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Dealing with Gonzales:

Two interesting op-eds in today's New York Times offer ways to deal with the troubling persistence of Attorney General Alberto Gonzales. One calls for Congress to impeach Gonzales:

A false claim not to remember is just as much a lie as a conscious misrepresentation of a fact one remembers well. Instances of phony forgetfulness seem to abound throughout Mr. Gonzales's testimony, but his claim to have no memory of the November Justice department meeting at which he authorized the attorney firings left even Republican stalwarts like Jeff Sessions of Alabama gaping in incredulity. The truth is almost surely that Mr. Gonzales's forgetfulness is feigned — a calculated ploy to block legitimate Congressional inquiry into questionable decisions made by the Department of Justice, White House officials and, quite possibly, the president himself.

Even if perjury were not a felony, lying to Congress has always been understood to be an impeachable offense.

Assuming for the sake of argument that lying to Congress about a matter on which Gonzales might have refused to testify amounts to an impeachable "high crime [or] misdemeanor," it's not necessarily the case that Gonzales lied. His claims not to recall key events in the firing of the U.S. Attorneys may have been, in descending order of seriousness, (1) conscious lies designed to thwart congressional oversight and shield wrongdoing by Gonzales or the White House, (2) conscious lies designed to protect what Gonzales believed were matters protected by executive privilege (without actually claiming the privilege), regardless of their effect on congressional oversight or on protecting allies, (3) gross nonfeasance or incompetence, which caused him to fail to devote sufficient attention to the matter, and thus not to remember these events because he was concentrating on others, or (4) genuine forgetfulness. I think something like #2 or #3 is most likely. In the case of #2 Gonzales should have invoked a politically costly executive-privilege claim. All four are sufficient reason for Gonzales to resign.

But as a prudential matter I am reluctant to say at this point that Congress should begin impeachment proceedings, even if it has the right to do so. For better or worse, impeachment is the nuclear option in American politics. Only one other executive cabinet member has ever been impeached. No attorney general has ever been impeached; when they get in bad trouble, they tend to resign, which Gonzales may yet do. Impeachment proceedings against an AG would be a time-consuming and absorbing national drama which, however constitutionally warranted, may still be avoided through resignation. Impeachment proceedings would increase the political pressure on Gonzales to resign, but they might also cause the administration and its supporters in Congress to dig in their heels against a "partisan" Democratic Congress.

The main role of Congress here is not to impeach, but to make sure that when the Executive branch exercises its power in a way that undermines confidence in the Justice Department, it is called to political account. That is what has happened and is happening in the case of Alberto Gonzales, even with his claims of amnesia, which are bringing public ridicule and contempt upon him and the administration. My hunch is that he will try to find a face-saving way to resign in the next few months. The question is whether waiting that long will do so much damage to the functioning and credibility of the DoJ that we ought to begin impeachment proceedings (which might also take months), to increase the pressure on him to go sooner. I don't think we're there yet.

The second op-ed is more radical, calling for structural reform at the Justice Department:

I suggest we begin by making the attorney general job no longer a cabinet position. . . .

The solution is to have the attorney general appointed to a fixed term — say, 15 years — that wouldn't be coterminous with the tenure of the president who appoints him. As with the director of the F.B.I. (a 10-year term) and the chairman of the Federal Reserve (a four-year, renewable term), the appointment would be made by the president with the advice and consent of the Senate. Congress's oversight would ensure that no political hack or crony of the president could be handed the job.

Likewise, the 93 United States attorneys should not be political apparatchiks, but talented lawyers selected half from Republican ranks and half from Democratic, following the system used for regulatory bodies like the Federal Communications Commission. These men and women should also be subject to Senate confirmation.

Changes in the occupant of the White House should not affect the way justice is administered. If the Gonzales mess ends up giving us an apolitical Department of Justice, the American people will be well served.

I have several concerns about this proposal. First, while the term of the AG would be longer, the process by which she's chosen would be basically the same. President nominates, Senate confirms. If Congress hasn't already exercised sufficient oversight to ensure that hacks and cronies aren't appointed, it's not clear why that would change much (though a longer term for the AG might make Senators take their job somewhat more seriously). What seems most to drive real oversight on appointments is not the particulars of Congress's structural role but whether it is in the hands of the opposing party. That partisan reality is unchanged by the proposal.

Second, I'm not sure we'd profit from an AG "independent" of the president and removable (presumably) only by impeachment. The experience of the FBI, for example, does not inspire much confidence. Incompetence and abuse of power come just as easily with "independence" as with hackery. I'd be concerned about a tyrannical, long-serving AG in the mold of J. Edgar Hoover who couldn't be removed easily by impeachment or forced to resign.

Third, I don't see how the proposal would really give us an "apolitical" Justice Department so much as a "bi-political" one, with both Democrats and Republicans getting their favored candidates in particular U.S. Attorney offices.

Finally, the proposal would represent a serious diminition of the President's power and duty to take care that the laws be faithfully executed. It's not that the proposal is unconstitutional. It's that it's constitutionally unwise. It's a break with two centuries of tradition, under which we have usually had acceptable and competent AGs and sometimes outstanding ones. We may think that President Bush has abused his authority, made extravagant claims about executive power, and even violated the laws he is supposed to enforce. But he will not always be the president. When there are other ways to deal with his excesses, as there are, it seems to me short-sighted to base fundamental reform of the executive branch on the sometimes disquieting experience of his presidency.

Badger (mail):
"But as a prudential matter I am reluctant to say at this point that Congress should begin impeachment proceedings, even if it has the right to do so. For better or worse, impeachment is the nuclear option in American politics."

Isn't using the Department of Justice to prosecute political enemies and shield political allies the real nuclear option of American politics (not to mention American democracy)?

