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An Extra Perspective on the Possible First Amendment Problems Posed by Hate Crimes Laws:

I don't think that laws that punish hate crimes — i.e., criminal acts motivated by the victim's race, religion, sexual orientation, and the like — are unconstitutional. I think the U.S. Supreme Court's unanimous decision in Wisconsin v. Mitchell gets this right, for the right reasons.

Nonetheless, the decision discussed below, in which a person pled guilty for sending racist messages to a city councilman and to the mayor about the city councilman, helps show a problem with such statutes, especially when they cover speech — even assertedly constitutionally unprotected speech (such as threats, fighting words, telephone harassment, and the like) — rather than violent conduct. Based on the quoted material, I'm pretty sure the messages should be constitutionally protected, and a thoughtful and well-reasoned decision by the U.S. Court of Appeals for the D.C. Circuit (U.S. v. Popa) supports that view. But according to the defense lawyer, the defendant pled guilty to a misdemeanor, and went to jail because of it, because raising the First Amendment challenge exposed him to a risk of felony hate crime prosecution, which could have led to a much higher penalty.

The Columbian (Vancouver, Wash.), reports in its May 20 issue, that "Defense attorney Jon McMullen had considered arguing that the comments were protected as free speech, but facing the possibility of federal charges — which could have netted Reinhold more than a year in prison — his client decided to plead guilty." And an earlier article reported that, "Lawyers at the U.S. Attorney's Office became interested in the case and on Friday wrote to Reinhold's defense attorney, Jon McMullen, that they would let the case rest if Reinhold changed his plea.... 'Basically, they said, 'If you fight it down here, win lose or draw, we'll charge in federal court,'' McMullen said." Here, the threat of felony prosecution came from federal prosecutors, but it could equally well have come from state prosecutors under a felony hate crime statute.

Now I don't think this makes hate crime statutes unconstitutional, and this sort of pressure to plead guilty to a lesser charge and waive the right to appeal arises in all sorts of cases, not just cases such as this one. Nonetheless, this does highlight one way in which hate crimes laws can endanger free speech, even if this danger doesn't rise to the level of cause the laws to be unconstitutional. And it is one reason that (for instance) people who worry about suppression of constitutionally protected anti-homosexuality speech might be concerned about federal laws imposing harsher penalties for "hate crimes" based on sexual orientation, if those laws are broad enough to cover not just violence but also supposedly unprotected speech.

UPDATE ABOUT THE ORIGINAL POST IN THIS CHAIN (for those who are reading this one but continue to be interested in the original one): I should note that I assume the premise of the prosecution is that the black councilman was one of the recipients, which is what would make the e-mail even theoretically actionable as "cyberstalking." If the premise was that the defendant was sending offensive messages about a city councilman to other city councilmen, then the prosecution is even more outrageous. And I should acknowledge, on further thinking about this, that the state statute seems to allow such an unconstitutional result, because it provides (emphasis added),

(1) A person is guilty of cyberstalking if he or she, with intent to harass, intimidate, torment, or embarrass any other person, and under circumstances not constituting telephone harassment, makes an electronic communication [including e-mail] to such other person or a third party:

(a) Using any lewd, lascivious, indecent, or obscene words, images, or language, or suggesting the commission of any lewd or lascivious act;

(b) Anonymously or repeatedly whether or not conversation occurs; or

(c) Threatening to inflict injury on the person or property of the person called or any member of his or her family or household....

Again, if the prosecution is premised solely on the messages to third parties then this is a frightening result: It is completely unmoored from the premise of normal telephone harassment law (which is troublesome enough as to government officials, as Popa discusses), and it takes the view that it's a crime to send anonymous messages to government officials about other government officials "with intent to harass, intimidate, torment, or embarrass" the subject.

