not doing their homework.
3.13.2007 6:28pm
Centrist:
Are there going to be hearings on this? Are the fired U. S. Attorneys going to be testifying?

Are those serious questions coming from someone who, in two prior posts, dismissed this incident as business as usual.
3.13.2007 6:35pm
Public_Defender (mail):
I had hoped to see comments from Professor Kerr because he takes a thoughtful and moderately pro-Government position on most criminal justice issues. To date, I have not seen a thoughtful defense of the Bush Administration's actions. If there was a defense, I thought I'd find it here. Maybe there just isn't a defense.

A commentator on National Review and a WSJ editorial have complained about Bush Administration incomptence in handling the firings. Another National Review commentator and some of the comments in this thread have pointed out that the Democrats can't yet prove corruption, but that only shows why further investigation is needed.

We need to see emails, phone logs, and documents, and then hear sworn testimony from the players. I hope the Democrats in Congress start that ball rolling soon.
3.13.2007 6:38pm
The General:
once again, the liberals are trying to gin up a scandal to hurt the Bush administration. that is not real news. None of these libs will bat an eye when President Obama or Mrs. Bill Clinton do the exact same thing. These are political appointees. It's perfectly acceptable if they're fired for political reasons. In fact, it should be expected. It's not like they are the WH Travel Office.
3.13.2007 6:40pm
uh clem (mail):


Are there going to be hearings on this? Are the fired U. S. Attorneys going to be testifying?

The hearings were last week. Some of the fired attorneys testified. Yesterday the WH released a document dump to try to explain their way out of it, but that only raised more questions than it answered. Today's presser was another attempt to talk their way out of it, but it didn't work. Expect to see more. Whether this one boils over or simmers down is anyone's guess at this point.
3.13.2007 6:42pm
Anderson (mail):
Bear in mind too that Gonzales has had a troubled relationship with the Senate. This affair may have a "last straw" quality that isn't apparent when it's taken in isolation.
3.13.2007 6:57pm
magoo (mail):
Mr. Gonzales is using the passive deflective subjunctive: "Mistakes were made."
3.13.2007 6:57pm
Kazinski:
Anderson,
I am absolutely sure that McKay was fired because Dino Rossi thought he was the victim of voter fraud, and the US Attorney stood by and watched as he was electorally mugged. As a matter of fact it was proven that the number of illegal votes from overwhelmingly Democratic precincts exeeded the margin of victory.
Here is an account that documents the illegal votes that gave the 2004 election to Gregiore. Was it criminal, I don't know, and if McKay did a thorough job, then I would know. It was unfair to Rossi, and it was unfair to Gregiore, and it was unfair to the voters. We deserved to know, and if McKay did his job we would. And I am not accusing McKay of being unethical, or biased, he saw his job differently than those that appointed him did, and he serves at their pleasure, their pleasure ended.
3.13.2007 7:02pm
Anderson (mail):
Was it criminal, I don't know, and if McKay did a thorough job, then I would know.

Um, no, you wouldn't, because since when does a U.S. attorney give a detailed report on an investigation that failed to turn up evidence of a crime?
3.13.2007 7:19pm
Apodaca:
Kazinski says:
Was it criminal, I don't know, and if McKay did a thorough job, then I would know.
Anderson has already linked to the story that rebuts this, but I guess it hasn't sunk in yet:
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.

[...]

McKay says he and four attorneys in his office worked closely with the FBI and the Department of Justice to monitor complaints of criminal wrongdoing.

Assistant U.S. Attorney Arlen Storm, who had received special Justice Department training on election crimes before the 2004 race, did the bulk of the day-to-day work. Floyd Short, the chief of the complex crimes unit, closely supervised Storm. Short also spoke regularly with Donsanto and others in Washington, D.C.

First Assistant U.S. Attorney Mark Bartlett and Jeffrey Sullivan, former chief of the criminal division and now McKay's interim replacement as U.S. attorney, also "were directly involved," McKay said.

Bartlett and Sullivan declined to comment because of Justice Department policies that prevent them from discussing a preliminary investigation, "especially one that did not result in a publicly filed court document," said Emily Langlie, a spokeswoman for the U.S. Attorney's office.

Short confirmed his involvement and said McKay was himself highly engaged on election issues.

[...]

Tom McCabe, executive vice president of the Building Industry Association of Washington (BIAW), contacted McKay's office in late 2004 or early 2005, alleging he had evidence of forged signatures on absentee ballots cast for Gregoire.

After talking to McCabe, McKay said, he called Mark Ferbrache, supervisory special agent at the FBI, and asked him to assign Special Agent Joe Quinn to review McCabe's evidence.

McCabe confirms he received a phone call from Quinn a few days later, and McCabe sent him documents supporting his forgery allegations.


Kazinski says, "if McKay did a thorough job, then I would know." If McKay did a thorough job and concluded that no prosecutable federal crime occurred, how exactly is it you'd know? One suspects that in Kazinski-speak, "thorough job" = "criminal charges brought regardless of merit."
3.13.2007 7:28pm
M. Simon (mail) (www):
Anderson,

Full dress Satanism, as you put it, is done without dress.

FYI
3.13.2007 7:33pm
M. Simon (mail) (www):
Public_Defender,

Wouldn't it be good to have facts? Like full disclosure of personel records - before deciding the merits of the case.

You know that sticky stuff. Evidence.
3.13.2007 7:37pm
M. Simon (mail) (www):
Evidently there is some evidence.
3.13.2007 7:41pm
Randy R. (mail):
"I dare say I remember most Republicans being upset about Clinton's perjury, even if they weren't out for blood."

And I dare say I remember most Republicans being upset because Oliver North was convicted of lying to congress, but were quite relieved to see that his conviction was overturned on what they usually regard is a 'legal technicality.'

As The General notes, any good republican will follow the line that there is nothing to see here, just move along. Just like tobacco CEOs who lie to congress, or a secretary of state who lies about WMDs, it's all okay.

Look, the Republicans would actually have a little more credibility on this issue if they zealously persecuted those who lie to congress regardless of their political affiliation.
3.13.2007 7:47pm
Pantapon Rose (mail):
Isn't the real story the degree to which these attorneys were prosecuting or not voting law violations? And, to what extent there have been violations in these states?
3.13.2007 8:04pm
DJB (mail):
Actually I think the difference is that a lot of americans didn't get worked up over lying under oath about a blow job, as opposed, to say, a war.
So why the surprise that they don't get worked up over somebody lying to a bunch of politicians? Oooo, Gonzales might have lied to Congress? So what, Congress lies to ME on a daily basis.
3.13.2007 8:06pm
Justin (mail):
"Isn't the real story the degree to which these attorneys were prosecuting or not voting law violations?"

No.

"And, to what extent there have been violations in these states?"

De minimis or none.
3.13.2007 8:06pm
Kazinski:
The story Anderson links to supports my contention 100%, McKay was fired because Rossi, and Doc Hastings were not satisfied with the investigation that McKay performed. Maybe he did do a preliminary investigation, it wasn't good enough for me either. If I had a voice I would want him fired, because there were illegal votes that decided an election, and a coverup of that fact. Evidently Rossi and Hastings felt the same way. And if a similar situation happens again then the next US Attorney better investigate and get the facts out to reassure the public that the governors race was not stolen.

Let me be clear here, I do not think that Democratic officials purposely stole the 2004 Washington State Governors election. I think through incompetence and sloth they let several hundred illegal votes through into the ballot boxes, then they covered up the fact. McKay did not see any overt criminal activity and let it go. That is what cost McKay his job and rightly so. I linked above the research that proves both the illegal votes and the cover up. The research was done by Stefan Sharkansky at Soundpolitics.com on his own time and meticulously documented. Sharkansky had to do it because McKay wouldn't.
3.13.2007 8:26pm
Baseballhead (mail):
McKay was fired because Rossi, and Doc Hastings were not satisfied with the investigation that McKay performed. Maybe he did do a preliminary investigation, it wasn't good enough for me either.

Well, shoot, if it wasn't good enough for Rossi and Hastings, then there must have been a coverup because, clearly, Rossi and Hastings wouldn't be biased in any way, would they? So they took their complaints to the AG and the WH and, boom! they get the type of USA who'll find what Rossi and Hastings want them to find. Sounds like justice to me.
3.13.2007 8:54pm
David Berke:
Kazinsky,

I have reviewed the cite you provided. As crushed as I am that certain people who were eligible to vote but did a poor job of filling out paperwork were nonetheless allowed to vote, I'm not sure how this article is relevant.

It doesn't document voter fraud or an intent to steal elections, only that a single county allowed votes to count without any attempt to ascertain what the vote itself would be. Thus, even if assumed to be 100% true (and there is no clear support), it says nothing about the political affiliation of those voters, or what happened in other districts.

How does that show an imperfect investigation into voter fraud?
3.13.2007 9:15pm
Falafalafocus (mail):

Look, the Republicans would actually have a little more credibility on this issue if they zealously persecuted those who lie to congress regardless of their political affiliation.


Interesting word choice.
3.13.2007 9:20pm
liberty (mail) (www):
Its obviously a very political story. For partisans its a big issue. If it turns out to be a truly big issue, then it will escape political boundaries. Until then, academics and specialists probably prefer to stick to interesting theory and analysis. Anyone who blogs quickly becomes surrounded by sharks who wait expectantly for them to jump on issues from one side or the other that are clearly just politics. When they do, whichever side they take, they can be cornered as being a hack for one side or the other - and if they don't then they must be a hack for the reverse for ignoring it. Either way, they are labelled. Its sad, some people just want to ignore politcal stories - at least until they are shown to be truly serious issues.
3.13.2007 10:03pm
Kovarsky (mail):
liberty,

i'm not completely clear what you're saying - are you saying that agnostic blogging is appropriate or inappropriate?
3.13.2007 11:52pm
Kazinski:
David Berke,
The county where the illegal voting occurred is and was overwhelmingly Democratic, there is no absolute proof, because there was not a thorough investigation by the US Attorney, but anyone that looks at the evidence objectively would conclude the election was swung by illegal votes. The public officials who's responsibility it was to conduct a clean and fair election lied about the facts to the public in terms of statements made to the press, and officially in affidavits that they were required to certify the election.

Now in McKay's defense I think he did all he was required to do if he was a non-partisan holder of a non-partisan office. If US Attorneys are selected and confirmed and hold tenure the way Federal judges do, then I would think McKay adequately performed his duties. However the US Attorney is a partison office staffed by partison appointees, and they better damn well know on which side their bread is buttered on. I expect the highest ethical behavior from them, don't let anybody off, don't put anybody on the hook for political reasons. McKay found himself out of step with adminstration that puts a very high priority on voter fraud cases, and wants answers whether or not they result in prosecutions. And I wouldn't expect Democrats and independents to think McKay did anything wrong, but he didn't work for them, maybe his next job.
3.13.2007 11:54pm
neurodoc:
...we alternate which side to spin: sometimes we are political hacks for the right, and sometimes we are political hacks for the left...see it as the randomized hackery it truly is.

OK, if collectively VC bloggers do "alternate" between right and left, then it is not truly "randomized" hackery. And I don't think any individual VC blogger regularly or irregularly, with or without any discernible periodicity or pattern, switches between right and left. And whether for better or worse, I do think better, you are all pretty consistent/predictable.
3.14.2007 12:31am
Eli Rabett (www):
Nuts, illegal voting is republican speak for voter supression. Better a thousand don;t vote than we are suspicious of one.
3.14.2007 12:35am
Bill Dyer (mail) (www):
More broadly, I have longrunning objections to the extent to which DOJ is under White House control, objections that this story helps bring to the fore (although my objections are based on my views of sound policy, not on law).

And the constitutional amendment you propose to take the Attorney General out from the Executive Branch is ... ?

Hast thou learnt nothing from the life and justified death of the Independent Counsel statute?
3.14.2007 1:03am
Brian K (mail):
Kazinski,

So let me get this straight, a REPUBLICAN attorney appointed by a REPUBLICAN president couldn't find anyone evidence of voter fraud in a DEMOCRATIC district that voted a DEMOCRAT into office by a slim margin? and your arguing that he was legitmately fired because he couldn't make up enough evidence to have the vote overturned and the election given to a republican. You do concede that he did his job well in a non-partisan fashion. I see now that you stand on princple...