"conscious lies designed to protect what Gonzales believed were matters protected by executive privilege (without actually claiming the privilege), regardless of their effect on congressional oversight or on protecting allies"

Really? You think Gonzales goes to bed every night thinking "God, how I wish I could tell Congress about my breathtaking incompetance/political hackery! But if I did that it would infringe on the president's right to obtain private counsel and privately order me to undermine everything the Department of Justice stands for! Oh my damned adherence to sketchy interpretations of the Constitution!"
5.3.2007 2:06pm
Justin (mail):
I'm sort of with Badger. Gonzales himself is simply a distraction from the real issue, which as he mentioned, was whether there was widespread manipulation by the White House of their prosecutorial power for political gain. I do not think it is smart if effective future deterrence is "avoided through [Gonzales's] resignation." Only if either a true remedy is enacted (a radical version of which you reject), or the Republican party faces serious and substantial long term political consequences (thus ruining any benefit to their actions), will the problem be successfully resolved, imho. Gonzales's continued presence at the AG's office is the least of my own concerns, particularly given that we now know he was probably *not* the one who directed the prosecutorial misconduct.
5.3.2007 2:20pm
PatHMV (mail) (www):
Justin, you refer to "prosecutorial misconduct" as if it was a given, long-since proved. Exactly what do you think the prosecutorial misconduct was? Have you any evidence that any on-going investigation was interrupted or hindered in any way by the replacement of the 7 or 8 U.S. Attorneys that started this controversy?

Unwise political moves do not constitute "prosecutorial misconduct." Rather, prosecutorial misconduct occurs only when a prosecutor acts, by deciding either to prosecute a non-criminal or to not prosecute a real criminal. Who was the real criminal not prosecuted because of Gonzales? Who was the non-criminal who was prosecuted?
5.3.2007 2:34pm
PatHMV (mail) (www):
Same question to you, Badger... which political enemies were prosecuted when they weren't guilty? Which political allies were shielded from prosecution? Last I checked, even Jack Abramoff was being prosecuted by the Department of Justice, being pressured to give up the government officials who aided him.
5.3.2007 2:36pm
AF:
The argument against impeachment isn't just prudential, it's also constitutional. There's not enough evidence of a high crime or misdemeanor. Of the 4 possible explanations for Gonazales's testimony listed by Prof. Carpenter, only (1) and (2) are impeachable offenses. Options (3) and (4) are not. Similarly, while destroying the tradition of non-partisan US attorneys is a bad thing, it's not a high crime or misdemeanor. Only if there is near-conclusive evidence of lying or lawbreaking should Congress impeach.

(I'm not saying that incompetence is never impeachable -- I just think, as bad as Gonzales is, it has to be worse to rise to the constitutional level).
5.3.2007 2:44pm
Dave Hardy (mail) (www):
It'd seriously reduce accountability. There is little enough as it is. In most states the AG is elected, and you can un-elect them. Right now the national AG is appointed, but at least you can un-elect the president who hired him, and so when the AG becomes a big enough political liability, the Pres. has to ditch him. With the proposal the entire of the president's responsbility to take care that the laws be faithfully executed is handed to a fellow with a long, fixed, term, whom the people or their political system can remove only by impeachment.

Most would be staggered by the idea of giving the president a 10-15 year renewable term of office. I see no reason to hand over a major part of his responsbilities to a person with that term.
5.3.2007 2:50pm
Eli Rabett (www):
Just as prosecutors can indict a ham sandwich, Congress can impeach Gonzales, the difference being that the ham sandwich is tastier, and the Senate can convict. Thus this reduces to is it prudent to do so. If the administration remains intransigent, it may become so, rapidly.

Now the question of prudence is interesting. For over 200 years more or less it was not necessary to think of professionalizing the AG position because the prosecutorial part of the DOJ was insulated from the political side (possible exceptions being Mitchell and Daugherty:(. This administration broke those prudent limits, which leaves us with the choice of impeaching and convicting Gonzales as an example to discourage others in the future a la Admiral Bing, or to professionalze the DOJ. You like neither. Tough. You have a choice of the worst of two options. Speaking for myself the first appears the better choice.
5.3.2007 2:51pm
Justin (mail):
We know of the Wisconsin case, the Missouri ACORN case, and we now know of the pressures put upon the Washington and New Mexico AGs. All of those qualify as prosecutorial misconduct.

But sure, there's more to learn - particularly about the Lam case - but if you want, throw the word "alleged[ly]" into my posts. Doesn't change anything.
5.3.2007 2:54pm
PDXLawyer (mail):
I don't understand why we want a "non-political" government. That's what we had before the Revolution.

I also agree that the evidence of practice is against making high goverment officers immune from oversight and direction by the President. Sure there can be abuse of administrative power for political ends (though the evidence of such abuse in this case is thin, at best). But there can also be abuse of administrative power for ideological ends, or simply because it is easy and fun for the administrators. My experience with the government is that abuses driven by ideology, convenience or sheer power tripping are much more common than political ones.
5.3.2007 2:58pm
Badger (mail):

which political enemies were prosecuted when they weren't guilty?

So far, Georgia Thompson, Carl Malinga, and Pittsburg Mayor Tom Murphy have been cited as examples of USAs bringing weak charges on prominent politicians with suspicious timing. There are probably many more. Also, studies have been released showing that if you are a local Democratic politician you are seventimes more likely to be investigated than if you are a Republican politician.


Which political allies were shielded from prosecution?

So far, both USAs investigating Rep. Jerry Lewis (R-CA) for fraud have resigned suddenly in the last 5 months. Of the 8 prominent fired USAs, at least 3 were involved in investigating GOP officials (Bogden, Lam, Cummings). But it's not that these firings prevent the prosecution, but it sends a message. It's the same reason why Baltimore drug gangs sometimes kill state's witnesses after they've already testified. It's to discourage the next guy.



"Similarly, while destroying the tradition of non-partisan US attorneys is a bad thing, it's not a high crime or misdemeanor."