Related Posts (on one page):

  1. An Extra Perspective on the Possible First Amendment Problems Posed by Hate Crimes Laws:
  2. Jail Time for Sending Racist Message to a City Councilman:
J. Aldridge:
Does this mean you would also find constitional a pre fourteenth amendment hypothetical law that says excluding blacks from purchasing property is a hate crime because it impairs a Obligation of Contracts?

Both the impairing the Obligation of Contracts and Fourteenth Amendment are direct prohibitions on the power of the states and not a grant of legislative authority to make domestic laws.
5.26.2009 7:04pm
FredR (mail):
How long before criticism of the president becomes a federal hate crime?
5.26.2009 7:04pm
Oren:
Sounds like a problem with his counsel, not with the law.
5.26.2009 7:05pm
Eugene Volokh (www):
Oren: Why do you think so?
5.26.2009 7:23pm
martinned (mail) (www):
Sounds like a problem with the practice of plea bargaining, not with the law.
5.26.2009 7:28pm
David Schumacher:
Eugene,

I think I have to disagree, and say the teenager in this case is not covered by the U.S. v. Hopa case.

why?

Venue.

In Hopa, the defendant made telephone calls, which are mostly considered private. Still harassing and intimidating, but not public speech.

The kid in this case sent an e-mail to all or most of the city council. This, in my mind, is the same as standing up in a city council meeting, making the same stupid accusations. He would have been asked to not use that kind of language. Continuing to be abusive in this way, the city would have been with their right to have him removed from the podium, and possibly arrested for disturbing the peace if he persisted.

You are really grasping at straws by calling this kid's message a political one. They were fighting words, that would have properly got the kid beaten up in any bar in town.

That said, a good lawyer probably could have gotten this one thrown out. It really depends on how scared the city council members felt. I doubt the council members would even want to wast their time being called to the stand on this one.
5.26.2009 7:30pm
ShelbyC:

They were fighting words,


Doesn't the fighting words exception only cover face to face insults likely to incite and immeadiate breach of peace?
And sending emails doesn't interupt a city councit meeting.
5.26.2009 7:43pm
Ex-Fed (mail) (www):
From my perspective as a former AUSA and current federal criminal defense attorney, I am extremely skeptical of the description of the U.S. Attorney's Office's involvement. Unless the articles are omitting crucial facts about the defendant's conduct, I don't see what the credible federal criminal hook is. As Orin Kerr will tell us, sometimes an USAO goes after someone based on a bogus theory, but here I don't even see the colorable hook.

Also, note that in the articles, what we know about the USAO's involvement comes from the defense attorney. Speaking as one, that's not the most reliable source for unbiased information.

A perfectly plausible scenario -- the defense lawyer was unreasonably worried that the feds would charge his guy, since the story had gotten publicity, and went to the feds himself to get some sort of written guarantee that if his guy pled the feds wouldn't take it. Through inexperience or wanted to get rid of the guy, some AUSA actually gave the guarantee in writing.
5.26.2009 8:02pm
martinned (mail) (www):
This reminds me of a fascinating problem in the context of extradition. Generally, foreign courts do not refuse extradition in these kinds of cases, even though the behaviour described here would almost certainly amount to prosecutorial misconduct in any other civilised jurisdiction. The House of Lords case of McKinnon v USA, last year, discussed the way to analyse such cases. Those who are interested in the practice of citing foreign case law will be interested to know that the House largely based its approach on the Canadian Supreme Court's ruling in United States v Cobb, a case where the Canadian court did refuse extradition on the grounds that the threats made by US prosecutors and - essentially - by the American judge, had the effect of undermining the extradition proceedings to such an extent that due process required that the request for extradition be denied.

In other words, plea bargaining as it exists in the US is so extreme that one might feel that the practice ought to be reconsidered. In this case, the defendant plead guilty to something that may very well have been constitutionally protected. In such a case, simply saying that "no one made him do it" doesn't really cut it.
5.26.2009 8:03pm
David Schumacher:
Shelby,


Doesn't the fighting words exception only cover face to face insults likely to incite and immeadiate breach of peace?
And sending emails doesn't interupt a city councit meeting.


