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Politicizing Justice:

On Friday, the Washington Post reported on new evidence documenting Karl Rove's influence on the decision to remove several U.S. Attorneys. Rove now acknowledges being a "conduit" for complaints from home-state politicians about some of the fired prosecutors and copies of e-mails obtained by the Post suggest he and White House counsel Harriett Miers were both more involved than either has publicly acknowledged. This is but one example of alleged politicization of the Justice Department under the Bush Administration.

President Obama promised to end the politicization of the Justice Department. Responding to criticism of his involvement in controversial pardons during the Clinton Administration, Attorney General Eric Holder promised Congress he would "work to restore the credibility of a department badly shaken by allegations of improper political interference." Writing in The Weekly Standard, Jennifer Rubin suggests this promise has yet to be fulfilled

in the first seven months of the Obama administration, a series of hyper-partisan decisions, questionable appointments, and the inexplicable dismissal of a high-profile voter intimidation case against the New Black Panther party have once again fanned suspicions that the Justice Department is a pawn in partisan political battles.
Orin Kerr and I posted extensively on Holder's treatment of OLC, yet this is just one of the many episodes detailed in Rubin's piece. If her account is accurate, it's quite troubling.

Houston Lawyer:
But is anyone surprised? Just wait until they've had time not just to dismiss suits against their friends, but bring them against their enemies.
8.2.2009 11:43pm
Jon Roland (mail) (www):
It is too easy to attack requests to remove U.S. attorneys as "political", but the job is political and not an entitlement and the Administration needs to be able to replace them with better ones.

What is needed more is to remove impediments to private criminal prosecutions, so that concerned citizens, with an indictment from the grand jury, can prosecute corrupt officials that the professionals won't.
8.2.2009 11:53pm
AlanDownunder (mail):
The absence of prosecutions for murder by torture and torture authorisations, and for clear offences against FISA, and for destruction of presidential records, is evidence that Obama has improperly influenced the DoJ just as egregiously as Bush did through Rove.

At least Rove had the decency to be underhand about it, but Obama has shamelessly broadcast his desire not to prosecute certain classes of crime and it appears so far that his A-G is accommodating his boss' wishes instead of doing his legal duty.

Whatever happened to the rule of law in the US? Why is it no longer the case that those who do the crime do the time?
8.3.2009 12:03am
lovethebomb:
What is needed more is to remove impediments to private criminal prosecutions, so that concerned citizens, with an indictment from the grand jury, can prosecute corrupt officials that the professionals won't.

Yes, and after they do that, they can allow private possession of nuclear weapons, so that concerned citizens, with their A bombs, can go after the rogue states that the professionals won't.
8.3.2009 12:20am
zuch (mail) (www):
Prof. Adler:

You have no standing to complain about Holder's alleged excesses if you didn't complain about Dubya's total subversion of the DoJ and the OLC.

Jon Roland:
What is needed more is to remove impediments to private criminal prosecutions, so that concerned citizens, with an indictment from the grand jury, can prosecute corrupt officials that the professionals won't.
You wouldn't like that. Really. Take my word for it.

Cheers,
8.3.2009 12:25am
Jon Roland (mail) (www):
Rove was not a "line" official, only an adviser. He was only passing messages, not making decisions or giving orders.

As for conducting prosecutions, there is no duty to prosecute. Prosecution is always discretionary. If you think someone should be prosecuted, take your complaint to the grand jury and prosecute the case yourself. If the system will let you.

As for zuch:

You wouldn't like that. Really. Take my word for it.

I would like the many prosecutions I would conduct.

I have a little list, of those who'd not be missed...
8.3.2009 12:35am
Cornellian (mail):
But is anyone surprised?

Surprised that a story like that appears in The Weekly Standard? Not at all, that's why I don't bother reading most MSM publications. They're like soap operas, just repeating the same points over and over regardless of what's going on in the outside world. Read them for a month and you pretty much know everything they'll ever say about anything.
8.3.2009 12:35am
Oren:

If you think someone should be prosecuted, take your complaint to the grand jury and prosecute the case yourself. If the system will let you.

In places like San Fransisco, every judge that refuses to give out a gay marriage license is going to be indicted for violation of 18USC242.
8.3.2009 12:39am
Psalm91 (mail):
JR:

"Rove was not a "line" official, only an adviser. He was only passing messages, not making decisions or giving orders."