If, as a matter of policy, party affiliation plays a role in who goes to jail and who doesn't, then we don't live in a free republic anymore. It doesn't get any simpler than that. Anyone official undermining such a critical bedrock of American democracy is committing a "High Crime".
5.3.2007 3:12pm
Clayton E. Cramer (mail) (www):
Perhaps we should elect not only the U.S. A-G, but many other Cabinet posts as well? Right now, when we elect a president, we get a defense policy, a foreign policy, a health and human service policy, all mixed together. Wouldn't it be interesting if you went to vote in November to be able to pick how you wanted various departments of the executive branch run by electing each of these Cabinet secretaries separately? I could vote for Newt Gingrich for Secretary of Health &Human Services; Bob Barr for A-G; Condi Rice for Defense Secretary; and Dave Hardy for Treasury Secretary (because BATF reports to Treasury).
5.3.2007 3:15pm
Clayton E. Cramer (mail) (www):
Badger writes:

Isn't using the Department of Justice to prosecute political enemies and shield political allies the real nuclear option of American politics (not to mention American democracy)?
It wasn't when President Clinton fired all 93 U.S. Attorneys to stop investigations in Whitewater.
5.3.2007 3:16pm
Clayton E. Cramer (mail) (www):
Badger writes:

There are probably many more. Also, studies have been released showing that if you are a local Democratic politician you are seventimes more likely to be investigated than if you are a Republican politician.
If you read Donkey Cons, you will discover that Democratic Congressman over the last 40 years have much higher rates of conviction or resignation under indictment than Republican Congressmen. Perhaps it is the culture of corruption dating back to Aaron Burr and Tammany Hall that is the problem?

If Republicans weren't being indicted and convicted, I would find your concerns a lot more plausible. But does anyone seriously find it implausible that big city politicians (overwhelmingly Democrat) are more corrupt than politicians who represent small cities?
5.3.2007 3:19pm
PDXLawyer (mail):
Justin:

You referred to the New Mexico AG, who is a different person than the New Mexico USA who got fired. I don't know if this is because your passion has made you careless, or you're a non-lawyer to whom this seems an irrelevant detail. I don't mean to be a professional snob, but if you're going to convince me with your argument, you have to start by convincing me that you have correctly described the facts.

In the New Mexico case, the only pressure I've read about came from a Senator, not the DOJ. Did I miss a news item, or are you assuming that there is yet-undiscovered pressure, which the fired USA who reported the Senator's pressure failed to mention? Also, as far as I know nobody has suggested that anything was actually done (prosecutions started, ended or changed) in response to this pressure. Again, is there a news item I've missed? Bad personnel decisions in respect to prosecutors are simply not "prosecutorial misconduct."

You also referred to the Missouri ACORN case. I assume the argument here is: (1) ACORN didn't do anything wrong in fact; (2) the DOJ knew this; and (3) the DOJ prosecuted. Assuming (1) and (3) are correct, without (2) this was a mistake, not misconduct. Mistakes in prosecutions - defined as prosecuting someone who is not subsequently convicted - are regrettably common, since prosecutors are only human. How do you know this was misconduct rather than mistake? Is this a deduction based on Republican control of the DOJ or is there more?

I agree that how Gonzales handled the USA personnel decisions is troubling. I also don't like how he handled talking to Congress about it. But if there's more to this "scandal," beyond a Democratic persecution mania, I'd like to know what it is.
5.3.2007 3:26pm
PatHMV (mail) (www):
Eli... the alternative which you don't mention is to simply rely on the political process to cause the next president, regardless of party, to appoint someone who will reprofessionalize the Department.

At some point, this issue will grow large enough that the presidential candidates, of both parties, will be forced to comment on it. The Democrats will, of course, attack Gonzales himself, and personalize the whole thing as part of their general "Bush is evil" message. If any of our reporters have any sense left and willingness to ask tough questions, they will force them to also opine on Clinton's beginning of the politicization process (the firing of the U.S. Attorneys, the FBI background files of political enemies in the hands of a White House political staffer, etc.). With adequate pressure, they'll have to promise to appoint an apolitical attorney general, who will reinstitute the previous tradition of professionalism.

The Republicans won't attack Gonzales directly, for the most part. But they will fall all over themselves agreeing that the Attorney General should be a respected figure, and that a priority in the Department should be to remind all of its employees that they are there to enforce the Constitution and laws of the country, while also implementing the appropriate policies vested in the President by those statutory and constitutional provisions.

Anyway, all those public promises will be remembered by the other party during the confirmation process for the new president's AG appointee.

Oh, and Badger... that "study" is not worth the paper it's not printed on, as I explain here (as well as in the earlier posts I link to in that post).
5.3.2007 3:30pm
PDXLawyer (mail):
Badger:

Can you cite the studies which have shown that Democratic local politicans are seven times more likely to be investigated? Ought to be interesting to look at the details.

Also, if this were driven by partisanship rather than different rates of actual misconduct, then one would presume that the ratio of Democrats to Republicans convicted would be lower than the investigation ratio. Do you have any data on this point?
5.3.2007 3:34pm
Just Dropping By (mail):
Prof. Carpenter,

The system being proposed in the second op-ed piece is simply a variant of the one currently used for members of the Federal Reserve Board of Governors (who serve staggered 14 year terms). Do you have any evidence that the possible problems you identified with regard to the AG proposal have happened with the Fed BoG?

DC: Two important differences: (1) The FRB is a multi-member body, which diffuses the power of any one person and reduces the likelihood of abuse of power and the harm of incompetence. The new AG would be the unitary head of what is effectively a new branch of government. (2) The FRB sets monetary policy; the DoJ prosecutes people. The former is certainly important, but the latter directly threatens liberty.

On both counts, the FBI director is the better model for this proposed reform.
5.3.2007 3:37pm
Badger (mail):
PDX: The study is cited in my post.
5.3.2007 3:38pm
Badger (mail):

But does anyone seriously find it implausible that big city politicians (overwhelmingly Democrat) are more corrupt than politicians who represent small cities?