I think what I am saying is that sending an e-mail can be considered the same as a face-to-face threat. We don't know many details in this case, but I am guessing that the kid was a local, and possibly known to the city council members. That makes the threat a little more credible.

If the kid was just suffering from "internet tough guy syndrome", then none of this would be an issue :)
5.26.2009 8:32pm
Irrelevant:
... I am guessing that the kid was a local, and possibly known to the city council members.


The kid who sent the email was the son of the deputy mayor.
5.26.2009 8:45pm
Danny (mail):
My understanding of hate crime laws is that they concern violent assaults which are done for purposes of low-level terrorism. If you are talking about "hate crimes" you are by definition referring to assault or murder.

In what jurisdiction do "hate crimes" have anything to do with speech? Please provide examples
5.26.2009 8:59pm
Splunge:
I think what I am saying is that sending an e-mail can be considered the same as a face-to-face threat.

On which planet? Does your logic work for non-verbal threats, too? If I draw a picture of a fist and mail it to you, is that to be considered just the same as my waving a fist in front of your face?

And what if my artistic skills aren't so hot? Is it still the same as a face-to-face threat if my sketch is so crude that you don't recognize it as a fist until a colleague reading over your shoulder points it out?

If your logic doesn't work for nonverbal threats, what about written threats that are mispelled? If I write U r a disgrase u aught 2 be kilt nekst meeting to Councilperson MacTavish does the AUSA need to check into my knowledge of Scots tradition to be sure I'm issuing "fighting words" instead of suggesting MacTavish wear more formal attire at the next council meeting?

What if I put :) or j/k after my "fighting words"? Will that get me leniency at sentencing? Only if Councilmember McPoot is l33t and could be expected to understand AIMspeak modifiers?

Gosh, what a fascinating playground the law is, when we unmoor it from common sense.
5.26.2009 9:18pm
Fub:
I've heard it said many times by seasoned criminal defense attorneys that the worst possible scenario is to have an actually innocent defendant. That's what appears to be the case here, for constitutional reaons.

If a criminal defendant is actually innocent of the crimes as charged, the prosecutor, the judge, and every cop involved will make a full court press to convict him of something, of anything. They've already decided "he must have been doing something illegal or we wouldn't have charged him."

Being actually innocent means the defendant has no real bargaining position. He's up against people who make careers of never being "wrong". They can't stand to lose face by admitting they were wrong.

Many actually innocent defendants plead to nuisance charges just to make the nightmare end.
5.26.2009 9:20pm
David Schumacher:
Splunge,

what you talking about is dabbling in "internet tough guy" area. It's not taken seriously, so it's not really a threat.

What you are doing is being dismissive, snide, and ignoring the facts of the situation. Maybe we are from different universes, but e-mail is how people communicate today. When the email comes from a known person, that makes it a credible threat.

Your imaginary threats are straw man arguments, and have nothing to do with the real world. Or, as they say on other parts of the internet, "obvious troll is being obvious".
5.26.2009 9:53pm
Michelle Dulak Thomson (mail):
Can someone clarify a point for me? Much of the discussion here seems to assume that the defendant sent e-mails to his target, but none of the quoted text about the case actually says so. The defendant used a racial epithet in writing about his target in e-mails to other councilmembers, but I don't see anything in the quoted material in this post or its predecessor indicating that the defendant used the racial epithet in an e-mail addressed to the target himself.

I mean, maybe he did; I haven't followed this up at all, just skimming here. But does a nasty e-mail from a "known person" about A, but sent to B [to use David Schumacher's language, because it's conveniently above this box as I type — many above have argued substantially the same] constitute a "credible threat" to A? I would think it mattered whether A himself was sent the communication directly or not.
5.26.2009 10:40pm
educated speculation:
I am extremely skeptical of the description of the U.S. Attorney's Office's involvement. Unless the articles are omitting crucial facts about the defendant's conduct, I don't see what the credible federal criminal hook is.