Are you part of his legal team, leaking portions of his testimony before it is made public? Have you not read the emails over the last two and a half years? Probably the most absurd statement that could possibly in this thread. Rove was the end of the line for such decisions.
8.3.2009 12:42am
Doc Merlin:
"Whatever happened to the rule of law in the US? Why is it no longer the case that those who do the crime do the time?"

That would be impossible , nearly everyone in the US has committed a felony (most don't even know it). Its only natural that when you make everyone a criminal, justice becomes political, because, a high enough incarceration rate for the public at large would just about destroy a society.
8.3.2009 12:45am
lovethebomb:
As for conducting prosecutions, there is no duty to prosecute. Prosecution is always discretionary. If you think someone should be prosecuted, take your complaint to the grand jury and prosecute the case yourself. If the system will let you.

Exactly, just like the nuclear bomb. There is no duty to nuke rogue states back to the stone age; it is discretionary. If you think a rogue state should be nuked, nuke them yourself. If the system will let you.
8.3.2009 12:56am
DG:
{You have no standing to complain about Holder's alleged excesses if you didn't complain about Dubya's total subversion of the DoJ and the OLC. }

The DoJ and, in specific, the office of AG, has always been hyper-political, going back at least 30 years. Everyone seems shocked - just shocked! - when, administration after administration, the AG office is a prize for extreme partisans and the DoJ is a mess, but lets be clear - its not new. It wasn't new with Bush, it isn't new with Obama - it wasn't even new with Reagan and Meese!
8.3.2009 12:59am
comment reviewer:
"You have no standing"

Ad hominem.
8.3.2009 1:00am
/:
That would be impossible , nearly everyone in the US has committed a felony (most don't even know it). Its only natural that when you make everyone a criminal, justice becomes political, because, a high enough incarceration rate for the public at large would just about destroy a society.


This is important. Prosecutors can't be consistent, at least between each other, because the law is too complex. The complexity stems largely from ad-hoc legislation, a product of "gotta do something" mentality and endless rent seeking, and a fundamental unwillingness to examine new or old legislation from a principled standpoint. The resulting inevitable selective enforcement is then aimed at political targets, and reinforced by perversions such as "hate crime", which punish thought and attitude instead of action, and criminalization of traditional civil-law matters, wherein breaches of contract are treated in strange and special ways.
8.3.2009 1:04am
JK:
It's nice to see The Weekly Standard taking a strong principled and a non-partisan stand on this issue.
8.3.2009 1:05am
Randy R. (mail):
You are quoting from the Weekly Standard? Why not the New Republic? Or the National Review? Mother Jones?

Whether they are lefty or righty, these publications are called confirmation rags, because they exist to confirm everything you already believe. Cornellian is right -- once you read a few issues, you know exactly what they will ever right about. I'm really surprised that a law professor would read this trash, let alone quote it as a reputable source.

Or at least, when you start quoting from Mother Jones, then at least you will have the inference of impartiality.
8.3.2009 1:08am
http://volokh.com/?exclude=davidb :

Cornellian is right -- once you read a few issues, you know exactly what they will ever right about.

Freudian slip.
8.3.2009 1:12am
Kazinski:
I think Roland's proposal of private prosecutions has a lot of merit, as long as it's loser pays.

And I'm not just talking about court costs.
8.3.2009 1:16am
Jon Roland (mail) (www):
Oren:

In places like San Fransisco, every judge that refuses to give out a gay marriage license is going to be indicted for violation of 18USC242.

There can be no right to get a license. On marriage (or domestic partnership) there is also no duty to get a license.
8.3.2009 2:01am
Jon Roland (mail) (www):
Psalm91:

Rove was the end of the line for such decisions.

Really? If you investigate more deeply you will find that he was not as a matter of law. Informally, perhaps, just as Vice-President Cheney exercised influence that was beyond his lawful authority. But influence or informal advising is not legal responsibility.
8.3.2009 2:05am
Jon Roland (mail) (www):
Kazinski:

I think Roland's proposal of private prosecutions has a lot of merit, as long as it's loser pays.

The argument for that is just as strong for public prosecutions, perhaps even stronger.
8.3.2009 2:08am
Cornellian (mail):
Read the article on health care reform in the Aug 1-7 Economist for an example of the kind of reporting that the MSM seems utterly incapable of producing.

Personally, I think it's more economic than ideological - major news publications these days don't want to spend the money on reporting, so instead they just line up the usual pair of pundits for the issue in question, one Democrat, one Republican to say they're in favor or it, or opposed to it. That's what passes for reporting in the MSM these days.
8.3.2009 2:34am
Jon Roland (mail) (www):
Cornellian:

major news publications these days don't want to spend the money on reporting,

It's not so much to reduce costs as to supply what they think their readers want to pay for, which has become a race to the bottom as entertainment values increasingly dominate in our culture.
8.3.2009 3:23am
~aardvark (mail):
Jeez, Adler! Have you become a complete hack??