What, in particular, makes corruption in big cities more likely? In small towns and counties there are still plenty of cookie jars to put one's hand in and less oversight from local press.
5.3.2007 3:47pm
Brian K (mail):
PDXLawyer,

I can't comment on pressure to the NM AUSA, but there was definite pressure on the WA and AZ AUSA's from both the White House and the DOJ.

link
5.3.2007 3:47pm
PatHMV (mail) (www):
PDX... the study which Badger cites for the "political profiling" claim is worthless. My post above links to the thorough debunking I gave it when it first started making the rounds.
5.3.2007 3:50pm
Martin Ammorgan (mail):
If Gonzalez had either the honesty, decency, or class to ever resign, he would have done so already.
5.3.2007 3:55pm
Martin Ammorgan (mail):
PatHMV-Please note that Mccain has already called on Gonzales to resign.
5.3.2007 3:57pm
Clayton E. Cramer (mail) (www):

What, in particular, makes corruption in big cities more likely? In small towns and counties there are still plenty of cookie jars to put one's hand in and less oversight from local press.
1. The size of the contracts are much larger. How much money can you steal out of a contract for service without it being noticed? If you can take 5% of the total value of the services without it being noticed (which doesn't seem implausible, not having ever done this sort of corruption myself), then 5% of a $200,000 contract is about $10,000--a nice little chunk of change, but is it worth it for the risk of going to prison? But 5% of a $20,000,000 contract is a million dollars. Steal that much every year, and you can live pretty darn well.

2. I dispute that small town newspapers don't provide as much oversight. Boise's mayor several years ago got caught for an amount so small that a big city mayor would have boasted about it to the press.

3. Much of big city politics in this country is so hopelessly corrupted by the race issue that there is little risk of local forces prosecuting a crook.

4. Big cities have significantly larger corruption problems connected with vice. The Pendergast machine that ran Kansas City, Missouri, and elected Harry Truman as vice president, was built on gambling, prostitution, and alcohol. Now, there's vice in small towns, no question, but prostitution thrives on anonymity, something that is a lot easier in big cities than in small towns. Where I grew up in Los Angeles, Hollywood Blvd. was wall to wall female prostitutes; Santa Monica Blvd. had, quite literally, a young man (sometimes a boy) every 40 feet for several miles offering himself for sale. There's nothing like that even in cities that I have lived in with 100,000+ people.
5.3.2007 4:07pm
Clayton E. Cramer (mail) (www):
Brian K writes:

I can't comment on pressure to the NM AUSA, but there was definite pressure on the WA and AZ AUSA's from both the White House and the DOJ.

link
I'm confused. One of the pages at that location indicates that the AG was telling them to devote more energy to obscenity prosecutions. You probably find such prosecutions silly, and I would agree that there were probably more important crimes to pursue. But that's not a political misuse of the system.

The other indicated that the WA AUSA had failed to prosecute voter fraud. Now, since you like the results of that voter fraud, I can see why you might see this as a political firing, but voter fraud in that election was pretty obvious. That's not a political abuse of power.
5.3.2007 4:14pm
Montie (mail):
Badger, how was the data collected in that study?
5.3.2007 4:25pm
Viscus (mail) (www):
Very interesting post. I must say I disagree with the idea that these two things are really in descending order of badness:


(1) conscious lies designed to thwart congressional oversight and shield wrongdoing by Gonzales or the White House, (2) conscious lies designed to protect what Gonzales believed were matters protected by executive privilege (without actually claiming the privilege), regardless of their effect on congressional oversight or on protecting allies


Lying to Congress,especially by a member of the executive branch, is a truly despicable offense, and no concern about executive privilege justifies or even mitigates such an offense.

The only time it would be justified to lie to Congress is if it somehow would prevent death or serious bodily harm to some person (i.e. a member of the military), and refusing to answer would, for some plausible reason, not prevent the serious harm. Other than that, lying to Congress is just wrong. If you want to invoke executive privilege, then do so.

Note also, that if Gonzales lied because of his beliefs about executive privilege, he did not do so to protect executive privilege itself, but rather merely to prevent political consequences for invoking it. Thus, really (2) merges with one. If he lied because of his beliefs about executive privilege, he did so "to thwart congressional oversight" and shield the White House from political consequences.
5.3.2007 4:27pm
GetReal (mail):
Badger:
Read the "study" cited in your post.

It could serve as a poster child for lousy methodology.

Or maybe I don't understand. Please help me by reconciling these two statements from the study:

1. "We compare political profiling to racial profiling by presenting the results (January 2001 through December 2006) of the U.S. Attorneys' federal investigation and/or indictment of 375 elected officials."

2. "The current Bush Republican Administration appears to be the first to have engaged in political profiling."
5.3.2007 4:33pm
DrGrishka (mail):
It seems to me that this so-called "depolitization" of teh DOJ is a recipe for a Constitutional nightmare.

Just a couple of questions. Would the SG still report to the AG or to the President? If the former, would the "Government" as represented by the SG, be forced to argue positions that may not be supported by the President but are supported by the AG? In other words, let us suppose that the President wishes his SG to argue that Roe must be overruled (or preserved) while the AG (because he is of a different party and different political persuasion) wants to argue just the opposite. Whose view is SG supposed to present to the Court?

Furthermore, if DOJ becomes "apolitical" how is the President to exercise his discretion over which cases to prosecute most vigorously and which to benignly neglect? If the AG believes that the most pressing law enforcement need is financial crimes, while the President believes it's illegal immigration, how is the President to ensure that the AG carries out his wishes and spends time and money accordingly?

In short, the idea of making AG "independent" seems like a lot of nonsense to me.
5.3.2007 4:34pm
Justin (mail):
Wow...PDX, you caught me in a TYPO!!!! Congrads, your arguments are all correct and mine are all incorrect.

"In the New Mexico case, the only pressure I've read about came from a Senator, not the DOJ." Who, you know, then complained to the DOJ, who put him on a list of people disloyal to the White House and then fired him. Duh.

"You also referred to the Missouri ACORN case."