I agree that the facts we've been so carefully shown are woefully deficient. However, at a long guess, the federal jurisdiction would have been under 18 U.S.C. § 1030.

The email was reportedly anonymous, right? If they just tracked the Received: headers —no spoofing— that would have given them an originating EHELO/HELO, an IP address (possibly rDNS), and a timestamp. The IP is what you look at. How do you go from there to a person? Even if you're pretty confident in the IP for the injecting host, the address may be assigned dynamically by DHCP... Well, sometimes a subpoena is enough.

OTOH, it doesn't necessarily take   l33t   ¦-¦4><0r   5ki1z   to make a really stupid attempt to cover your tracks a little better. And, I'd speculate that there's your federal hook.
5.26.2009 10:41pm
Oren:
Eugene, is pleading your defendant out instead of arguing a slam-dunk case not generally the fault of counsel.

I suppose we don't know the specific facts of how the defendant came to the decision that he did -- perhaps counsel wanted to try the 1A case and he adamantly refuse. If that's the case, I'm totally wrong, but I think it's unlikely.
5.26.2009 11:07pm
whit:

If a criminal defendant is actually innocent of the crimes as charged, the prosecutor, the judge, and every cop involved will make a full court press to convict him of something, of anything. They've already decided "he must have been doing something illegal or we wouldn't have charged him."

Being actually innocent means the defendant has no real bargaining position. He's up against people who make careers of never being "wrong". They can't stand to lose face by admitting they were wrong.



utter rubbish.

your mind reading abilities don't impress me.
5.26.2009 11:09pm
autolykos:

What you are doing is being dismissive, snide, and ignoring the facts of the situation. Maybe we are from different universes, but e-mail is how people communicate today. When the email comes from a known person, that makes it a credible threat.


He's being dismissive, snide and ignoring the facts of the situation because you're ignoring his point. Words have meaning. Face-to-face means face-to-face, not that the person wrote something and maybe someone in the town knew him, so, hey, it's functionally the same, right?

I didn't pay nearly enough attention in con law to tell you whether fighting words must be face-to-face, but to the extent that's the law (and I don't recall otherwise), you can't just cast that requirement aside by stretching the words way beyond any reasonable meaning to reach the conclusion you want to reach.
5.26.2009 11:12pm
whit:

y understanding of hate crime laws is that they concern violent assaults which are done for purposes of low-level terrorism. If you are talking about "hate crimes" you are by definition referring to assault or murder.

In what jurisdiction do "hate crimes" have anything to do with speech? Please provide examples



your understanding is wrong. hate crime enhancements are often used in jurisdictions (such as WA) even in crimes that are nothing like assault or murder, but in cases involving (for instance) threats.

now, i realize that in some respects , people say threats aren't "speech", but the point is still clear. there are hate crime laws that enhance penalties for making threats, not just "violent assaults which are done for the purposes of low-level terrorism"

feel free to google, "malicious harassment" and "RCW" for an example of such law.
5.26.2009 11:13pm
whit:

I didn't pay nearly enough attention in con law to tell you whether fighting words must be face-to-face


i have no cites for this, but that is what i was taught also.

non face-to-face words may constitute criminal threats and/or harassment, but they are not fighting words if done long distance.
5.26.2009 11:15pm
autolykos:

But does a nasty e-mail from a "known person" about A, but sent to B [to use David Schumacher's language, because it's conveniently above this box as I type — many above have argued substantially the same] constitute a "credible threat" to A?


No. An insult =/= a threat.

That was easy.
5.26.2009 11:15pm
whit:

No. An insult =/= a threat.

That was easy.


i agree. this is another (unfortunate) corollary of the war on domestic violence, where it is frequently theorized that insults can be threats merely because they are like really really mean.

seriously.
5.26.2009 11:18pm
David Schumacher:
Autolykos,


No. An insult =/= a threat.