"anyone that looks at the evidence objectively"
I find it funny that you think you are capable of such a thing.

"I expect the highest ethical behavior from them"
no, actually you don't. you are arguing that he should have pushed for an indictment of someone, who could not have been proven to have done anything wrong for lack of evidence, on a strictly partisan basis. That is at the very least a corruption of the legal system.

"McKay found himself out of step with adminstration that puts a very high priority on democratic voter fraud cases, and wants answers whether or not they result in prosecutions"
now this sentence makes much more sense. no one can reasonably argue that this administration is non-partisan or does things in a non-partisan fashion. Also they did an answer, just not the "right" answer. There were tons of voting regularities across the country. almost none resulted in criminal proceedings and none of the other AUSAs were fired. Why? Because all the other instances would have either resulted in no change to the election outcome or resulted in the election going to the democratic candidate. The administration only pays lip service to vote fraud and firing someone for not paying that same lip service is not a legitimate reason.

What would your reaction be if the tables were reversed and it was a democrat doing an "evil" deed? Somehow i doubt it would be nearly as favorable as you are now.
3.14.2007 1:43am
OrinKerr:
Nuerodoc,

Well of course you would say that. :-)
3.14.2007 2:16am
Christopher Cooke (mail):
I worked with McKay's office (including Floyd Short) when I was an SEC attorney. They were excellent public servants, only interested in pursuing cases justified by the facts. That is probably why he was fired.

Kazinski's comments about McKay reflect a shocking belief that professional prosecutors are supposed to bend with the political winds. They are not. That is why the Senate is supposed to confirm the US Attorneys.

As for the other US Attorneys, Iglesias seems to have gotten a raw deal and Lam's firing has a bad appearance but we don't know enough to say that it was motivated by her prosecutions of Cunningham et al. Kevin Ryan, the US Attorney in SF, had morale problems in his office that were well-publicized in the local legal press and legal community.

I think AG Gonzales has some back-pedaling to do on his prior remarks to the effect that these were all performance related. This incident makes me glad, by the way, that Alito and Roberts were appointed to the US Supreme Court instead of Miers and Gonzales.
3.14.2007 2:19am
orson23 (mail):
Democrats are whining knee-jerk populists, completely lacking in Bill Clinton's pragmatism. That's all this opportunistic "scandal" proves to me - again.

And that the media continually prostitutes itself to bash Bush, heedless of historical context like Clinton's 93 firings, when AGs were too "unloyal" for a Democratic president - and the MSM proved largely silent or unsympathetic.
3.14.2007 5:30am
King:
Mr. Cooke:

I agree that we don't yet know the full story on Lam, but look at this post from Josh Marshall today -- the timeline is extremely damning. As Marshall points out, Samson's May 11 email discussing "the real problem we have right now with Carol Lam" came the very same day that Rep. Jerry Lewis was reported to be a target of her investigation; it also came right in the midst of the follwing events:


April 28th, 2006 -- Cunningham-Wilkes-Foggo "Hookergate" scandal breaks open. Probe grows out of San Diego US Attorney's Office's Cunningham investigation. CIA Director Goss denies involvement.

April 29th, 2006 -- Washington Post reports that Hookergate's Shirlington Limo Service had $21 million contract with Department of Homeland Security.

May 2nd, 2006 -- Kyle "Dusty" Foggo confirms attendence at Wilkes/Cunningham Hookergate parties.

May 4th, 2006 -- Watergate Hotel subpoenaed in San Diego/Cunningham/Hookergate probe.

May 5th, 2006 -- WSJ reports that Kyle "Dusty" Foggo, who Goss installed as #3 at CIA, is under criminal investigation as part of the San Diego/Cunningham investigation.

May 5th, 2006 -- Porter Goss resigns as Director of Central Intelligence.

May 6th, 2006 -- WaPo reports on questionable DHS contract awarded to Shirlington Limo, the 'hookergate' Limo service under scrutiny as part of the San Diego/Cunningham investigation. Similar report in the Times.

May 7th, 2006 -- House Committee to investigate DHS contract with Hookergate's Shirlington Limo.

May 8th, 2006 -- Lyle "Dusty" Foggo resigns at CIA.

May 11th, 2006 -- LA Times reports that Cunningham investigation has expanded into the dealings of Rep. Jerry Lewis (R-CA), House Appropriations Committee Chairman.

May 12th, 2006 -- Federal agents working on the San Diego/Cunningham investigation execute search warrants on the home and CIA office of Kyle "Dusty" Foggo.


I also agree with another Marshall point: that Lam should have been radioactive during such a period of uncovering mutlifaceted Republican corruption, much of which was so clear as to be undeniable (have we all forgotten the "Duke-Stir" yacht Cunningham received as part of his bribe?). Not that Lam should have been given a pass on anything truly serious, but the idea that you fire a prosecutor for some nebulous failure to pursue administration priorities in the midst of her dogged investigation of your political party should be treated with the contempt it deserves.

And I frankly don't give a rip about the "historical context" -- although orson23's failure to distinguish between Clinton's patronage politics and a purge of prosecutors who have harmed Republican party interests through (a)proseuting corrupt Republicans, or (b) not prosecuting Democrats without evidence in the months before elections, is interesting. But that aside, didn't "Clinton did it too" used be a criticism coming from Republicans, not a defense?

King
3.14.2007 8:03am
MnZ (mail):

Kazinski's comments about McKay reflect a shocking belief that professional prosecutors are supposed to bend with the political winds. They are not. That is why the Senate is supposed to confirm the US Attorneys.


Then, are Cabinet members not supposed to bend to the political winds? I doubt that you mean that.

Let me be clear. I think that US Attorneys should be more independent than Cabinet members. However, US Attorneys should not be as independent as judges. US Attorneys should be accountable to the voters via their accountability to elected officials (i.e., politicians).
3.14.2007 11:03am
Wonderland (mail):
Here's where I think the story goes from here.

Carol Lam is the big one, as Josh Marshall continues to point out. If you think DOJ's "real problem" with Lam was that she wasn't pursuing immigration cases, as opposed to the fact that she had blown open an corruption ring involving top-ranking Republican congressmen and political appointees in Executive branch agencies, you are kidding yourself. Expect her situation to get a full airing; Arlen Specter's speech yesterday, reported by today's NYT, seems to confirm this.

David Iglesias is the second biggest story, mainly because both Domenici and Wilson are in deep doo-doo. Once again, if you think he was pushed out because of nonfeasance relating to immigration or voter fraud, rather than because he refused to capitulate to pressure from two Republican members of the NM congressional delegation to bring an indictment down on a Democrat prior to election day, you're kidding yourself. As the email dump shows, Domenici was ready to replace Iglesias before his body was even cold.

The Arkansas situation is the third biggest story, mainly because it was the source of numerous false statements by administration officials to Congress. First, Gonzales lied about whether DOJ intended to use the new provision in the Patriot Act to circumvent the appointment process. Second, DOJ lied (in a letter to Congress) about Karl Rove's political involvement in the replacement. Third, Gonzales lied about whether politics played a role in the decision at all. I think this case provides the smoking gun that takes down the AG.

The McKay situation is the fourth biggest one, for two reasons. First, it is preposterous for DOJ -- and Kazinsky, in this thread -- to assert that he was fired for not pursuing the investigation of the 2004 governor's race alleged voting fraud more vigorously, when the Election Crimes chief of DOJ itself, in Washington, concurs that no crimes were committed. Second, McKay is not going down without a fight, and he knows he was part of a wrongful political purge. As he put it, "My question is, if [Gonzales] fired the guy who fired us, why is he standing by the dismissals?" (Via TPM.)

Good question.
3.14.2007 11:14am
DWPittelli (mail) (www):
Patterico has an interesing and informative post on this. As one might expect, he takes a Bush-leaning wait and see position. In conclusion:

Out of all eight U.S. Attorneys, there is one instance where there may be a political issue. The article reveals that Sen. Pete V. Domenici (R-N.M.) "phoned [U.S. Attorney David C.] Iglesias to inquire about a seemingly stalled corruption investigation against Democrats in New Mexico." But even here, the article cites no real evidence from the e-mails showing that Domenici had any effect on the Administration's decision to oust Iglesias. The article mentions e-mails sent after the firing, noting that Domenici was happy and was quickly submitting names as possible replacements. These e-mails show an (amused) awareness that Domenici had been unhappy with Yglesias — but the e-mails are not evidence that Domenici's unhappiness had any effect.

Unmentioned by The Times is the fact that Iglesias, the fired New Mexico U.S. Attorney, had passed on more than a hundred allegations of voter fraud in New Mexico. After calling a press conference and saying: "It appears that mischief is afoot, and questions are lurking in the shadows," he let his office drop most of the complaints, claiming that he lacked the resources to investigate them, and that the FBI had declined to investigate.

I think this is inexcusable. If you are the U.S. Attorney, you can play a role in setting priorities for the FBI — especially in the critically important area of voter fraud.
3.14.2007 11:18am
K Ashford (mail):

US Attorneys should be accountable to the voters via their accountability to elected officials (i.e., politicians).


It strikes me that, rather than being directly or indirectly accountable to elected officials (or even "serving at the pleasure of the President"), a US Attorney, once in office, is obligated to uphold his oath of office -- period.

And I'm fairly sure that the oath, whatever it is, is non-partisan.

Which begs the question: What IS the oath that U.S. Attorneys take? My googling skills have failed me: I can only find statutes requiring an oath, but can't seem to locate the text of the oath.

Anyone know?
3.14.2007 11:27am
M. Simon (mail) (www):
US Attorneys should be accountable to the voters via their accountability to elected officials (i.e., politicians).

That would lead to a multiplication of Nifongery. IMO
3.14.2007 11:31am
Mikeyes (mail):
I am surprised that no one has commented on Berger vs. The United States and this paragraph in the decision:


The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor-- indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.
3.14.2007 11:33am
QuietNoise (mail):
I'm so tired of hearing that the Media isn't reporting that U.S. attorneys serve at the pleasure of the president or that Clinton did it too (Clinton didn't do it too btw). In every news story I've read or seen on television, these observations ARE made. Get real!
3.14.2007 11:48am
Anderson (mail):
Kazinski: Now in McKay's defense I think he did all he was required to do if he was a non-partisan holder of a non-partisan office.

Wow. Just "wow."
3.14.2007 12:03pm
Qwinn:
1) The notion that there wasn't enough evidence to pursue a full investigation in the Washington governor's election is utterly absurd. Soundpolitics revealed a hell of a lot more than a few illegal votes in one county. And yes, if there was a thorough investigation and it did not yield any "evidence of a crime", I'd expect to see that conclusion broadcast -very- loudly, and not just in response to this situation.

2) What Clinton did was fire every attorney in order to cover up the fact that he desperately needed to get rid of -one-... that one happened to be an arkansas lawyer (named George Banks, I believe?) investigating certain land deals. That one was then replaced by one of Clinton's own former law students, who then promptly buried the investigation. Amazing that the coverage ignores THAT. Tell me, if Bush had fired all 93 attorneys in order to cover up these 8, wouldn't you be even more shocked? Imagine if he'd fired 93 to cover up just one? Sadly, it looks like it -worked-.

3) I think Zazinski's defense (that it -should- be a thoroughly partisan office) is ridiculous. For the record. I submit that I -don't- think McKay did all he was required to do as a non-partisan holder of a non-partisan office.

4) I do stand by a President's ability to fire any USA he wishes to. That's his constitutional right. There -should- be political fallout though - just as there should have been a crapload of fallout for Clinton dismissing (as one of the 93) someone investigating Whitewater land deals and replacing him with a former law student... but hey, let's not worry about that, after all, we all know that ALL cases of overt, glaring democrat voter fraud are always pursued diligently... just look at Philadelphia for the last 30 years or so, with almost as many registered voters as eligible voters election after election...
3.14.2007 12:11pm
Justin (mail):
Mikeyes, while I agree with the way you are using Berger in a normative sense, Berger is a different case. That case, and the many cases that cite Berger, is not a case about improper prosecutorial discretion (i.e., "which cases") but about prosecutorial misconduct in a particular case (i.e., "which methods"). While the Department of Justice has surely been quoted back to it (from opponents and courts alike) Berger at an unprecedented rate under Bush, it's not the right case for this situation.
3.14.2007 12:14pm
canadianllb (mail):
Remember all, this is the Volokh Conspiracy. It wouldn't be much of a conspiracy without conspiracy.
3.14.2007 12:15pm
The Ace (mail) (www):
In 1993, firing every USA would've meant having to get Senate confirmation of every replacement, in a process where the Senators from each state played a role in selecting the USA.