Link

PDX, rhetoric is not argument. And this is a comment section of a blog. Some of us have jobs. When we write something and offhandedly refer to something else, there's the expectation that most people know about the reference, and when they don't, they can easily research it. So please excuse me the next time I write a comment and don't footnote it. If you're actually interested in finding out the answers (hah!), then you can go look it up yourself. Try Google, remarkable tool.
5.3.2007 4:37pm
Brian K (mail):
Clayton, HAHAHA...your political hackery apparently gets in the way of your ability to read.

1) The WA AUSA didn't bring voter fraud charges against anyone because...surprise surprise...there was no voter fraud. The judge handling the case dismissed all of Rossi's claims of fraud. Sure, there were irregularities, but that does not mean their was fraud. If you believe that irregularities are enough to prove fraud why aren't you clamoring for charges to be brought in other counties in other states (e.g. ohio and florida) that had irregularities also? Is it because those irregularities helped republicans? (this is rhetorical...i know your answer is yes)

2) go back and read the WA AUSA's answers to questions 1 and 2. he was not "punished" for not bringing charges of voter fraud...he was "punished" for "mishandling" the election. How did he "mishandle" the election? He didn't use the power of his office to give it to the republican candidate.
5.3.2007 4:48pm
CheckEnclosed (mail):
The Democrats should consider the possibility that they will win the next presidential election and that their administration, like all administrations, will have its share of scandals and screw-ups. They will be much better off if they do not create the impression that impeaching the other guy/gal is something that everybody does. Also, they might lose.

In any event, why would they want to focus on the firing of 8 US Attorneys rather than the War in Iraq?
5.3.2007 4:48pm
Montie (mail):
So, now the AG has to be independent from the political influences as well? Then, I would suggest that we make that we make all executive branch functions into independent departments. Obviously, we would want to keep the influence of our elected officials over our bureaucrats to a minimum.
5.3.2007 4:54pm
Badger (mail):

The Democrats should consider the possibility that they will win the next presidential election and that their administration, like all administrations, will have its share of scandals and screw-ups. They will be much better off if they do not create the impression that impeaching the other guy/gal is something that everybody does. Also, they might lose.


Wow, that's an interesting theory of public integrity. If you see a political opponent do something that's possibly illegal or questionable, and you're in a position to do something about it... don't, because later on some guy you're an ally with might get accused of doing something bad and then you'll really be in trouble.
5.3.2007 5:06pm
Brian K (mail):

They will be much better off if they do not create the impression that impeaching the other guy/gal is something that everybody does.


you mean like how the republicans impeached clinton?
5.3.2007 5:15pm
Al Maviva (mail) (www):
the alternative which you don't mention is to simply rely on the political process to cause the next president, regardless of party, to appoint someone who will reprofessionalize the Department.

Hah, that's one of the more ridiculous assertions I've heard in a while. It rests on the assumption that DOJ consists of ~9,000 political hacks, breathlessly awaiting Karl Rove's daily talking point fax.
5.3.2007 5:22pm
PatHMV (mail) (www):
Martin... I agree that Gonzales should resign. Where did I say otherwise?

DrGrishka... speaking only for myself, I don't mean "apolitical" in an absolute sense. It is entirely appropriate for the President to implement his policies through the cabinet and lower appointed officials. That's why I oppose any structural change which would reduce the President's legal control over the Attorney General.

BUT, there's a big difference between implementing the President's agenda and being a partisan warrior. One can be properly loyal to the President without being a "yes-man," and without seeking to fill a bunch of government positions with your ideological clones, particularly when those positions exercise very little, if any, discretion.

I've worked (as a law clerk) in a U.S. Attorney's office. I still have friends in that world. You can spot the professionals from the partisans a mile away. Sometimes the professionals have a strong affinity for one party, sometimes for the other. But their primary affinity is for the job, and for justice. I get the distinct impression that Attorney General Gonzales has his priorities backward, and has appointed (or rather, let his underlings appoint) more partisans than professionals.

And just to be clear, I support the President and the AG's right to replace those 7 or 8 US Attorneys, for any reason or for no reason, even for political reasons. I am quite certain it was not intended to interrupt or derail any ongoing prosecutions or investigations. But looking at the sum total of his actions as Attorney General, I think the unwise actions have significantly outweighed the wise ones, and so I think he should resign.
5.3.2007 5:46pm
PDXLawyer (mail):
Justin: The problem isn't typos, its confused thinking. A typo is when your figners hit the wrong keys or in the wrong order. New Mexico does have an AG (Gary King - I Googled him). If you aren't familiar enough with the difference between a state AG and a USA to quickly realize that one is a state official and the other federal, maybe that should tell us something.

Similar note to BrianK: A United States Attorney is the head prosecutor in a federal judicial district. An Assistant United States Attorney is one of the dozens or hundreds of prosecutors who work in a United States Attorney's office. The relationship between a USA and an AUSA is like the relationship between a sheriff and a deputy sheriff. Also in some cases, like New Mexico and Oregon, there is a single federal judicial district covering the entire state, so only one USA in the state. In other cases, like Arizona and Washington, the state is divided into two or more federal judicial districts so there is more than one USA in the state. Thus, when you wrote "The WA AUSA" you really meant "the USA for the WD of WA" (waiving Blue Book rules, which are silly).

Distinctions like these can be important. I followed the WA governor's election, and I think the court there came to the right result. Doesn't mean that there was no fraud in fact - only that the proof presented to the judge wasn't sufficient to justify overturning the decision of the electoral officials. All non-delusional judges understand the distinction between "truth" and "proof" - since they are mere mortals, they have to rely on "proof" and hope that gets them close to "truth."

One of the problems I have with the anti-Alberto Gonzales arguments is that they tend to fudge the truth/proof distinction. On factual assertions which cut against AG they are content to rely on allegations or suspicions as if they were proven truths, while on factual assertions in his favor there is a demand for ironclad proof. In other words, they employ evidentiary rules designed to support their previously-formed conclusions. I count this as fuzzy thinking, and it won't convince me (unless, of course, I already agree with you).
5.3.2007 5:52pm
NickM (mail) (www):
The Washington state judge did not find that there was no voter fraud. What he did rule was that under Washington law, finding over 1700 illegal votes in an election with a 129-vote margin was not grounds to invalidate the election without proof as to whom those illegal votes had been cast for.