Let's just say you and I disagree

You must have grown up in a magical world .... The e-mail went to the white council members. It was a threat against them, not the newly elected meember. Calling someone a "n****r lover" is not an insult, it's a direct threat of imminent violence. If you have ever spent time in Battleground or brush Prairie WA, and I have, you would know that it is a threat.

I have not been in that area of Washington in 12 years, so maybe it has changed. I'm genuinely pleased and surprised they elected any non-whites
5.26.2009 11:52pm
Splunge:
What you are doing is being dismissive, snide, ...[further ad hominem nonsense]

Or maybe your thinking on this subject is just intellectually bankrupt, so you are reduced to attacking the messenger. (You'll perhaps also notice that unlike you I expressed contempt for your ideas but not your character. To reasonable men, this is a very important distinction, one of the ways folks of different ideas can live together. You might consider studying it.)

but e-mail is how people communicate today.

A correct statement would be that e-mail is one of the ways people communicate today. Suggesting e-mail has replaced -- or indeed even can ever replace -- face to face communication is a priori ludicrous and, as they say, extraordinary claims require extraordinary proof. Have any?

When the email comes from a known person, that makes it a credible threat.

Nope, wrong. When the e-mail contains a credible threat, it's a credible threat. It's what's in the e-mail, not who sends it, that makes the difference. Otherwise, you're essentially judging by character, not (ironically given your opening sentence) by the facts of the case, which I realize is a favorite short-cut for many people, but the perniciousness of which you may recognize if I replace "a known person" in your sentence with "a black person" or "a felon."

Your imaginary threats are straw man arguments, and have nothing to do with the real world.

So you say. Thanks for the opinion. Had you made an actual argument, I suppose I'd have something else to say.

Or, as they say on other parts of the internet, "obvious troll is being obvious".

Name-calling again. Tsk.
5.27.2009 12:13am
whit:

Calling someone a "n****r lover" is not an insult, it's a direct threat of imminent violence.


absurd. and fwiw, *if* it was such a threat, it would be chargeable in WA state as "harassment" which is our criminal threats penal code.

since it isn't a threat in the first place, it most definitely is not a threat of "imminent violence". the very idea is absurd.

the 1st amendment was designed to protect offensive speech. this is EXACTLY the kind of speech it was designed to protect. especially when directed at a politician.

fwiw, i have had several long involved trials in WA states involving threats of various sorts (witness intimidation, malicious harassment, etc.).

what you say is simply not true.
5.27.2009 12:43am
Ricardo (mail):
You must have grown up in a magical world .... The e-mail went to the white council members. It was a threat against them, not the newly elected meember. Calling someone a "n****r lover" is not an insult, it's a direct threat of imminent violence. If you have ever spent time in Battleground or brush Prairie WA, and I have, you would know that it is a threat.

I, and I think many others, read the emails as a semi-literate, impotent venting of rage. You read it as a more specific threat -- as in "boot this guy from the city council or else." But a threat of what exactly? Is there a recent history in this part of Washington of "n****r lover" being a threat that is a prelude to racial violence? Since you admit you haven't been there in 12 years, I'm skeptical you have evidence that racial tensions are so high in this area that insults like these are really coded threats of violence.

In any case, email is probably the least effective way of delivering threats considering how impersonal it is as well as the notorious "internet tough guy syndrome" mentioned above. Delivering coded threats in person, through the mail, through vandalism of property, or over the phone carry a bit more weight in my view since they are rarer and require someone who is serious enough to screw up the courage or expend more effort to deliver the threat. If I received an email like the one at issue, I would be inclined to dismiss it as the impotent ravings of some irrelevant loser.
5.27.2009 12:55am
whit:
the decision matrix i have been taught (by prosecutors etc.) in deciding whether threats are in fact criminal threats are

1) the threat was communicated (3rd or 4th party etc. is fine)
2) the recipient was in fear
3) the fear is one that a reasonable person, with the same basis of knowledge that the recipient had, would have. iow, a threat is more likely to be deemed a true threat if a recipient knew that the communicator had been arrested before for assaulting people, etc. and stuff like that.

so, for example, if a person is not in fear, it is NOT a criminal threat, no matter what was said. you gotta have all 3 for harassment (which is our criminal threats charge) to stick.
5.27.2009 12:59am
autolykos:

Calling someone a "n****r lover" is not an insult, it's a direct threat of imminent violence.