Is this a suggestion that the relevant Senators were not consultant here? Especially in New Mexico?

Here is the gist of the story:
Clinton fires every US attorney for politcal purposes = ok
Bush fires 8 for political purposes = scandal.

This is a "story" because the liberal media(for them history starts in 2000) insists on asking about it endlessly.
3.14.2007 12:20pm
Qwinn:
By the way, if anyone needs a link to support what I said about Clinton getting rid of USA George Banks to quash the Whitewater investigation, here ya go.


Qwinn
3.14.2007 12:27pm
Qwinn:
Messed that up, sorry.

Link

Qwinn
3.14.2007 12:29pm
uh clem (mail):
I'll say it again: anybody who trots out the "Clinton fired all the attorneys" defense gets an F for not doing their homework.

It's one of those talking points that immediately outs the person using it as being either completely uninformed or a partisan hack who uses arguments he knows are bogus.
3.14.2007 12:32pm
nrein1 (mail):
For all of you still not getting it, the difference between Clinton and Bush's action is quite simple. Cinton fires all of the Republican appointed USA at the start of his term. Bush fires some that he apopinted in the middle of his term. That is the difference. Very simple, very straight forward, and honestly I don't believe anyone out there does not understand the difference. Those who are making a big deal of Clinton's action are acting like partisan hacks.
3.14.2007 12:35pm
Qwinn:
Is that supposed to be a response to me?

If so, that's a pretty LAME response to what Clinton did. I'm not saying "Clinton fired all the attorneys so that makes it okay", I'm saying "Clinton fired an attorney investigating Whitewater and replaced him with a former law student, the other 92 firings were just political cover so no one would notice". If you can't tell the difference, just damn.

Qwinn
3.14.2007 12:36pm
publius (mail) (www):
The Lam firing is really the most disturbing one. Given the timing (noted by Josh Marshall and the commenter above), I think it's, sorry, absurd to say she was fired strictly for immigration cases. In fact, if anyone at DOJ was dumb enough to be even more explicit about why she was fired (the current emails tread the line, but maybe don't clearly cross it), that puts you into obstruction of justice land.

It's a very serious matter to fire the prosecutor to stop a GOP-centric corruption investigation. It's not 100% clear that was the motivation, but the timing of those emails sure smells funny. (Remember too that elections were going in the background).
3.14.2007 12:37pm
Bob from Ohio (mail):
US attorneys are exercising the "executive Power" of the United States. Who does the Constitution vest the "executive Power" in?

These people are not independent actors, they serve the President. If the President is unhappy with them, for whatever reason, then if he wants to fire them, ok with me. The same was true in 1993 as it is now.

If Congress thinks the firings are an abuse, then impeach and remove the AG or the President from office. That is the remedy.

These current hearings will create headlines and blog posts but nothing else. (Well, I guess they will change the appointment law back to the way it was, big woop, that will only hamstring the next president.) Neither Rove or the AG will resign. No perjury indictments.

My bottom line is that it does not matter whether it is President Bush or President Clinton doing the firing, it is still ok even if for "political reasons". If there is political fall-out, then that hurts the President, as it should. Yet it is still his decision under our system. Do you want US attorneys answerable to no one? That is the Nifong danger, not what happened here.
3.14.2007 12:43pm
Qwinn:
So let me get this straight.

Democrats: "Bush may have fired US attorneys that he felt didn't aggressively pursue investigations against Democrats enough. This is vile! The lowest of the low!"

Republicans: "Uh, your Savior Clinton fired all 93 attorneys to cover up his firing of the one investigating Whitewater, replacing him with a law student who promptly buried the entire investigation, and yet Whitewater is now viewed as evidence of the "Republican smear machine that couldn't turn up any evidence of a crime". You've gotta be kidding us with this, right?"

Democrats: "Bah, anyone who even brings up Clinton or anything he did is OBVIOUSLY just a partisan hack."


Be.

Yond.

Parody.

Qwinn
3.14.2007 12:47pm
Adeez (mail):
Qwinn: who are you quoting? And what does "yond" mean?
3.14.2007 1:03pm
TallDave (mail) (www):
The President can fire USAs for any reason at all, including that he doesn't like their ties or they don't prosecute enough Democrats. Unless there was an active investigation that was terminated as a result of the firing (which was NOT the case in the above example), there's nothing here.

Josh Marshall, Chuck Schumer and the MSM have ginned up a faux controversy over nothing. Big shock there.

Josh was interesting and thoughtful for a while, but has been drifting toward hackery for some time. I think he's arrived.
3.14.2007 1:03pm
The Ace (mail) (www):
For all of you still not getting it, the difference between Clinton and Bush's action is quite simple. Cinton fires all of the Republican appointed USA at the start of his term. Bush fires some that he apopinted in the middle of his term. That is the difference. Very simple, very straight forward, and honestly I don't believe anyone out there does not understand the difference.

Comical.

Guess what is not "the difference"?

They serve at the pleasure of the President.

Are you seriously contentending the President somehow must keep all US attorney's he's put in place while he is in office?

I'll say it again: anybody who trots out the "Clinton fired all the attorneys" defense gets an F for not doing their homework.

Actually, what this means is you can't offer a real rebuttal as the resident liberal.
3.14.2007 1:04pm
K Ashford (mail):
These people are not independent actors, they serve the President.

No. They serve the people and the law. Read the Berger quote above.
3.14.2007 1:09pm
uh clem (mail):
Qwinn,

Please do your homework. Every time there's a change in administrations the incoming president replaces nearly all the US Attorneys. Bush (43) replaced 91 of the 93 in 2001. Don't believe me? Read this:


FOR IMMEDIATE RELEASE
AG

MONDAY, MARCH 14, 2001
(202) 514-2007

WWW.USDOJ.GOV
TDD (202) 514-1888


WHITE HOUSE AND JUSTICE DEPARTMENT
BEGIN U.S. ATTORNEY TRANSITION


WASHINGTON, D.C. - Continuing the practice of new administrations, President Bush and the Department of Justice have begun the transition process for most of the 93 United States Attorneys.

Attorney General Ashcroft said, "We are committed to making this an orderly transition to ensure effective, professional law enforcement that reflects the President 's priorities."

In January of this year, nearly all presidential appointees from the previous administration offered their resignations. Two Justice Department exceptions were the United States Attorneys and United States Marshals.


http://www.usdoj.gov/opa/pr/2001/March/107ag.htm
3.14.2007 1:16pm
K Ashford (mail):
They serve at the pleasure of the President.

Are you seriously contentending the President somehow must keep all US attorney's he's put in place while he is in office?


I'm saying that if the Prez chooses to fire someone, it shouldn't be because the USA is prosecuting too many Republicans and not enough Democrats.

But let me ask you....

Are you seriously contending that the President can openly and directly "order" all US attorneys never to prosecute a Republican?

This is not what Bush did, but if the beginning and end of your analysis is "they serve at the pleasure of the President", then, hypothetically speaking, a President can do exactly what I have suggested.

Sorry, Ace. Once in office, U.S. attorneys take an oath is to uphold the law and the Constitution, not the whims of the resident of the White House. The President can appoint whoever he likes, and fire whomever he likes, but if he fires an attorney because of disloyalty to the President or party, there SHOULD be political fallout. And that's what we're seeing.
3.14.2007 1:19pm
Anderson (mail):
Are you seriously contentending the President somehow must keep all US attorney's he's put in place while he is in office?

Did anyone say that? Would you quote, please?

The point is this: the President is free to be as corrupt as he likes in firing the U.S. attorneys, but the Senate is free to investigate that corrupt behavior. In particular, the Senate may wish to rethink its ceding the power of confirmation of new appointees. And, as a more clear-thinking Bush supporter upthread said, there's always impeachment of Gonzales.
3.14.2007 1:22pm
Qwinn:
uh clem,

...

So let me get this straight. You take the starting point of "93". You then subtract two... "Two Justice Department exceptions were the United States Attorneys and United States Marshals". Somehow, you conclude that there must be a USA out there named "Mr. United State Attorneys" and another one named "Mr. United State Marshals", and conclude that 91 were fired.

Would that be correct?

If you were a teacher, what would you grade a student who came to that conclusion in their homework?

And how does this address the fact that Clinton fired a USA who buried the Whitewater investigation? Do you not realize the implication of this is that there should be immediate subpoenas issued and the Whitewater investigation reopened? Or should we all realize that justice in that case was successfully obstructed and just "move on"?

Qwinn
3.14.2007 1:22pm
TallDave (mail) (www):
It's just astonishing how shamelessly hypocritical the DNC/MSM/nutroots axis are being here. Clinton dismissed everyone, including someone who was actually investigating a case involving him, and no one cared. But Bush dismisses 8, and the fact there were a couple investigations of the GOP going on is suddenly evidence of a horrifying abuse of power that undermines the very foundation of the republic.

This is just like the amazing reversal the press coverage of filibusters undergoes every the control of Congress changes. When Dems are in the minority, it's the cornerstone of democracy; if Repubs are using it, it's an anti-democratic obstructionist anachronism.

Or consider the Valerie Plame "scandal." Left-wingers openly expose CIA operatives and vital national security initiatives in the NYT, and they're called heroes. Richard Armitrage leaks a CIA desk jockey's name because her husband on TV lying about a trip she sent him on, and it sparks a political witch hunt that ends in Cheney's aide being indicted despite the fact there was no damage at all to national security, no political agenda to the leak -- and in the end, the executive has the power to declassify what it wants anyway, unlike the NYT.

Sigh.
3.14.2007 1:24pm
The Ace (mail) (www):
Another trip down memory lane:


At the time, President Clinton presented the move as something perfectly ordinary: "All those people are routinely replaced," he told reporters, "and I have not done anything differently." In fact, the dismissals were unprecedented: Previous Presidents, including Ronald Reagan and Jimmy Carter, had both retained holdovers from the previous Administration and only replaced them gradually as their tenures expired. This allowed continuity of leadership within the U.S. Attorney offices during the transition.

Equally extraordinary were the politics at play in the firings. At the time, Jay Stephens, then U.S. Attorney in Chicago, was investigating then Ways and Means Chairman Dan Rostenkowski, and was "within 30 days" of making a decision on an indictment. Mr. Rostenkowski, who was shepherding the Clinton's economic program through Congress, eventually went to jail on mail fraud charges and was later pardoned by Mr. Clinton.


Liberal reaction at the time?
Silence.
3.14.2007 1:26pm
uh clem (mail):

Actually, what this means is you can't offer a real rebuttal as the resident liberal.


Actually, no. See the link above. If you are not aware that Bush Jr "Fired" 91 of 93 US Attorneys when he took office, you haven't done your homework. If you are not aware that this is a normal unremarkable event at the beginning of an administration, you haven't done your homework.

And now that I've pointed it out to you, if you still persist using the "But Clinton fired all the US Attorneys" defense, I can't help you any farther. You're either hopelessly dishonest or hopelessly dense.

Replacing the Attorneys at the beginning of the term is roughly equivalent to replacing the cabinet - expected and unremarkable. What Bush/Gonzales have done is more analagous the Saturday Night Massacre.
3.14.2007 1:26pm
Aleh:
Qwinn

If you read the rest of the linked press release you will see that uh clem is correct. The next para:

"Prior to the beginning of this transition process, nearly one-third of the United States Attorneys had already submitted their resignations. The White House and the Department of Justice have begun to schedule transition dates for most of the remaining United States Attorneys to occur prior to June of this year."

Bush replaced all but 2 of them. Reagan did the same thing when he came in after Carter. Its SOP.
3.14.2007 1:26pm
The Ace (mail) (www):
Did anyone say that? Would you quote, please?

Uh, can you read?
I excerpted the quote for you.

Are you seriously contending that the President can openly and directly "order" all US attorneys never to prosecute a Republican?

Uh, no.
And neither Bush nor the AG has done or suggested this.

Your "outrage" is phony and hypocritical.
Allegations = fact for you.