The mention of Pittsburgh mayor Tom Murphy is funny - he wasn't indicted.

Nick
5.3.2007 5:54pm
PatHMV (mail) (www):
Al Maviva... what in the world are you talking about? I'm a staunch Republican. As I just got through explaining, I've defended a whole lot of what's gone on in the Justice Department from unjustified criticism.

But I'm telling you that, based on my own personal conversations with people who know what's going on on the ground within the Justice Department, that there's a very different attitude there than there was historically. That hardly means that I think Karl Rove sends talking points to all DOJ employees, or that all of them have become zealous partisans. Far from it; most are good, decent people, doing their job as best they know how. But the mood within DOJ, the attitude of professionalism and justice first, partisan concerns second, is slowly going away, as people like Goodling are being put more and more in charge of appointments and policy-making. In the pre-Clinton years, Justice had (and deserved) a much better reputation for integrity than it has now. President Clinton began the process of politicalization, and President Bush has continued that process, alas (says a man who voted for Bush twice and still "approves" of his overall job performance, in the vernacular of the polls).
5.3.2007 5:58pm
Mac (mail):
I think the article linked to above re ACORN has it's own share of bias, to say the least. This is an excerpt from The Wall Street Journal. Please note not just the indictments, but the convictions.

The Acorn Indictments
A union-backed outfit faces charges of election fraud.

Friday, November 3, 2006 12:01 a.m. EST

So, less than a week before the midterm elections, four workers from Acorn, the liberal activist group that has registered millions of voters, have been indicted by a federal grand jury for submitting false voter registration forms to the Kansas City, Missouri, election board. But hey, who needs voter ID laws?

We wish this were an aberration, but allegations of fraud have tainted Acorn voter drives across the country. Acorn workers have been convicted in Wisconsin and Colorado, and investigations are still under way in Ohio, Tennessee and Pennsylvania.

The good news for anyone who cares about voter integrity is that the Justice Department finally seems poised to connect these dots instead of dismissing such revelations as the work of a few yahoos. After the federal indictments were handed up in Kansas City this week, the U.S. Attorney's office said in a statement that "This national investigation is very much ongoing.

There is a lot more re ACORN and it is not pleasant reading for anyone who cares about fair elections among many other things.
5.3.2007 6:13pm
James Blakey (mail):
Likewise, the 93 United States attorneys should not be political apparatchiks, but talented lawyers selected half from Republican ranks and half from Democratic.

Yeah, we wouldn't want any Libertarian US Attorneys.
5.3.2007 6:17pm
Brian K (mail):
PDXLawyer,

Your right...I did use sloppy notation. However the links I gave do not and my notation did not prevent you from understanding my post.


On factual assertions which cut against AG they are content to rely on allegations or suspicions as if they were proven truths, while on factual assertions in his favor there is a demand for ironclad proof.


Which factual assertions would those be? That political appointees are basically employed at will? I and most other democrats I know have conceded that point long ago. (in fact we never disputed it). That doesn't mean there wasn't wrongdoing though.


only that the proof presented to the judge wasn't sufficient to justify overturning the decision


If the proof is so weak, then how can charges of fraud be brought? What proof would the prosecuting attorney have relied on? In what way would demanding that a US Attorney charge someone on weak/no proof and then retaliating against that person for not bringing up charges not be an use of undue political influence and excessive partisanship?
5.3.2007 6:20pm
Brian K (mail):
Mac,

You have ironically cited an OP-ED piece from the Wall Street Journal OPINION pages...this hardly a section that is free from bias.

link
5.3.2007 6:24pm
John Fee (mail):
I will go further than Orin and say that to limit the President's removal authority over the Attorney General would be unconstitutional, and I believe that the Supreme Court would so hold. The independent counsel statute upheld in Morrison v. Olson was far narrower, both in scope and duration. The narrowness of the independent counsel's responsibilities, and the exceptional nature of the i.c. situation, were important factors in the Supreme Court's opinion upholding the restriction on prosecutor removal in that case, and even that decision has been highly criticized.

The Attorney General, by contrast, wields many of the most important purely executive powers (even if the AG also has some quasi-legislative powers) on an extremely broad range of matters. The AG is far more important to the constitutional functioning of the executive branch than the postmaster in Myers v. U.S. whom the Supreme Court held the President had a constitutional right to terminate without cause.

Congress could specify a term for the office of Attorney General, as it does for some other executive offices, but it could not take away the President's constitutional power to terminate key officers of the executive branch before their terms have expired.
5.3.2007 6:27pm
PatHMV (mail) (www):
There's a difference between proof that fraud occurred and proof that fraud changed the outcome of the election.

Having investigated a disputed election myself, as an assistant D.A., I know a bit about what happens in these cases.

Usually, it's easy to prove that the poll commissioner or some other official did not follow the rules. The rules are usually very specific, and precisely define the processes to be followed on election day. If those processes are followed, then committing election fraud is next to impossible (in most places). However, if those rules are not followed, then it's almost impossible to determine whether actual fraud occurred, much less prove it.

For example, in my state, there should be at least 3 poll commissioners at each voting station. One person verifies the name of the individual and marks them off of the computerized print-out of registered voters (the voter must sign this sheet). Then the other 2, each acting separately, are to write down, in separate notebooks, the name of the voter, which is called out by the first commissioner. Usually, there's a 4th commissioner specifically making sure that only people who have been thusly identified can enter the machine to vote.

Now suppose you're investigating some suspicious numbers in a particular precinct. You find that, toward the end of the day (the bottom of the lists), each of the 2 separate notebooks were filled out in the same handwriting. That's an irregularity, an irregularity that you can prove. But can you prove that the people after that point on the list (where the identical handwriting starts) didn't show up and vote? That's a lot harder. If the process were properly followed, you'd have 2 independent witnesses, each vouching for the other's faithful performance of their duties. But now you've only got 1 witness, certifying his or her own actions.