Can you send me the secret handbook of insults that are actually "direct threats of imminent violence" (in whatever secret code you happen to be using)? I seem to have misplaced mine.

In the meantime, I'll continue to live in the real world, where, just because a person doesn't like a word, or think it's use is particularly offensive, doesn't mean it's a threat of imminent violence.
5.27.2009 1:45am
Fub:
whit wrote at 5.26.2009 11:09pm:
utter rubbish.

your mind reading abilities don't impress me.
Maybe not in your jurisdiction, but I'm not mind reading. I saw the attitude, up close and personal, in cops, DAs and judges. The attorneys I discussed it with saw a lot more than I did, because I was just starting practice, and practiced only a few years before retiring.

Maybe in your neck of the woods things are different. But not in the CA counties where I've practiced.
5.27.2009 2:01am
whit:
if you are a hammer, everything looks like a nail.

if you are a defense attorney, maybe it seems like everybody is out to get your client even if he's obviously innocent.

not what i've seen in any of the 3 jurisdictions i've worked, none of which were admittedly california.
5.27.2009 3:04am
Lurker:
The obvious problem here is the plea bargaining system. The defendant may, of course confess in an open court, but "pleading guilty" should not be a deciding factor at all. In my country, we have an adversarial criminal justice system, but the prosecution is not allowed to make plea bargains. Instead, the prosecution must prove the guilt beoynd reasonable doubt, even if the defendant does not contest the charge. A confession by the defendant is simply a piece of evidence to be considered by the court.

The court is bound to consider only those actions of the defendant which the prosecution is prosecuting. However, the court is not bound to the actual charge: it may, at will, convict the defendant on more serious charges or to a heavier punishment than the prosecution asks for. In addition, the victims may press heavier (or lesser) charges in the same criminal trial, independently from the public prosecutor.

As you see, this system is better for the defendant: if they confess, that is likely to be taken into account in sentencing. However, they still retain the right to appeal to a higher court. If the defendant confesses and the confession is not believable, the court may still decide not to convict. For the prosecution, the system gives an incentive to prosecute fairly: the court will override any undue leniency, but pressing the defendant to confess will not carry any significant benefit.
5.27.2009 4:08am
martinned (mail) (www):

I've heard it said many times by seasoned criminal defense attorneys that the worst possible scenario is to have an actually innocent defendant.

In the absolutely glorious Uncommon Law by A.P. Herbert there is a case about a man who got arrested for jumping off the Hammersmith bridge into the Thames. Charged with six crimes, none of them were found to apply, so the judge decided that "it is not for me to say what offence the appellant has committed, but I am satisfied that he has committed some offence, for which he has been most properly punished."

For the record, this book collects cases that are entirely fictitious, but it is a nice example of how inconvenient it can be if someone who clearly has done something wrong has been inconsiderate enough to not actually break any laws.
5.27.2009 9:24am
FWB (mail):
At the state level, hate crimes laws make groupings of specific persons. This simply and directly violates the equal protection clause of the 14th. States may not make ANY grouping for any reason. States may pass laws protecting citizens from one another but no person or group may be singled out for specific protection since this would directly violate the 14th amendment.

Tiochfaidh ar la!
5.27.2009 12:27pm
FWB (mail):
Where in the First amendment are "fighting words" excepted?

I suspect the Framers used "fighting words" and "threats" against the King.

Interesting that the exact type of speech that should be protected has been determined by a bunch of folks with crystal balls to not be protected.

Only weak people let the words of others affect them.