Remember, fiction can be fun!
3.14.2007 1:28pm
Aleh:
As for the last point in my prior post. From Fox News:

"When the party in power changes hands in the White House, it is expected that the new president will fire all the sitting U.S. attorneys, as was the case for both Ronald Reagan in 1981 and Bill Clinton in 1993. President Bush, unlike Clinton and Reagan, did not fire all the attorneys en masse when he took office in 2001, and allowed a few to continue in their positions for several months. All were replaced with his own selections early in his administration, however."

http://www.foxnews.com/story/0,2933,258425,00.html
3.14.2007 1:29pm
TallDave (mail) (www):
Are you seriously contending that the President can openly and directly "order" all US attorneys never to prosecute a Republican?

Yes! "Can" and "should" are not the same thing.
3.14.2007 1:29pm
The Ace (mail) (www):
And now that I've pointed it out to you, if you still persist using the "But Clinton fired all the US Attorneys" defense, I can't help you any farther. You're either hopelessly dishonest or hopelessly dense.

Uh, I'm not using that "defense"

The "defense" is that they serve at the pleasure of the President.

So again, this "scandal" is nothing more that you not liking the President exercising his power under the law.
3.14.2007 1:30pm
Davebo (mail):

Republicans: "Uh, your Savior Clinton fired all 93 attorneys to cover up his firing of the one investigating Whitewater, replacing him with a law student who promptly buried the entire investigation, and yet Whitewater is now viewed as evidence of the "Republican smear machine that couldn't turn up any evidence of a crime". You've gotta be kidding us with this, right?"



Let's review folks. Clinton fired 93 USA's to cover up the one he really wanted to fire, because that one was investigating Whitewater.

Then his replacement quickly dropped the investigation. Later the mother of all investigations (remember? they guy now teaching named Starr) found that all along there was, despite massive efforts to produce it, no "there" there regarding Whitewater.

So Clinton fired 93 USA's to get rid of one because he was conducting an investigation that Clinton had to have known would lead to nowhere.

That about sum up your theory?
3.14.2007 1:30pm
The Ace (mail) (www):
found that all along there was, despite massive efforts to produce it, no "there" there regarding Whitewater

Funny, I guess Web Hubbell was never in jail.

How about those other 32 convictions?
3.14.2007 1:34pm
Qwinn:
uh clem and aleh:

I stipulate that your source establishes that "most" were replaced (1/3 having already resigned on their own). That proves that another 1/6 of the total was then booted by the first Bush.

I see nothing whatsoever that proves that Bush only retained "2". There's a big difference between "most of 93" and "91". I submit that the only evident source of the number "91" that you keep repeating is that uh clem read the bit about there being two exceptions, didn't continue on to read the words "United States Attorneys and United States Marshals", and figured they were the names of two individuals.

If I am wrong, please cite the exact source of the "fired all but two", "fired 91" claims. Thanks.

Qwinn
3.14.2007 1:35pm
The Ace (mail) (www):
Replacing the Attorneys at the beginning of the term is roughly equivalent to replacing the cabinet - expected and unremarkable. What Bush/Gonzales have done is more analagous the Saturday Night Massacre.

Hilarious.

Yes, that 2 year process which started after the '04 election is just like the "Saturday Night Massacre"

You people are an embarrassment to your cause.

So again, are you seriously contending the President should keep all US Attorney's for the duration of his time in office?
3.14.2007 1:37pm
TallDave (mail) (www):
Later the mother of all investigations (remember? they guy now teaching named Starr) found that all along there was, despite massive efforts to produce it, no "there" there regarding Whitewater.

See, this is the perfect exemplar of the false reality the left has constructed for itself.
3.14.2007 1:37pm
Qwinn:
One: The claim that there was no "there" there in Whitewater is hilarious... 33 convictions, including Web Hubbell, but really, that's nothing compared to the prosecutorial blizzard known as the Libby trial!

Two: So let me get this straight: If we found that Bush had fired a lawyer who was investigating -him- in a case that eventually yielded 33 convictions including those of close colleagues, even as part of a larger overall "perfectly normal" firing, and replaced him with a former law student of his that immediately buried the investigation, you guys wouldn't see this as prima fascia evidence of evil?

RIGHT.

Qwinn
3.14.2007 1:55pm
uh clem (mail):
are you seriously contending the President should keep all US Attorney's for the duration of his time in office?

That has been the custom, with a few exceptions where they were dismissed for cause. See http://opencrs.com/document/RL33889

This is unprecedented which is why it's raising the red flags. And since the administration's cover story is constantly shifting, the logical conclusion is that they're not being upfront about the reasons.
3.14.2007 1:58pm
Bored Lawyer:
IF we can deviate a bit from the political hackery, there was a comparison made above between employment at will -- which while basically true is restricted by the Civil Rights Act and other laws -- and Executive Officers who serve at the President's pleasure. The comparison asserted would argue that while the President can hire or fire anyone he wants, he cannot do so for a forbidden reason. (Just like an employer can refuse to hire or fire for any reason, but not race, religion, etc.)

It was even suggested above that the Free Exercise Clause would forbid firing a high level Executive officer merely because he converted to another religion.

Is this comparison apt? Is it Constitutional? I don't think so. The Constitution vests the President with Executive power, and he should be permitted to exercise it in complete discretion, subject, of course, to Senate confirmations and any political fallout he may suffer from a stupid or bigoted decision.

Anyone know any authority on this issue?

The only line of cases I can think of has to do with political affiliation discrimination -- which SCOTUS has held is forbidden for low-level govt. workers but NOT high level policy making officials.
3.14.2007 1:58pm
MarkW (mail):
So again, this "scandal" is nothing more that you not liking the President exercising his power under the law

Ace, no one is arguing that Bush lacked the legal authority to fire the US Attorneys. What is being argued is that he has used his legal authority in an unethical way. Got it?
3.14.2007 2:06pm
Qwinn:
Never mind that it took Hillary longer to find the Rose Law Firm records in the White House than it took us to find Saddam in an area the size of California after we invaded. I heard that when they were finally found buried in that hole in the floor of the west wing, though, they came quietly. I'd have had much more respect for those records if they'd gone out shooting like Udai and Qusay did.

Qwinn
3.14.2007 2:06pm
TLB (mail) (www):
I don't know if this site has, but I don't think the vast majority of those who are discussing the U.S. Attorneys have ever mentioned the RamosCompean or GilmerHernandez cases. There's even going to be Congressional hearings on the first to see whether there was undue foreign influence; I suspect that most of those discussing the Attorneys case will be cheering for the other side.
3.14.2007 2:08pm
itshissong:
I find these types of debates frustrating because they seem to frequently take a very specific course. The side who feels they are under attack gradually stop trying to argue the merits of a certain decision and instead try to change the argument into a question of whether someone "can" make a decision or take a certain course of action. In doing so, they are able to avoid taking a moral or ethical stance on the issue.

Of course the President can remove them from office (although the question about whether laws like the Civil Rights Act restrict this power is an interesting and, seemingly, open one). The question, in this case, is whether doing so was ethical or moral. In addition, the question of whether the "cover-up" or attempt to cover the situation up is legal is a legitimate one.
3.14.2007 2:17pm
Kim Scarborough (mail) (www):
I haven't really been following this story, but I have to say I was amused by today's Wall Street Journal editorial on this issue, which managed to simultaneously argue a) Democrats upset about the Bush Administration firing these attorneys are hypocrites because they didn't think it was a big deal when Clinton did it; b) it was a big deal when Clinton did it; c) it's not a big deal now that Bush is doing it.
3.14.2007 2:18pm
Qwinn:
Okay, as far as the "ethics" charges go:

Did the firings interrupt pending investigations against the President?

Was the replacement a close colleague who failed to carry on those investigations?

If the answer to those two questions is "no", then I fail to see the sort of tremendous ethical lapse that -was- evident in the Clinton firings, but which was not considered noteworthy when it happened.

Qwinn
3.14.2007 2:19pm
Qwinn:
Yes, Kim, and if you'd followed this thread, you'd know why it was a big deal when Clinton did it and not a big deal when Bush is doing it. Heck, just answer the questions I posed in my last post for each case, and you should understand why.

Qwinn
3.14.2007 2:20pm
SDProsecutor:
I continue to be surprised at the uproar over the firing of a US Attorney (Carol Lam) who, instead of concentrating her efforts on supervising and managing over 150 AUSAs and SAUSAs, personally retried a health care fraud case that lasted eleven months. She should have been asked to leave the moment she stated her appearance.

Since this is a "legal" site, perhaps we could move into the separation of powers arena, and the fact that prosecution is an Executive function?
3.14.2007 2:29pm
Justin (mail):
Getting away from both the irrelevant Clinton arguments and the normative scope of Bush's activities, what's interesting about how this will play out politically is that:

1) From a legal standpoint, I think its clear that the Lam (and to a lesser degree, Mackay) firings are most problematic.

2) From both watching this play out and some inside sources, its clear that Congressional Democrats are going to focus on Iglasias, in what is (to me a shortsighted) attempt to use the issues to win the Wilson and Dominici seats.

I don't even know if the NM scandal is going to play out that well in NM - Wilson and Dominici might have acted against all sorts of ethical rules, but to the average voter it looks like they were pressing to get corrupt politicians out of office. Whereas if the Lam accusation is proven, then the offense would be surely 1) impeachable (but see Iraq War, Valerie Plame, Torture, NSA Spying, and ND Hemocratic scandal (total impeachments: 0)), 2) very effective in the more important 2008 Presidential elections, particularly if the candidate is McCain (less so against a Giuliani candidate that can play the "I cleaned NY up" card).

Whether the Lam case will force itself to the forefront based on the pressures of the grassroots (who are, in the eyes of staffers, less "politically savy") and the underlying facts is yet to be seen. Depending on how this goes, this could be quite interesting for quite some time.

More clear is the fact that the Dems were outmaneuvered into giving Bush a "pass" on all the impeachable or outrageous activities he performed when the GOP turned the other cheek - but that the same outmaneuvering is far less likely to occur when the facts underlying the scandal are new.
3.14.2007 2:29pm
Justin (mail):
"Since this is a "legal" site, perhaps we could move into the separation of powers arena, and the fact that prosecution is an Executive function?"

We could (I am probably going to write something academic on this exact topic once this case has lapsed), but I don't think you're framing the issue correctly. Unlike political decisionmaking (and contrary to the philosophy of the unitary executive), prosecutorial discretion is a field that is controlled by important, if not always easy to enforce, ethical constraints. Attorneys who prosecute or fail to prosecute candidates based on illegitimate reasons (including political ones) may be disbarred, and even prosecuted. Though the burden is very substantial (and perhaps practically impossible to overcome), such a showing can render an indictment null and void, as well.

So to say that the executive has a unitary right to fire or promote prosecutors for going after their political enemies, and failing to go after their political allies (or themselves), is a fairly difficult proposition (outside of the useless statement that absent impeachment, many political appointees have absolute immunity for their actions while in office unless impeached).

But even under the unitary executive theory, you cannot say that political choices are not subject to the types of criticisms that Bush is now facing. I don't just mean this in a First Amendment right, but in a normative sense as well. The whole theory of the unitary executive is that the controls THEMSELVES are political in nature. To say that SINCE there is no legal control, there the political control is not relevant, completely defeats the whole unitary executive argument in the first instance.

Trying to put this absurdity into another context is difficult, but let me give it a shot. It's like saying that we should decriminalize antitrust because fault is too difficult to prove and a no-fault civil structure is better, and then advocating that civil antitrust remedies should be made more difficult to obtain since Congress indicated that antitrust violations were not a big deal.
3.14.2007 2:40pm
Qwinn:
Okay, what I would really consider to be a proper ethical test here are as follows... and note, I'm not entirely sure which of these tests fail for any of the particular firings Bush has done:

1) Firing prosecutors that fail to pursue investigations against political opponents that the executive feels have merit? Entirely, positively ethical. Why shouldn't it be?

As an example, I keep being told by liberals that what Sandy Berger did wasn't so bad, because if it were, wouldn't the Bush administration have prosecuted? Well, about the only way I can see that the Bush Admin could fix a situation like that would be by firing the lawyers who refused to pursue it. So, if USA's don't prosecute liberals, that's proof the liberals are innocent, and if Bush fires the USA's who don't prosecute liberals, it's horrific partisanship? Sorry, can't have it both ways.