Technically, that irregularity is prosecutable. But few prosecutors have the stones to prosecute the little old lady (or the African-American woman related to the local powerful pastor) for not following what will be portrayed as "bureaucratic rules." And knowing that real prosecution is unlikely, the poll commissioner has little incentive to confess that they looked the other way while the local ward boss (or his modern equivalent) came in just before the polls closed and voted for 30 or 40 people who hadn't showed up that day.
5.3.2007 6:35pm
John Fee (mail):
Sorry, in my comment above I misidentified the blogger as Orin, while I should have noticed that this is a post by Dale Carpenter.
5.3.2007 6:36pm
Mac (mail):
You have ironically cited an OP-ED piece from the Wall Street Journal OPINION pages...this hardly a section that is free from bias.

Brian K
Well, all journalism has some bias. I think the Muckracker is very short on facts to back up their bias. Are you saying that ACORN workers were not convicted or indicted? Are you saying that the Wall Street Journal is lying? What is your point? Muckraker leaves out some very important details about ACORN, such as convictions. I notice you only argued about bias not the facts presented by the WSJ. Is that because the facts don't fit your bias?
5.3.2007 6:40pm
M. Gross (mail):
You have ironically cited an OP-ED piece from the Wall Street Journal OPINION pages...this hardly a section that is free from bias.

So you believe the excerpted statement, which mentions the convictions, is a statement of opinion rather than fact?

If not, what precisely is your point?
5.3.2007 6:47pm
Brian K (mail):
PatHMV,

I'm not sure of the point of your description. (I'll note that in Illinois, where I've served as an election judge, as a very different procedure...but there is no point to this note)

The judge overseeing the WA election case did not say "well there was some fraud but not enough to overturn the election". Instead he dismissed all claims which in essence said "there was no fraud". (assuming my understanding of the ruling is correct...if it is not then please provide citations showing so). Just because irregularities were present does not necessarily mean there was fraud.

If anything, your post is further proof that the USA made a good decision not to prosecute anyone for voter fraud. It is hard to prosecute someone when you have little or no proof.
5.3.2007 6:57pm
Brian K (mail):
RE: Acorn and WSJ

I made no claims about ACORN or its actions. Where did you guys see me do so?

I was merely pointing the irony in Mac's post.


I think the article linked to above re ACORN has it's own share of bias, to say the least. This is an excerpt from The Wall Street Journal.


He dismisses the previous article because it is biased then as a substitute he offers up another article that is at least equally biased in the other favor of the other political side. Do you guys not see the irony in that? He also claimed it was from the WSJ which is highly misleading. Saying something is from the WSJ (or LA Times or whatever) implies that it is a factual, news piece. An article from the OPINION section is just that, an opinion...no facts need be present (which is oftentimes true). If the sole goal was to point out the convictions then he could have easily pointed to a factual piece in the NEWS section that said so. Even the excerpted portion is heavy on partisan opinion and doesn't provide any proof of the convictions beyond saying that they exist.
5.3.2007 7:07pm
Al Maviva (mail) (www):
what in the world are you talking about? I'm a staunch Republican. . . . But I'm telling you that, based on my own personal conversations with people who know what's going on on the ground within the Justice Department. . . [i]n the pre-Clinton years, Justice had (and deserved) a much better reputation for integrity than it has now. President Clinton began the process of politicalization, and President Bush has continued that process

That's funny, because I know a lot of people who would swear under oath that Reagan began politicizing the Department under Ed Meese, and I know a handful of Reagan-era Justice attorneys would would tell you it began under Jimmy Carter. Judge Bork might date the political firings to earlier days, as might Archibald Cox were he around. And for what little bit it's worth, I know a fair handful of line attorneys at Justice, for whom politics is *never* a concern... though they might just be left wing burrowers who are cleverly keeping their mouths shut for now.

Eh, what the heck. I'll concede your point and say it's all Bush's fault, with six assists and ten rebounds going to Janet Reno and Bill Clinton.
5.3.2007 7:08pm
Hans Bader (mail):
I agree with John Fee. The proposal in the second Op/Ed -- to limit removal of such a high-ranking law enforcement officer as the attorney general -- would probably violate constitutional separation of powers principles.
5.3.2007 7:40pm
PatHMV (mail) (www):
So, if I think that Gonzales and the Justice Department has unwisely over-politicized the DOJ, without believing that they've acted unconstitutionally, I'm lumped in with the rabid partisan sufferers of BDS?

Like most things in politics, there's a spectrum between wise and illegal or unconstitutional here. I don't argue that we're anywhere near the illegal end of the spectrum. But I think we've drifted farther away from the "wise" end than we should. That's hardly saying that everything is "all Bush's fault." Or do you think that we shouldn't question our politicians unless and until we hit the illegal end of the spectrum, Al?
5.3.2007 8:18pm
Eli Rabett (www):
Seems to me that those arguing that making the AG immune from being fired by the President would be unconstitutional (a position I agree with) have to agree that what we need now is to impeach Gonzales. Waiting for the next election is a joke. Zero consequences and a great encouragement to the next guy to behave as badly. Impeach the clown and you send a message.
5.3.2007 8:40pm
NickM (mail) (www):
BrianK - you could read the WA gubernatorial race opinion.

Here are some quotations from it:


Based on the findings, the Court concludes that 1,678 illegal votes were cast in the 2004 general election. This includes felons established by petitioners totaling 754, felons established by intervenors totaling 647, deceased voters totaling 19, double voters totaling 6, provisional ballots in King County totaling 96, provisional ballots in Pierce County totaling 79 and additional votes in Pierce County for which there could not be found a registered voter through crediting, at least, totaling 77. And, therefore, the total is 1,678.