Tiochfaidh ar la!
5.27.2009 12:39pm
Eric Rasmusen (mail) (www):
I posted the following comment on the other VC post on this topic. Since this thread has more comments, I'm reposting it, in the hopes someone might know about Washington local politics, which is important to understanding this. THe links missing below can be found at the Other COmment.


That federal court district is one that's been in the news. It's where John McKay was US DA, fired by Pres. Bush after charges that he wasn't interested in vote fraud by Democrats. The current prosecutor is his successor, who seems to also be a liberal Republican, and only sort-of picked by Bush. He was in McKay's office and a natural interim DA, and was made permanent by the judges by a strange law that gives them that right if the President doesn't get someone confirmed in time. (Isn't a law like that blatantly unconstitutional?)

Here are details:



U.S. Attorney Jeffrey C. Sullivan, who has been serving in an interim status, was appointed today to serve as U.S. Attorney effective October 12, 2007, by order of Chief U.S. District Judge Robert S. Lasnik. Sullivan was originally selected by the U.S. Department of Justice to serve as the interim U.S. Attorney on January 26, 2007, following the resignation of U.S. Attorney John McKay. The interim appointment was set to expire on October 12, 2007. Today's order by Chief Judge Lasnik, on behalf of the U.S. District Court judges, means the U.S. Attorney's Office will continue to have leadership from a veteran prosecutor.

"I am gratified by the confidence the U.S. District Court judges have in my leadership," Sullivan said. "I am honored to lead what is recognized as one of the finest U.S. Attorney's Offices in the country."

Prior to his appointment as interim U.S. Attorney, Mr. Sullivan served as Chief of the Criminal Division within the United States Attorney's Office. Mr. Sullivan joined the office in 2002...




JEFFREY C. SULLIVAN APPOINTED U.S. ATTORNEY FOR WESTERN DISTRICT OF WASHINGTON
Judges Vote Unanimously to Appoint Sullivan Effective October 12, 2007



Also:

Sullivan was our (Yakima, the Other Washington) chief prosecuting attorney for 27 years. He tried to be a centrist politically, and I agree he's a careerist type. But he did leave with that missing evidence charge as a blot on his escutcheon.





And this:



Though his appointment was set to end Oct. 12, along with those of 11 other interim U.S. attorneys across the country, Chief U.S. District Court Judge Robert Lasnik said Sullivan was selected unanimously to stay on the job by the local federal judiciary.

A controversial provision of the USA Patriot Act allowed the Bush administration to name U.S. attorneys without confirmation from the Senate. That provision was repealed early this year amid the uproar over the firings McKay and at least seven other U.S. attorneys around the country.

Once the provision was repealed, the law regarding U.S. attorney appointments returned to its former state: If someone isn't nominated and confirmed to the position within 120 days, the federal court in the district gets to make the appointment. The appointment lasts until someone is nominated by the president and confirmed by the Senate.

Lasnik said last week that his law clerks had been reviewing federal law and he had consulted with other chief district court judges in the Ninth Circuit to see how they're handling the replacement of their U.S. attorneys.

"Our court has great regard for the United States Attorney's Office in this district and we wanted to maintain the standard of excellence and professionalism that John McKay set and that Jeff Sullivan has continued as Interim U.S. Attorney," Lasnik wrote in an email this morning.
5.27.2009 9:47pm
Fub:
whit wrote at 5.27.2009 3:04am:
if you are a hammer, everything looks like a nail.

if you are a defense attorney, maybe it seems like everybody is out to get your client even if he's obviously innocent.
Except that my general opinions were formed from witnessing a lifetime worth of abusive and corrupt government officials before I ever cracked a casebook. Practicing law a while only revealed some technical details of their motivations, methods and milieu. A pathological and consuming personal need to always "be right" is just one such motivation I had long suspected.

Not all officials are abusive. The problem for ordinary citizens is that those who are not abusive are usually willing to tolerate the guy down the hall who is.
5.28.2009 12:27pm

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