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That's where they sent him, all right.
*Meaner* ranch, Oren.
Wouldn't rule that out. The tenor of questioning in December will be the first time we really get some clue, alas.
Cboldt, you are much more optimistic about the next administration than I am.
Regardless, I find it ... unlikely that a majority of sitting circuit-court judges would really give much of a flip *what* the feds requested "back door."
The notion that not every violation of law is a crime is astonishingly noncontroversial and should not come as a surprise to anyone, least of all anyone who has the teeniest bit of experience with the practice of American law. I am genuinely shocked that anyone views the AG's comment to that effect as even noteworthy, let alone grounds for extended mouth-frothing.
(Emphasis in original). Further, as the Post points out, far from taking a do-nothing approach or suggesting that "some violations of the law have no legal remedy," Mukasey denounced Goodling's and Sampson's actions, and is reaching out to alert rejected DoJ job-seekers that they may have been wrongfully discriminated against, so they can pursue possible civil claims.
So you're suggesting that somehow the government filed a secret ex-parte motion to rehear a case that they won, and not only did the judges who received the unethical motion that violates the rules not disregard it and report the government attorneys to the bar, they went ahead and decided to rehear the case (which they rarely do even when the petition doesn't violate the rules).
I can recommend a good tinfoil if you need a new hat.
1. A decision to rehear the case based on an ex parte communication from the government would be an ethical violation on the judges' part; and
2. A majority of the court needs to vote to rehear the case en banc.
So in order to arrange a "back door" sua sponte en banc ruling, the government would either have to get to one judge to call a poll and expect the others would just agree, or it would have to have ex parte contact with a majority of the court, and all of the judges they contact would have to be willing to risk humiliation and censure if they were discovered.
This is really a very likely scenario you've come up with.
It would also help if the OSC were a functioning entity right now, but that is not Mukasey's fault.
And who will pay off those claims? Do Goodling and Sampson have any personal liability at all?
Would their acts be grounds for disciplinary action by bar associations?
Or are they free and clear, with only a stern lecture from Mukasey?
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Not at all. My tinfoil is along the lines of something entirely informal. Chitchat, if you will.
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Nothing happens out of the clear blue. There is SOME reason the Circuit either maintained interest, or obtained renewed interest.
.
Maybe it's as simple as they feel they've lost face, compared with the actions of the Canadians in the same matter.
"Perhaps the Court is reacting to AG Mukasey's new "it's not a crime if you're a Republican" theory."
It's not the nature of the offense that is relevant for AGMM, it is the identity of the offender. This is the reality of his administration. Since all of the acknowledged offenders save Goodling are partners in Washington law firms, they have prevailed in two ways: the unqualified hirees retain their positions in their various positions, and the perpetrators are unpunished and well rewarded. That's a good result any day.
Sorry, I'm not an expert on qualified immunity, so I just don't know. I was responding to the claim that Mukasey declared that there could be no legal remedy, which is manifestly untrue.
Would their acts be grounds for disciplinary action by bar associations?
The WaPo editorial suggests that's the case, and I see no reason why it would be wrong. If Goodling and Sampson really violated civil or administrative law, one would think that the relevant bar associations would be interested in investigating-- of course, that's up to the bar associations, not Mukasey.
I wish I had a nickel for every time I've seen someone make a statement like that ('Washington Post editorial page is not a bastion of the right') while simultaneously quoting an editorial which adds to the considerable evidence that the statement is false.
The Office of Special Counsel page on Prohibited Personnel Practices notes that rather expensive civil penalties ($1,000 per event) can be imposed for the actions Goodling has admitted to and Sampson stands credibly accused of. Goodling's immunity deal may or may not protect her from civil penalties.
The Hatch Act Page notes that the following criminal code sections may apply to Hatch Act cases, which I assume is a matter of a referral back to DOJ once evidence is collected:
Finally, I would note that the DOJ Internal report states on page 121 that Goodling repeatedly lied to DOJ investigators. There seems to be some prosecutorial discretion here if Mukasey is declaring that those lies can't/won't be prosecuted.
A few other terms for that kind of chitchat are "judicial misconduct" and "improper ex parte contact."
As far as the mechanics, I imagine the Second Circuit is like others, where any judge can hold the mandate, write a memo as to why he or she thinks the case should be heard en banc, and then call for a vote. So all that had to happen was that one judge pesuaded the others that there was a good reason to hear this en banc.
Indeed, the Court once accepted a case sua sponte en banc after the Supreme Court denied cert. but before the mandate issued. Now that's unusual.