2) Firing lawyers who are currently prosecuting oneself or allies is more problematic. This does not preclude the possibility that they were fired for other causes, and the true test should be whether the replacements continue those investigations... which, if there's any whiff of that here, we'll never know now, since this has blown up into a "scandal" before such could even happen, if I'm reading things correctly.

Qwinn
3.14.2007 2:55pm
Justin (mail):
Professor Kerr,

Just to let you know, both Redstate and the National Review Online have quoted you for the argument that the Attorney General scandal is (affirmatively) no big deal. I don't read your comments the same way, but apparently people may disagree.
3.14.2007 2:59pm
Davebo (mail):

One: The claim that there was no "there" there in Whitewater is hilarious... 33 convictions, including Web Hubbell, but really, that's nothing compared to the prosecutorial blizzard known as the Libby trial!



OK, I'll bite. What does Hubbell's or any of the other 32 convictions you speak of have to do with the Whitewater investigations of either the USA or Ken Starr?

You might want to familiarize yourself with the actual case being cited.
3.14.2007 2:59pm
Justin (mail):
Qwinn, your conflating the issue of "investigating corruption regardless of political party" and the issue of "investigating corruption because of political party." The first is ok, the second is not. Kozinski, for instance, is defending the Mackey firing, in part, on the argument that the firing was legitimate because Mackey didn't go after what he believed was clear voter fraud. While Kozinski's evidence to support his argument is less than optimal, were he right, Mackey's firing would be legitimate. The problem is when US Attys are told to focus on particular parties or candidates for political reasons, or on political timelines, particularly when their initial investigation did not turn up any wrongdoing.
3.14.2007 3:02pm
Aleh:
Qwinn

I'm not sure what more you want and why "[Bush] allowed a few to continue in their positions for several months. All were replaced with his own selections early in his administration, however" isn't sufficient for you. You seem to be drifting into nitpickery since your original point that what Clinton did was so unusual had no merit.
3.14.2007 3:05pm
Qwinn:
Aleh:

First off, I never made the point that the firing of attorneys was unusual. That must be someone else you're talking about. That Clinton did it to cover up the Banks firing is not a statement that he wouldn't have fired some or all otherwise - it just happened to be entirely convenient. His real crime in that regard was appointing a replacement that was a former law student of his that buried the investigation - a "non-nitpickery" point that you seem to insist on avoiding in order to focus like a laser on -when- attorneys are fired within an administration's term as if that somehow is in any way relevant.

Second, you made a point of fact, repeatedly: "Bush fired all but 2", and claimed a link supported it. I pointed out that the source does not at all support that, except by an egregious misreading of a particular sentence within it. The way you are falsely presenting it carries a lot more weight than if you just said "Bush fired most of them too", which is all that the quoted source allows you to do. So, sorry if you'd like to claim that simply making stuff up that materially supports the point you're trying to make is mere "nitpickery", but hey, that's the breaks in the blogosphere. Expect to get called on it. Oh, and yeah, it goes to your credibility too.

Qwinn
3.14.2007 3:12pm
Qwinn:
[quote]Qwinn, your conflating the issue of "investigating corruption regardless of political party" and the issue of "investigating corruption because of political party." The first is ok, the second is not. Kozinski, for instance, is defending the Mackey firing, in part, on the argument that the firing was legitimate because Mackey didn't go after what he believed was clear voter fraud. While Kozinski's evidence to support his argument is less than optimal, were he right, Mackey's firing would be legitimate.[/quote]

I believe that there is enough evidence to support that firing. You may consider it "less than optimal", and I'm sure there isn't a -scintilla- of possibility that you consider it "less than optimal" because the targets are Democrats, but it's also true that there was more than enough "smoke" in the case to warrant an investigation. Now, as to determining that actual corruption happened - how can you be sure until there -is- an investigation? Your demand seems to be that there be sufficient evidence for a conviction before the parties can even be investigated, which is ludicrous, and would remove any need to have investigations.

Of course, we're familiar with the Democrat position on investigations these last 6 years... "Either Bush is guilty, or more investigation is required".

[quote]The problem is when US Attys are told to focus on particular parties or candidates for political reasons, or on political timelines, particularly when their initial investigation did not turn up any wrongdoing.[/quote]

And as far as I know, there is not one scintilla of evidence that anyone was told such a thing... the emails and memos I have seen do not support any such reading, except through tremendous contortions that are incidentally not necessary for me to make in my "irrelevant" comments regarding what Clinton did.

It is however certainly possible that I've missed one. There's a LOT of articles out there about this, and not all of them contain the same information. If you have seen one that does offer evidence of what you're suggesting, could you reproduce the relevant text with a link here please? I would appreciate it.

One final note on that though: I could see comments made in that regard -if- a USA in question was guilty of the opposite himself... that is, refusing to prosecute Democrats by reason of partisanship. In such a case, yeah, I don't see anything wrong with anyone in the administration saying "Okay, let's get someone in there who is willing to prosecute democrats", just as I wouldn't see anything wrong were a Democrat president to say that about a lawyer who refused to prosecute republicans.

Qwinn
3.14.2007 3:21pm
Qwinn:
Gah, sorry about me using brackets instead of <> on my quotes up there... habit >.>

Qwinn
3.14.2007 3:21pm
Adeez (mail):
"Firing lawyers who are currently prosecuting oneself or allies is more problematic. This does not preclude the possibility that they were fired for other causes"

And if they were fired for noble causes, that would've been quickly exposed, and no scandal would've erupted. But no, that's not what happened. Gonzalez got caught in a lie right away by claiming insufficient performance. That was nonsense. When the other side controls all the evidence, and then when accused of wrongdoing gets caught in a blatant lie, then everyone should be suspicious. Kinda like some other event that occurred a few years ago, the "official" explanation to which is so full of holes, and the attempts to prevent any real investigation into the matter so rampant, that any reasonable person would be crazy to not to have serious doubts.

And I think you do not understand the difference between "liberals," "Democrats," and anyone who sees this administration for what it really is. For example, you "keep being told by liberals that what Sandy Berger did wasn't so bad." I don't know these folks, but the liberals I know don't give a shit about Sandy Berger or any other political hacks. In fact, real liberals don't consider either Clinton to even be a liberal. Liberals just happen to vote democratic more b/c their positions more closely resemble liberal positions than does those of the Republicans. I'd be happy to point-out Clinton's faults. But considering that the current administration is such a failure, I don't see how that's helpful. So, in short, arguing to a true liberal "but Clinton was bad too!" is a waste of breath.
3.14.2007 3:45pm
Qwinn:
"OK, I'll bite. What does Hubbell's or any of the other 32 convictions you speak of have to do with the Whitewater investigations of either the USA or Ken Starr?"

You're kidding, right?

Were any of those convictions not a -direct- result of those Whitewater investigations?

Please, name a single one that wasn't if you can find one.

Here's just a few:

Qwinn
3.14.2007 3:51pm
Qwinn:
"And if they were fired for noble causes, that would've been quickly exposed, and no scandal would've erupted."

Hardly. Were the "noble" reason that a lawyer refused to prosecute democrats, and the administration then said "Let's get someone in there who -is- willing to prosecute democrats", this would hardly have been accepted by democrats as fair play, even though I certainly think it would be. Such an episode would have been contorted wildly to make it look like an attempt to specifically target democrats, rather than remove unfair deference to them. In fact, the more I read about this, the more I think that's exactly what happened.

That said, people in the Bush Administration seems to have this bizarre habit of partially confessing to malfeasance when a review of the actual facts and evidence shows none. Gonzales appears to have done so in this case once again. If I have a major grievance against the Bush Administration, it's their bizarre reluctance to defend themselves forcefully against any accusation that comes their way, no matter how ludicrous.

"the liberals I know don't give a shit about Sandy Berger or any other political hacks."

Of course not. Liberals never cared about Joe Wilson. And outing Valerie Plame was a major breach of national security, but going into the NSA, stealing documents with the highest security clearance there -exists- in our government, stuffing them into his pants, hiding them under a trailer, and destroying several of them? Big deal. Hardly worthy of investigation or prosecution. If the Bush admin had fired lawyers for not pursuing that, I'm sure it'd be declared "less than optimal" evidence too.

I think whoever said you're an embarassment to your cause had it summed up about right.

Qwinn
3.14.2007 3:59pm
Blue Moon:
Where is the evidence (a conclusion is not evidence) that Clinton fired every USA just to cover up the firing of one?

If I get elected President, but was being investigated before I was elected, are you saying I cannot fire the USA that is investigating me? Does he have a job for the whole time I am President?

Federal prosecutors have limited resources. When Qwinn says, in essence, "You better prosecute our political enemies in the fashion and to the degree your party requires," that means that there will be less time to pursue white-collar criminals, narcotics cases, immigration, etc. I find it interesting that the explaination for Lam's dismissal is the immigration issue and the explaination for the WA USA is the electoral fraud issue. The Feds can't chase after everyone, ICE can deport the illegals in San Diego without the US Attorney being involved, and the Feds in Seattle could spend 24/7/365 doing nothing but immigration cases and never run out of cases. I'd rather have the Duke in jail and his corrupt buddies on the run that have 20 illegals in Supermax who are just going to be right back here once their 48 month sentence is complete and they get "deported."
3.14.2007 4:02pm
Blue Moon:
Qwinn:

BTW, Berger pled guilty to a federal offense if memory serves.
3.14.2007 4:04pm
Qwinn:
If I get elected President, but was being investigated before I was elected, are you saying I cannot fire the USA that is investigating me? Does he have a job for the whole time I am President?

Sorry. My hypocrisy meter just exploded. I'll be spending the next hour or so picking bits off the walls.

Qwinn
3.14.2007 4:05pm
Qwinn:
BTW, Berger pled guilty to a federal offense if memory serves.

Yes, and he was given what we'll generously describe as a slap on the wrist - a small fine, and a revocation of his ultra-high security clearance for a few years, but which will be fully reinstated by the time Hillary is in office. Which is a really important penalty, cause you know, there was a great danger of him getting appointed to National Security Advisor while Bush was still in office.

Countless intelligence workers have gone on the record to say that they've seen lives ruined for doing far far far less than what Berger did. The heads of the prosecutors in question that demanded no stiffer penalties for what he did should have rolled. And I have absolutely no doubt that -had- their heads rolled, it would be a "scandal" just like this one, while the prosecutorial misconduct in the Berger case gets a wink and a nod and a "that's irrelevant!".

Qwinn
3.14.2007 4:27pm
Adeez (mail):
"I think whoever said you're an embarassment to your cause had it summed up about right."

What?
3.14.2007 4:31pm
Blue Moon:
My question about the prosecutor for life was really a question. Did that guy that you conclude was canned for political reasons get to be USA for 8 years?

I am not dismissing the seriousness of Berger's crime -- for guys like that their reputation (and Berger's is very low) is everything. As far as I am concerned, he should have gone to prison. He did not get off scot free, and as much as you hate Hilary, there is no way the guy will get appointed to dog catcher of D.C., much less Secy of State.
3.14.2007 4:33pm
Adeez (mail):
"If I have a major grievance against the Bush Administration, it's their bizarre reluctance to defend themselves forcefully against any accusation that comes their way, no matter how ludicrous."

Wow. I think that says it all right there. If, going back the last six years, this is the only gripe you have with this administration, then I'm afraid I can't take anything else you say seriously.

"I think whoever said you're an embarassment to your cause had it summed up about right."

What? Nevermind. I defer to my first comment.
3.14.2007 4:34pm
Qwinn:
What?

I refer you to The Ace's post, 12:37pm.

Qwinn
3.14.2007 4:36pm
Qwinn:
If, going back the last six years, this is the only gripe you have with this administration, then I'm afraid I can't take anything else you say seriously.

Of course not. Anyone who doesn't start from the basis of "Bush is the alpha and the omega of pure evil and incompetence" is not to be considered seriously by you. It's a wonder that you come to the conclusions you do, then, considering your selectivity on sourcing and argumentation.

What I have found is the vast majority of the accusations against Bush lo these six years are about as deep as this current "scandal"... an inch deep and a mile wide. The fact that you turn yourselves inside out trying to make -this-, the firing of some lawyers that can be fired for any reason whatsoever, such a serious, grandiose scandal shows how weak your position really is.