This same requirement was recognized in Hill v. Howell in 1912 when that Court held that where there was no evidence to show for whom the elector voted and because both candidates were innocent of wrongdoing, the vote must be treated between the parties as a legitimate vote. There is no evidence before the Court that either Ms. Gregoire or Mr. Rossi directly or indirectly engaged in wrongdoing, and the Court so concludes.



The Court concludes further that no matter the number of illegal votes, whether they total 1,678, as determined by this Court, or 2,820, as argued by petitioners in their closing, this election may not be set aside merely because the number of illegal or invalid votes exceed the margin of victory, because the election contest statute requires the contestant to show that the illegal votes or misconduct changed the election's result. The Washington State legislature has, by enacting RCW 29A.68.110 and 29A.68.020, removed any other choice from this Court's discretion.


Illegal votes by felons are generally called election fraud. So is voting in the name of a dead person. [The provisional ballots issue mentioned by the court involves those ballots being improperly counted before the signature verification process - and that's the number of counted ballots that shouldn't have been counted from each of those counties. These may or may not be fraudulent - someone could be faking a registered voter's signature, or someone could simply have thought they were registered to vote when they were not.]

There was plenty of election fraud in that election, but WA law is unusual in that in that if you don't know who committed the fraud and how they voted, nothing can be done about it - and bizarrely, WA law allows a felon to testify as to how he illegally voted (despite the obvious motivation to lie there).

I'm not sure I find anything to complain about in McKay's decision - indicting felon voters (there was a federal election on the same ballot, so it's a federal crime to vote illegally) may not be a good use of resources when the state can do it just as easily, unless some of them are guys you really want to take off the street. The myriad of improprieties in the election recordkeeping and count don't necessarily amount to a federal crime, and when an investigation doesn't appear to be leading anywhere after some work, it's reasonable to give it up.

Had McKay, in response to complaining by GOP Congressmen, picked out a list of 20 or 30 complete dirtbags among the felon voters (e.g., child molesters and murderers) and prosecuted them for voting illegally, would he have done anything improper?

Nick
5.3.2007 8:53pm
Brian K (mail):
Nick


Had McKay, in response to complaining by GOP Congressmen, picked out a list of 20 or 30 complete dirtbags among the felon voters (e.g., child molesters and murderers) and prosecuted them for voting illegally, would he have done anything improper?


Yes (in my opinion) and No (in a legal sense). It's improper in my opinion for 2 reasons: 1) I am generally against prosecuting someone to "set an example". Choosing 1 person out of a 100 or 1000 people who committed identical crimes to prosecute is not my idea of justice. It smacks of arbitrariness. If that one person say stole a million dollars while everyone else stole 1 dollar then I think you can only prosecute that one person. 2) It is akin to double jeopardy. You are taking someone who has already served their time and charging them and saying "I'm only charging you for this crime because you committed this other one." To me it is not an ethically valid reason to charge someone while ignoring the identical crime committed by someone else. That said, I also say no because I don't think acting in the above ways are illegal and I believe it falls under "prosecutorial discretion".

However I think it is wrong to retroactively punish someone for exercising their discretion in the above manner.

I apologize, I did not properly judge my time and must leave for a meeting. I will respond to the rest of the post later.
5.3.2007 9:22pm
R. Richard Schweitzer (mail):
Fascinating how much talk there is about "credibility" and "confidence" in public offices, and what should be done about "erosion."

Yet, in survey after survey what do we learn about the "credibility" of Congress and the public's confidence in it as an institution.

Perhaps we need an amendment to provide for Recall - or general election of all members from any state which decides to provide its citizens with that right to recall any rep or Senator.

Sure would burn up a lot of excess campaign funds, and wear out a lot of Guccis!
5.3.2007 11:07pm
Eli Rabett (www):
ooo great, Joe Lieberman the first to face recall.....
5.4.2007 1:16am
Mac (mail):
Brian,

Maybe you would be happier in Venezuela? It seems their voting laws are more in line with your ideas of fairness and legality.
5.4.2007 4:25pm
PDXLawyer (mail):
Nick:

I agree that indicting low-level criminals (like felon voters) is ordinarily a poor use of federal resources, when there is an analogous state crime. Problem is, as far as I can tell, the local prosecutors in these cases also failed to prosecute. I did a lot of googling and could find nothing on this, other than expressions of frustration at federal and state non-prosecution.

So: (1) Repubs prove to a state court that there are enough invalid felon votes out there to swing the election; (2) Dems bring to the state court some of those felons, who all testify they voted Republican or Libertarian; (3) nobody, federal or state even tries to punish crimes which were admitted on the record; and (4) the fired US Attorney whose office was one of those that failed to prosecute is therefore a martyr to the "Rule of Law."

I know there is some thought in the Dem party that felon disenfranchisement is a bad thing. The Washington Constitution, however, expressly calls for it. I really can't see how firing a US Attorney for failure to prosecute admitted violations of Washington electoral law counts as undermining the Rule of Law.

By the way, I *do* see a real obstacle to prosecuting those felons listed as voting who did not testify in the election lawsuit. All the defendant would have to do is deny voting, and suggest that another person voted improperly using his name. This must not be too hard, since a number of dead people are listed as having cast ballots, so unless there is eyewitness identification beyond ordinary electoral procedures, conviction would be impossible. Of course the four felons who testified in support of the Democratic case, assuring us they were *really* Republicans, would have no such defense available.

I can also see why a Republican USA with political ambitions would want to avoid the enmity of Democratic activists by punishing felon voters. Those activists (who think that prohibiting felons from voting is bad in itself) would see such a prosecution as "political," and most people, relying on fourth hand accounts, have picked up this misdescription. In my view, though, this makes the fired USA more a coward or careerist than a martyr.
5.4.2007 4:51pm
James Butts (mail):
Instead of impeaching Gonzales, would it not be easier for Congress to just stop paying for his official travel, all but the most basic office supplies (typewriter ribbons but no printer cartridges), and the other perks of his office until he resigns? Such an action would be easier to undertake, would be less explosive, and their are precedents forn such actions going back before the English civil War.
5.6.2007 9:36pm