Qwinn
3.14.2007 4:41pm
Qwinn:
Alright, let's get back more firmly on subject.

1) It is not being argued that, indeed, many if not most presidents do indeed come into office and fire all or almost all the attorneys in place. This is true.

2) What -possible- reason would there be to do that, for every president to do that, if not that the president wishes to insure that they have -loyalty- to them and not their predecessor? Is there another, more relevant reason to replace all those 93 attorneys, with all the bureaucratic nightmare that certainly creates, every 4 years?

3) As such, since simple loyalty to the current officeholder is considered sufficient reason to replace every attorney, and this is demonstrated and acted on every four years, why is the Gonzales memo that recommmends retaining lawyers who "Recommend retaining; strong U.S. Attorneys who have produced, managed well, and exhibited loyalty to the President and Attorney General." causing any controversy at all?

Naturally, the LA Times Dowdifies the quote, redacting "produced, managed well, and".

You seriously can't understand why we consider this a completely manufactured scandal?

Qwinn
3.14.2007 4:49pm
Jon Swift (mail) (www):
Please wake me when this "scandal" is over. I haven't been able to get a full night's sleep since that Martha Mitchell started calling at all hours.
3.14.2007 4:50pm
lewp (mail):
Boy have the comments here gone down hill. But, to the earlier question about if Reagan did as Clinton did, here's Bush I Assistant AG, Stuart Gerson, who was also acting AG at the beginning of Clinton's term, in today's WaPo online chat:

"It is customary for a President to replace U.S. Attorneys at the beginning of a term. Ronald Reagan replaced every sitting U.S. Attorney when he appointed his first Attorney General. President Clinton, acting through me as Acting AG, did the same thing, even with few permanent candidates in mind."
3.14.2007 4:58pm
uh clem (mail):
From Jon Swift's blog:

I think Carney and other reporters realize the damage Watergate did to this country and they are trying to undo it by returning journalism back to where it was before Bob Woodward and Carl Bernstein ruined it.


Thanks for the link. This is the funniest thing I've read in weeks. So Watergate was Woodward &Bernstein's fault for reporting it, not Nixon's fault at all. Who knew? You guys crack me up.
3.14.2007 5:03pm
Qwinn:
uh clem,

I think your sarcasm and irony meters are completely broken. No one was making such claims in earnest. The writer at that link was being ironic, from beginning to end.

Qwinn
3.14.2007 5:04pm
dr235 (mail):
You really think the phrase "pleasure of the president" absolves Bush on this one? Yes, that phrase is technically operative, but it depends on what decides the "pleasure of the president." if you had a president who fired a USA every single time that USA investigated a member of the President's party, would you really defend that? Do you really think the phrase "pleasure of the president" was meant to provide cover for such an MO?
3.14.2007 5:10pm
Byomtov (mail):
Where is the evidence (a conclusion is not evidence) that Clinton fired every USA just to cover up the firing of one?

Last I heard Clinton buried it with Vince Foster. Or something like that.

It really is bizarre how any criticism of Bush is met with some complaint, legitimate or not, against Clinton.
3.14.2007 5:19pm
Apodaca:
Here's a short quiz for certain commenters in this thread:

Suppose a US President (of any party) issued a pardon in exchange for a package of direct cash gifts and sexual favors. (Posit whatever you like for the latter: heteroseuxal, homosexual, extramarital, vanilla, kink, whatever. Pick your poison.) Here are your choices:

a) The pardon authority is a plenary one, and nobody is in any position to second-guess or criticize either the appropriateness of the pardon or the President's motives for issuing it.

OR

b) The President may be held politically accountable for granting a pardon under these circumstances, especially if he &his subordinates attempt to deceive Congress &the public about the circumstances in question. Inquiry into, and public examination of, these circumstances would serve the public interest.
3.14.2007 5:22pm
Qwinn:
Just needed to point out something else I've read here in the comments that seems to be totally bogus:

Professor Kerr,

Just to let you know, both Redstate and the National Review Online have quoted you for the argument that the Attorney General scandal is (affirmatively) no big deal. I don't read your comments the same way, but apparently people may disagree.


The only quote at National Review I'm seeing regarding this is here.

I see nothing there that attempts to portray the Professor's commentary to mean that the scandal is "(affirmatively) no big deal". Nowhere whatsoever. In fact, the post seems to be quoted almost in it's entirety, with almost no commentary, so to reach the conclusion that NRO is twisting his comments you'd pretty much have to glean it out of Kerr's own commentary. If you take him describing it as a "useful rejoinder to critics complaining they're not covering the story enough"... well, sorry, but that -is- the point of Kerr's post, is it not?

I haven't checked Redstate, but considering this, I don't really feel a need to.

Qwinn
3.14.2007 5:25pm
Qwinn:
"Where is the evidence (a conclusion is not evidence) that Clinton fired every USA just to cover up the firing of one?"

Alright, fine... I retract my guess at his motives. It isentirely possible that when he fired all 93 attorneys, he didn't notice the one investigating Whitewater, and his replacing him with one that was a former law student and that buried the investigation was a total coincidence.

And you people hack at us for nitpickering? Jesus. Look. The fact that he fired a lawyer that was investigating him and replaced him with someone who dumped the investigation is utterly indefensible, IF you consider anything Bush did here to be unethical. The reason it gets brought up is because you ARE defending it, or dismissing it as iirelevant, showing that your attacks against Bush are entirely partisan. If you really felt Bush's actions here were unethical, you'd -have- to admit that Clinton's use of his authority to manipulate the whitewater investigation is inexcusable. The reason it's brought up is to illustrate how you always try to have it both ways and operate on egregious double standards. That is -always- relevant.

Qwinn
3.14.2007 5:32pm
eddie (mail):
This is the state of graduate education in this country:

Every new president brings his slate of USAs at the beginning of his term. To talk about Clinton doing the same thing is irrelevant and an insult to the intelligence of anyone who purports to be interested in the study of law (and has the intellect to successfully navigate such a study).

However, a mass replacement in the middle of a second term? A mass replacement that was initially justified by false statements made to Congress under oath? A mass replacement that came as a result of complaints from legislators who felt that the USAs in question were not properly supporting their own political party?

At what point does this become of interest to a legal blog? It is this shameful type of behavior from our educators that has given rise to individuals who are considered "respected" members of various bars to demean the concept of justice.
3.14.2007 5:42pm
Qwinn:
Gah... excuse me. I just choked on a huge piece of elitist intellectual snobbery.

*cough*

"Eight" now equals a "mass" replacement when compared to "Ninety Three"?

For that matter, why the hell does it matter when in his term he does the replacing? Is it possible he had, you know, other priorities? And as has been noted, didn't the process of these firings begin right after Gonsalez's appointment? Clinton's mass firings were, as has been noted regularly, right after Reno's appointment.

Seriously - any complaint that is based on the -timing- of the firings is, IMO, utterly irrelevant and completely bogus. The guy either has the authority to fire people or he doesn't... it's not restricted to his first days in office, it never has been, and to do so is not some ethical lapse. To claim some intellectual and educational superiority while trying to turn "I question the timing" snark into an urgent matter of law is, frankly, laughable.

And if, as has been previously demonstrated by other presidents every four years, simple loyalty is enough to justify what really DOES count as "mass" replacements every 4 years, why is simple loyalty not sufficient when Bush does it? Why is it even remotely controversial? Or can you give me a -different- reason for why Clinton fired the 93, if not because he wasn't even willing to take the -chance- that they weren't "his" in terms of loyalty, lock stock and barrel?

As noted previously: egregious double standards applied liberally.

Qwinn
3.14.2007 5:54pm
Byomtov (mail):
The fact that he fired a lawyer that was investigating him and replaced him with someone who dumped the investigation is utterly indefensible, IF you consider anything Bush did here to be unethical. The reason it gets brought up is because you ARE defending it, or dismissing it as iirelevant, showing that your attacks against Bush are entirely partisan.

Why does anything Clinton did or didn't do have anything to do with whether Bush did anything wrong. Suppose, for the sake of argument, that you are right and Clinton did something indefensible and all those now criticizing Bush said nothing. Why does that make Bush innocent? It doesn't.

It's hypocrisy? Well, giving Clinton a pass and criticizing Bush is no worse than criticizing Clinton and giving Bush a pass. If you want to defend Bush and Gonzales do it, but attacking Clinton instead suggests you don't have much of a defense.
3.14.2007 5:57pm
Justin (mail):
Well, I guess that depends on the definition of "useful rejoinder" (I didn't interpret the NR blogpost to be so focused on why Orin Kerr, and Orin Kerr alone (or even along with the VC), was not engaged in such criticism, but as a defense of all conservatives).

Here's redstate
3.14.2007 6:02pm
Qwinn:
I have argued repeatedly why what Clinton did is indefensible and what Bush did -is- defensible. It's not that they did the same thing - I'm not simply arguing hypocrisy. What Clinton did was manifestly worse. He interrupted an investigation on -him-, and killed it. Claims that Bush did similar for an "ally" because a lawyer was fired that was investigating Cunningham fall apart on the basis that Cunningham -was- convicted, without any intermediary scandal required to make that happen the way scandals were necessary to restart Whitewater. And aside from that... there's no "there" there in what Bush did that even comes close to firing the lawyer investigating you and replacing him with a former law student of yours that nixes the case. Why can't you just admit that?

Qwinn
3.14.2007 6:04pm
Justin (mail):
"What Clinton did was manifestly worse. He interrupted an investigation on -him-, and killed it."

Yes, Clinton *sure* managed to keep people from investigating any part of any of his actions.
3.14.2007 6:28pm
Anti uh clem:
For all those defending Clinton -- did you ever do your homework? Reagan didn't mass-fire Carter's USAs. Carter didn't mass-fire the Nixon-Ford USAs. Nixon didn't mass-fire the Johnson USAs.

Why not? Because it was an acknowledged principle that one did not disrupt ongoing investigations just to put your side in control. You replaced the USAs incrementally so as not to disturb ongoing cases.

So, Clinton's firing was either an unprecedented case of political hackery getting in the way of the good of the nation, or a deliberate effort to obstruct justice by killing ongoing investigations inconvenient to himself, or both.

Now, what's the worst-case in the Bush firings? They were either political hackery getting in the way of the good of the nation, or a deliberate effort to obstruct justice by killing ongoing investigations inconvenient to himself, or both.

That is, while the details of the firing aren't the same, the scandal is identical in both cases. Anyone who insists otherwise gets a 60 on his IQ test.
3.14.2007 6:38pm
Qwinn:
Yes, Clinton *sure* managed to keep people from investigating any part of any of his actions.

Nice try, Justin, ignoring the rest of the post that rebuts yours. The fact that further scandals reignited Whitewater and caused a special prosecutor to be appointed (because somehow the regular process failed - HMMMM) was already mentioned in the post. Also relevant, your argument rebuts the current charge flying around that Bush was trying to protect Cunningham - who wasn't simply investigated but convicted without any scandals or special prosecutors required to reignite the charges against him.

I'm sorry if repeating the points already made make you look dumb for ignoring them in the same post you quoted, but hey, next time, don't ignore them.

Qwinn
3.14.2007 6:46pm
Public_Defender (mail):
Saying Clinton did something bad is not exactly a defense. Maybe the next time I represent someone convicted of raping an adult, I should point out that someone else raped a child. Yeah, that would get my client off.

And from a Republican point of view, comparing your president to an impeached president Republicans believed should have been removed from office ain't exactly exonerating.

There is enough evidence here to dig further. Put the people who made the decisions in the witness chair. Get their statements under oath. Get every scrap of paper and every bit of computer information on the subject.

The claim that the Democrats haven't proven that Bush acted corruptly just demonstrates why more investigation is needed.

Also, when a subordinate official takes actions with the full knowledge of a higher level official, it is cowardly for the higher level official to feed the subordinate to the wolves. Gonzales should resign for this reason alone.

He should also resign for saying "mistakes were made." That should be automatic (and yes, I know some Democrats have said that, too).
3.14.2007 6:55pm
lewp (mail):
Qwinn, were Clinton's appointments when he took office confirmed by the Senate? Did the AG's office use a provision slipped into the Patriot Act to circumvent that confirmation process? (Btw, what was the justification for that provision when it was inacted? Was it needed for situations like this one?) And, in light of your defense of Bush here, why do you suppose the AG has admitted that "mistakes were made", and why has the AG's chief of staff been forced to resign? And it looks like John Sununu has joined the calls for Gonzalez to resign. Why do you suppose that is?

Oh and when did the raving lunatics from LGF start showing up at Volokh?
3.14.2007 7:00pm
The Ace (mail) (www):
Ace, no one is arguing that Bush lacked the legal authority to fire the US Attorneys. What is being argued is that he has used his legal authority in an unethical way. Got it?

And you get to define "unethical," right?

I mean, listening to the leftists here that is already been confirmed apparently.
3.14.2007 9:11pm
Kazinski:
Just one more word on the McKay firing, and why I think it was justified. That is the way the system was designed and has been run in this country by both parties since 1861. There are a lot of commentators on this page, including Christopher Cooke, who from what he says should know better. If McKay was too stupid or naive to realize what it means to be political appointee and what "serve at the pleasure" of an adminstration means, then he was too stupid or naive to be a US Attorney.


And I'd expect the same from a Democratic US Attorney too.

I think Patrick Fitzgerald's conduct in the Plame/Novak/Armitage case was a perfect example of what I'm talking about. Did he stop investigating when he discovered that Armitage didn't commit a prosecutable offense when he outed Plame to Novak? No, he kept digging as deep and as long as he could to make sure all the facts were known. Maybe he went a little too far when he grilled Libby for 8 hours in front of the Grand Jury when he already knew Armitage was the leaker, but I am not going to quibble. There is the model right there: get the facts when it is a matter of high public interest, worry about whether to file charges later.

And I'll say it one more time my view does not condone un-ethical conduct by a US Attorney, no special favors on who to prosecute or not to prosecute. But he better be able to take direction on what his priorities are. McKay didn't realize his top priority was to fully investigate election fraud and irregularities. And the purpose of these investigations is to make sure the facts are fully known, not to unfairly prosecute Democratic officials that are not doing their job through incompetence and sloth.
3.14.2007 9:12pm
The Ace (mail) (www):
Yes, Clinton *sure* managed to keep people from investigating any part of any of his actions.

Uh, nobody said "people" or "any" did they?

Nice strawman.

Then again, since you're defending the indefensible, that is expected.
3.14.2007 9:13pm
Qwinn:
*sigh*

I don't think we're going to find any intellectual honesty from the Left in this debate, I'm afraid.

But here, I'll give it one more try.

This is a great post by Andrew McCarthy on NRO. He, like me, doesn't particularly like our current AG, for reasons unrelated to this.

But in that post is this great compilation:

It's remarkable that this is what it comes down to after the disgraceful Sandy Berger sweetheart plea; the inexplicable lack of movement on the Jefferson investigation (the congressman is now on the Homeland Security Committee notwithstanding two people who've pled guilty to bribing him, the happenstance of his being on tape taking a $100K bribe — $90K of which was seized from his refigerator — and an agent who's sworn under oath that he obstructed the search of his home); the about-face on Jose Padilla (now he's an enemy combatant, now he's a criminal defendant); the sudden shift of the NSA's terrorist surveillance program to the FISA court (after a year of asserting that this vital program could not work under the FISA statute); the lack of movement on any of the wartime classified information leaks; the absence of meaningful immigration enforcement against employers and on the borders; etc.

For those of you of leftist bent... try, just try for one moment, to look at that list from a Republican's perspective. Especially the bits about Berger and Jefferson, which are so absurd as to be farcical, but really, every point listed is a very good one. Meanwhile, there's no opposing side to it... Cunningham gets convicted, Republicans who commit malfeasance are getting heat wherever it's appropriate. From our perspective, Democrats alone are getting a total pass from this DOJ. From any Republican perspective, it's high time that heads there began to roll. And when they do - it's a scandal!

If you could draw up a list like that of Republicans behaving in a manner like Jefferson that were getting a pass, you'd be outraged, and rightfully so, and I'd have no way of arguing with you. But you can't. The most extreme cases of recent malfeasance in politics consist of either republicans rotting in jail or democrats promoted to chief of homeland security. That you now cry in hysterics that the DOJ is "targetting" Democrats is chutzpah beyond rational limits.

Qwinn
3.14.2007 9:26pm
Qwinn:
Sorry, mistake on my part, I shouldn't have said "chief of" homeland security. He just got promoted to be -on- the homeland security committee. With film that he took $100,000 in bribes sitting in a DOJ file somewhere, and we'll get around to prosecuting that any year now.

But really, Bush doesn't have any right to roll some heads at the DOJ. Naaaaah....

Qwinn
3.14.2007 9:33pm
Mary Katherine Day-Petrano (mail):
I would be interested in what whit thinks about all this. Where's whit?

I also wonder what whit thinks about US Attorney for Tampa, Paul Perez, suddenly resigning?

Vessel Mistress, foreign vessel, does not check into US customs at port of Tampa under O'Hare permit to proceed, so-called "owner" can't produce Cayman Island registration papers for the Vessel to prove her "owned" it, and substitute custodian and key witness for the so-called "owner" commits knowing and willful perjury -- and gets away with it!!! Now if there was ever a case of a threat to National Port Security, that would be it.

Wonder if THAT has anything to do with Mr. Perez's resignation -- perjury trumping disability civil rights, Theron Hutto, and the Vessel Mistress ... Why?

How Appealing has not picked up the story of Mr. Perez's resignation, and given the interesting timing, who only knows what is the real reason behind the superficial one being offered up to explain this resignation.

Tampa Division -- McDill/Central Command.

Why is no one talking about Mr. Perez's resignation?

What gives?
3.14.2007 9:54pm
The Ace (mail) (www):
The claim that the Democrats haven't proven that Bush acted corruptly just demonstrates why more investigation is needed.

Funny stuff.
Yes, "investigate" until the "corruption" appears.

You were for this when Clinton lied to a Grand Jury, right?
3.14.2007 10:40pm
The Ace (mail) (www):
However, a mass replacement in the middle of a second term?

Yes, because everyone now believes 8 USA's is now "mass"

Isn't it funny how you leftists must invert the language to make your "points"?
3.14.2007 10:49pm
bluecollarguy:
OK, I've got it now.

The power of the Chief Executive to replace US Attorney's appointed by the opposing party en masse at the beginning of his term with attorney's representative of the Chief Executive's politics is ethical, constitutional and politically correct.

A Chief Executive replacing US Attorney's appointed by that Chief Executive during his administration is constitutional but prima-facie evidence of malfeasance, unethical behavior and political patronage of the worst kind.

A law allowing the Judiciary Branch to encroach on the executive by making it's own temporary appointments of US Attorneys is ethical though maybe not quite constitutional.

While the law passed by Congress superceding the above law that puts the executive power back in the hands of the executive is unethical but constitutional.

Elections have consequences and the firing of the US Attorney's is a political question left to the politicians. President Bush was elected as the Chief Executive and has the power to replace US Attorney's when and where he wants. The democrats, boo/hiss, were elected the majority in Congress and now have the power granted to them by the constitution, the rules of Congress and the votes to inquire into those firings.

So, unless laws were broken or US Attorneys have been fired to cover up crimes, it would seem apt not blog about this from a legal perspective since it is a political question.

Sadly for my side, Republicans are still running dangerously low on testosterone and neuron levels but such is life.
3.15.2007 12:57am
Christopher Cooke (mail):
I thought I would respond to Qwinn. First, I do not know enough of the facts to talk knowledgeably about Clinton's firing of the 93 US Attorneys at the start of his term, and whether it was an attempt to impede an investigation of him. I suspect you do not, either. Here are some questions: 1. who suggested it--Clinton, someone in the bowels of the DOJ, someone in the White House, one of Clinton's Arkansas buddies who was feeling the heat? 2. what was the initial plan, and then what did it turn into: e.g., was it initially proposed simply to fire the guy in Arkansas, and then were other names added to the list? 3. how was the guy from Arkansas picked, or suggested for the post, and by whom? Was it Clinton? Was it someone in Arkansas, e.g., one or both Senators You keep saying he was Clinton's former law student. So what? Judge Susan Weber Wright was Clinton's former student, and she held him in contempt of the Paula Jones testimony. 4. What was the initial US Attorney in Arkansas investigating, and how related was it to the Whitewater scandal that Fiske, and then Starr initially was asked to look into? How far along was the investigation when the USAO was replaced? Also, Qwinn, you keep forgetting, the big difference between what Clinton did is that he essentially fired a bunch of Republican USAOs, to replace them with Democrat-appointed USAOs, whereas Bush is firing his own Republicans. I think the public expects the President to appoint members of his own party to such posts, as that is one of the spoils that goes with winning an election. You might say, "well, he shouldn't, he should keep professional prosecutors, regardless of their politics" and I might agree, but that has not been our system.

As for the current imbroglio, the reason I think further inquiry by Congress is warranted is that the DOJ plainly has provided Congress with false information about its reasons, the White House's involvement, etc. So, I would look into it, just because the DOJ's initial reasons have proven to be so patently false.

It may be that Bush's DOJ did nothing ethically or legally wrong in some or all of the dismissals. I do agree that it is certainly appropriate for the Bush Administration to want to make sure that the USAOs are following the Bush Administration's stated prosecutorial priorities and are good managers. So, the Bush DOJ can say that prosecuting terrorism is priority no. 1, and then demote or dismiss someone whose office is not seen as aggressive or effective in going after terrorists. That is fine, as Bush gets to set the priorities for how he wants the limited resources of the DOJ to be expended.

Indeed, I would also say it is fine for the Bush DOJ to say that "voter fraud" is a priority, and dismiss USAOs who don't treat it as such, even though some might think that is a code for going after Democrats and their supporters, as long as the DOJ goes after voter fraud, wherever it occurs and regardless of whom the fraud favors.

The reason I find the dismissals, of McKay, Iglesias, and to a lesser extent Lam, POTENTIALLY troubling are

1. Regarding McKay, he says he did look into voter fraud, said the charges were not warranted by the evidence his agents found, his conclusions were backed up by the main Justice expert on fraud, and he was still dismissed. His dismissal is either pointless (shooting the messenger), at best, or at worse, an attempt to punish a prosecutor for not bringing a baseless charge against some schmuck to get a Republican elected governor.

2. regarding Iglesias: the Domenici and Wilson attempts to get him to bring a case before the November election, solely for political purposes, which has been documented through their phone calls (which Sen. Pete admits, anyway)

3. regarding Lam: the timing of the decision to get rid of her, and her office's subpoena to Congressman Lewis and Mr. Foggo, which looks like maybe they decided to pull the plug because she was going after more the Randy old Dukester, and expanding the corruption investigation to others. It does appear, though, that Gonzales' ousted(?) deputy, Sampson, may have wanted to dump her before she began the Cunningham investigation, so maybe he was being consistent; on the other hand, it could be that others approved of dumping her only because she was getting close to Porter Goss (CIA) and Jerry Lewis, an influential Republican and was threatening to bring down other Republicans (Doolittle) in a way that could have affected the Republicans chances to hold on to the House in 2006. One other thought: I would ask the people in Lam's office what they thought of her. If they said "she was an idiot" then I would think her firing was okay.
3.15.2007 1:23am
Taltos:
Just FYI, Lam was slated for removal at least as early as feb '05 and her term technically ended last november. Hardly a mad dash to end whatever cases she may have been working on.
3.15.2007 1:29am
Kazinski:
Qwinn,
As a partisan Republican I am not really worried about an excess of zeal prosecuting Republicans and a more lax attitude toward Democratic corruption. It is a observable fact that voters are less forgiving toward Republican corruption than they are towards Democratic corruption. I can't think of the last time a Republican got caught with a hand clearly in the cookie jar and then got reelected, maybe John McCain in the Keating 5 scandal. But Democratic malfeasance can go on forever (OK, not all the time) without the malefactor being thrown out by the voters. Just for example Mollohan(D) and Jefferson(D) and Menendez(D) were reelected, and of course Murtha(D) ever since Abscam still has a lock on his seat. I'm not whining, I'm not complaining, I think it is a good reason for Republicans to keep the heat on when crooks like Cunningham(R) get caught. And when Burns(R) gets thrown out in Montana and Dorgan(D) and Reid(D) get reelected in ND and Nevada it just re-enforces the point Republicans need to be tougher on their own when it comes to corruption because their voters care more than Democratic voters.
3.15.2007 1:59am
Baseballhead (mail):
I'm not willing to slog through the 90+ posts that've gone up since I broke off, but Josh Marshall's blog had this little nugget:

Bush I Assistant AG, Stuart Gerson, in today's WaPo online chat ...

It is customary for a President to replace U.S. Attorneys at the beginning of a term. Ronald Reagan replaced every sitting U.S. Attorney when he appointed his first Attorney General. President Clinton, acting through me as Acting AG, did the same thing, even with few permanent candidates in mind.

Gerson, a Republican, doesn't seem very worked up about Clinton's actions.
3.15.2007 3:30am
tomhh (mail):
I hope people are still paying attention way down here at comment 200+. Here are some hypotheticals that I think might highlight the proper and improper use of main Justice supervision of US Attorney decision-making.

1. Attorney General says to a US Attorney: I want you to focus more of your resources on immigration cases. Does anyone see a problem with this? I don't.

2. AG says to US Attorney: I want you to focus less of your resources on political corruption cases. Seems OK, unless that particular US Attorney happens to be bringing a big series of corruption cases against the interests of the AG's party.

3. AG says to US Attorney: I've reviewed the details of a case you declined, and I think you made a mistake. Bring an indictment. OK if there is a good-faith basis for the AG's position (i.e. the AG isn't ordering indictments only against one party where there is evidence against both).

4. AG says to US Attorney: I don't care what the facts are, you blew it by not bringing an indictment in a case. This not just wrong, it's a violation of professional ethics, specifically Rule 3.8 of the Rules of Professional Responsibility -grounds for disbarment of the prosecutor who signs the indictment and the supervisor who told him to do it.

5. AG says to US Attorney: I don't care what the facts are, you blew it by bringing a case. Not a violation of Rule 3.8, but incredibly dangerous.

The question is, what was going with these particular USAs? Obviously the AG didn't explicitly say "bring a bad case", but firing someone for refusing to bring a bad case is the same thing. I don't think we know for sure, but I think there are a couple of things that really are cause for concern. In Washington the USA was apparently criticized by Republican party regulars for refusing to bring voter fraud charges. He said something like "I'm not going to haul a bunch of innocent people in front of the grand jury." If he was fired for that, we have hypothetical No. 4, above. Similarly, in New Mexico, the USA was not on the poor performers list in early fall 2006, but was put on it after he refused to bring indictments timed to help the Republicans in November. B following A does not mean A caused B, but I certainly want Congress to look into it.

I think a lot of certainty on both sides of this issue is misplaced, but particularly the side that says it knows right now that nothing was done wrong or out of the ordinary. Look at Durham NC if you don't see a danger in making prosecutorial discretion just another cynical political calculation.
3.15.2007 5:32am
Brett Bellmore:
I surely agree that the certainty is misplaced, in fact that's been my point from the beginning: That we lack the information, and the people doing that study didn't bother to collect the information, necessary to arrive at any reliable conclusions.

And, you know, prosecutors regularly haul innocent people in front of grand juries. They're called "witnesses". If the attorney didn't think vote fraud was important enough to bring witnesses in front of a grand jury, even after being shown fraudulent registrations that got voted, then he probably should have been fired.

I think what may have happened is that some attorneys didn't think vote fraud was worth worrying about unless they had proof out in the open that it was a result of a conspiracy, rather than retail fraud by unconnected individuals. While their higher ups thought it was enough that in aggregate it could have swayed an election. But I'm just speculating.

We all are, at this point. So, sure, hold hearings. Could be entertaining.
3.15.2007 8:09am
lewp (mail):
QWINN writes: From our perspective, Democrats alone are getting a total pass from this DOJ.

But these are the facts:

Donald Shields and John Cragan, two professors of communication, have compiled a database of investigations and/or indictments of candidates and elected officials by U.S. attorneys since the Bush administration came to power. Of the 375 cases they identified, 10 involved independents, 67 involved Republicans, and 298 involved Democrats.
3.15.2007 10:49am
Justin (mail):
Brett,

That still wouldn't explain Lam or Iglesias. Lam, in the view of Josh Marshall, Publius, and myself, is the biggest part of this contraversy - especcially given the Sampson memos.
3.15.2007 11:41am
Taltos:
How is anything about Lam contoversial ? The memos make it abundantly clear that they were unhappy with her stance on illegal immigration and that they were looking to get rid of her before any of the scandals broke.
3.15.2007 2:19pm
Justin (mail):
Yes, taltos, that's what the memos show. That Memo on May 11th clearly refers to immigration.

Look, taltos, if you have facts that are unavailable or unknown to everyone else, and you'd like to provide them, feel free. But asserting things for which there is simply no factual basis is no substitute for an argument.
3.15.2007 2:24pm
Taltos:
I'm confused. You're asserting that there is something controversial, my question was based on what?

What is it that I'm asserting without evidence? The memos show that Lam was on the list to be replaced as early as feb '05, the cunnigham deal didn't appear til months later. Therefore, implying that she was removed to forego an investigation (which took place) without any other evidence is ridiculous.
3.15.2007 2:51pm
Justin (mail):
Taltos, if you're talking about the "loyalty memo," then your argument isn't going to be that strong - especially if you ignore the May email.

But even for what its worth, by Feb 2005, Carol Lam had:

already convicted several San Diego businessmen in key Bush industries - pharma and insurance

And, of course, if Feb 2005 is your benchmark, then the immigration argument is bogus, as Carol Lam's prosecutions in immigration increased substantially over O'Toole in 2003 and 2004. But more important to the FGeb 2005 memo, she went from O'Toole's 3 corruption investigations over two years to 22 in the next two years.

Lam's prosecutions, by type and year

So not only does your theory (that she was fired based on Feb 05 performance reviews) not only ignores the May 11th email, but it also completely precludes the DOJ's defense, and it *still* leaves the strong inference that Lam got fired for fighting corruption in the San Diego Republican Party Machine.
3.15.2007 3:59pm
Kazinski:
Tomhh:

In Washington the USA was apparently criticized by Republican party regulars for refusing to bring voter fraud charges. He said something like "I'm not going to haul a bunch of innocent people in front of the grand jury."

I think you are misreading the critisizm, it was for refusing to do a full investigation, not becuase he didn't bring charges. Isn't that what Patrick Fitzgerald did? "haul a bunch of innocent people in front of the grand jury." Then one of them lied to the GJ and Fitz brought charges. You're making the case for firing McKay, he was a timid prosecutor that is going to decide whether there is a basis for charges before doing a full blown investigation. Fitz is going to do a full investigation, when the public interest demands, then decide if the facts merit charges, after he has all the facts.
3.15.2007 6:04pm
Christopher Cooke (mail):
McKay's context is not even close to what Fitzgerald was looking at. Here are the facts, as Fitzgerald knew them:

1. the identify of a CIA agent who had been a covert operative is leaked by a senior administration official and her name and identity as a CIA agent winds up in print.

2. the CIA, after looking into the matter, makes a criminal referral to the Bush DOJ, for possible criminal violations of the Intelligence Agents Identities Protection Act.

3. the Bush DOJ (great independent body that it is), looks into the matter briefly, realizes the "senior" official may be in the White House, and appoints a special prosecutor independent of main Justice.

4. Fitzgerald questions people, including the Chief of Staff to the VP, and the Chief of Staff to the Pres. Both provide him inaccurate information. The Chief of Staff to the VP likely lied to him in initial meetings, and so gets hauled before a grand jury, and repeats his lies.

5. the statute that was the source for the initial referral is complicated, and requires proof that the leaker knew of the agent's status as a covert operative and that the leaker learned of this status from a protected source. The evidence is mixed, re Libby, on both fronts. It appears he knew she worked in the CIA, but maybe not that she had previously worked as a covert operative in Latin America. It also appears Libby learned of her identity from the VP and others but the VP had the authority to disclose her status and so maybe Libby did too.

6. But, Fitz and the AUSAs and the FBI are convinced that Libby lied to them about how he learned of Plame's status as a CIA agent, probably because Libby had looked up the statute and had it explained to him by David Addington, and became worried that maybe he had committed a felony. Libby may also have lied to them to protect the VP's role in "outing" Plame to the press. So, they indict Libby.

Contrast this to "voter fraud" evidence that McKay had. The biggest campaign contributor to the losing candidate is "convinced" that his guy must have lost through fraud, probably because the margin of loss was so small (126 votes). So, he pokes around for evidence of problems in heavily Democratic counties, and gets the press to do the same.

McKay, a Republican, former partner at a big Seattle law firm, and former staffer for Bush 41's DOJ, assigns a task force to look into the "fraud" evidence, consisting of a FBI agent experienced in such matters and some of his best professional AUSAs. The DOJ fraud guy says he wouldn't bother, but McKay's people press ahead, and find no evidence warranting further inquiry. The DOJ fraud expert concurs, so they don't pursue it further. Of course, without seeing what "evidence" they had, it is hard to know if I would have made the same call. But, mind you, irregularities in voting rolls ---e.g., dead people who are still registered to vote-- occur in every election, and are not considered evidence of fraud. Evidence of fraud is when dead people actually vote, or when people are found to have voted twice. There are many no fraudulent explanations ---people having the same names, so actually there are two voters, who each voted once--or people whose names were not purged from the voter rolls, but who did not vote.
3.15.2007 10:27pm
Kazinski:
Christopher Cooke:

3. the Bush DOJ (great independent body that it is), looks into the matter briefly, realizes the "senior" official may be in the White House, and appoints a special prosecutor independent of main Justice.

Your facts are wrong on 3. As soon as the investigation was announced, Armitage and the DOS lawyers went to DOJ and did a mea culpa, and admitted he did the leak. In short order the DOJ confirmed with Novak that Armitage was the recipient of the leak. This was before Fitzgerald was even appointed. Neither DOJ or Fitz was ever under the misapprehension that the leak was from Libby or Rove, et al. Not that Fitz wasn't looking for their scalps. The reason for the special prosecutor, when the basic facts were already known, was to make sure the public had confidence that the matter was fully investigated and there was no cover-up.

I, as a Washington voter that was "disenfranchised" by enough illegal votes to swing the election, was never given the comfort of a full investigation. Because of a timid prosecutor that was rightfully fired for "performance reasons".
3.16.2007 1:13am
Taltos:

Contrast this to "voter fraud" evidence that McKay had. The biggest campaign contributor to the losing candidate is "convinced" that his guy must have lost through fraud, probably because the margin of loss was so small (126 votes). So, he pokes around for evidence of problems in heavily Democratic counties, and gets the press to do the same.


The entire election was a sham. Gregoire loses the initial count, loses the first recount and magically uncounted ballots start to appear out of thin air. Lo and behold they tip the balance in her favor. The overseas military ballots were mailed out late in violation of the law. The ballot counts were off all over the place. There should have just been a new election which most of the state's residents were calling for, but according to the washington constitution you essentially have to know the way every illegal voter voted which with secret ballots is basically impossible.
3.16.2007 7:59am
Colin (mail):
I, as a Washington voter that was "disenfranchised" by enough illegal votes to swing the election, was never given the comfort of a full investigation. Because of a timid prosecutor that was rightfully fired for "performance reasons".

Yes, you were. The local DOJ office investigated specific allegations, such as the claim that felons had voted illegally. The state justice department investigated, too. And according to this article, DOJ's electoral fraud specialists in DC were reluctant to even press a preliminary investigation, because there was no evidence of a federal offense. A "full investigation" doesn't mean "an investigation that results in a prosecution." Sometimes there aren't any prosecutable offenses to be uncovered. Sorry your party lost, but sometimes a cigar is just a cigar.

Perhaps you're more persuaded by the partisan bloggers than the three expert agencies who reviewed the allegations, the evidence, and the results of the investigation before concluding that there was no prosecutable offense. But all I see on this thread that's negative of McKay are the "he must be incompetent because my candidate lost" complaints, and of course the "Clinton did it first!" complaints. Neither is persuasive to me.
3.16.2007 11:28am
Ebbet:
Orin -- Just curious whether you're still "having a hard time figuring out just how big a deal [the U.S. Attorneys scandal] is?" Think the Attorney General will resign in disgrace before or after you figure that out?

Curious.
3.17.2007 12:14pm