It's ironic that the Weekly Standard story and its citation here appear on the weekend that follow Obama's re-nomination of Bogden for the very job from which Rove&Co removed him for political considerations. And to take WS's word for Obama's politicization of the Justice Department is like asking Daily Kos to review Republican successes. WS is a propaganda outlet, not an investigative publication.

As for the dismissed case, apparently you forgot what happened to the Stevens prosecution. Since then, several cases have been abandoned, some with charges dismissed, some in even earlier stages, because the previous administration's prosecutors were so inept that they hopelessly screwed up the cases. Let's hope it wasn't all those Regent Law grads that Monica Goodling brought into DOJ.

Jon, stick to environmental law reporting--you are much better at it.
8.3.2009 3:50am
~aardvark (mail):
Before anyone tries to defend WS, I'll point out one line as an example.


Clint Bolick, a veteran of the Reagan Justice Department, observes, "I don't recall [another instance] when the Department of Justice went back to get a second answer, when you have a 'do over,' when the best lawyers come up with the 'wrong answer' from a policy perspective."


What a twat! How quickly they forget the ... Torture Memos! The memos were removed as a valid opinion and not relied on toward the end of the Bush Administration. Is that not a "do over" by Bolick's criteria?

The rest of Rubin's piece is much in the same vein. It really does read like a Daily Kos post--just ideology is on the other side. IGNORANCE IS STRENGTH!
8.3.2009 4:00am
Cato The Elder (mail) (www):
Here is the video of the Black Panther polling place incident that Eric Holders's DOJ didn't want to prosecute.
8.3.2009 5:11am
Angus:
Having read the piece, this is the evidence the Weekly Standard offers for the awful politicization of the DOJ in the last 6 months:

1. Eric Holder was involved in the Marc Rich pardon nine years ago!

2. The appointed AG took a stand on D.C. voting rights consistent with the views of the President who appointed him, a stand which is at least defensible through argument.

3. The Obama DOJ disagreed with the Bush DOJ over defining just what actions constitute voter intimidation, which led to some charges being dropped and others upheld. Afterwards, DOJ lawyers invoked executive privilege in refusing to answer questions by Republican congressman Frank Wolf (dishonestly called a "moderate" in the article). The WS claims that executive privilege is illegal. (WHAT??)

4. In terms of hiring, the Holder DOJ has blatantly and openly chosen people from top law schools, many of whom served in the Clinton DOJ or have other relevant experience in their fields. For example, the article specifically criticizes the decision to name a lawyer who published extensively about Guantanamo detentions to a panel on Guantanamo detentions, as she is clearly unqualified and unfamiliar with the subject.

5. The people described in #4 are all LIBERALS!!1! and therefore inherently unqualified to hold any position in the DOJ. (The unstated argument here is that the only way that Holder can prove he is "non-partisan" is to exclusively hire conservatives.)

6. Holder refused to kill an investigation of the torture memos begun in 2004, more than four years before Holder was nominated. This is proof that Holder alone is driving the investigation for purely partisan purposes...or something.

Sorry, but this stuff is too thin to even make gruel out of. No mention, of course, of Holder's decision to dismiss all charges and change the DOJ's position on former Republican Senator Ted Stevens. That wouldn't fit the crazy right-wing narrative.
8.3.2009 5:13am
Angus:

Here is the video of the Black Panther polling place incident that Eric Holders's DOJ didn't want to prosecute.

To be more precise, Holder's DOJ continued the prosecution of the man with the nightstick, but decided that voter intimidation charges against the others present who were not wielding weapons or, to my understanding, also were not harrassing or confronting voters, could not be supported by the evidence.
8.3.2009 5:19am
Cato The Elder (mail) (www):

To be more precise, Holder's DOJ continued the prosecution of the man with the nightstick, but decided that voter intimidation charges against the others present who were not wielding weapons or, to my understanding, also were not harrassing or confronting voters, could not be supported by the evidence.

Ah, I see.
8.3.2009 5:25am
Owen H. (mail):

The absence of prosecutions for murder by torture and torture authorisations, and for clear offences against FISA, and for destruction of presidential records, is evidence that Obama has improperly influenced the DoJ just as egregiously as Bush did through Rove.

At least Rove had the decency to be underhand about it, but Obama has shamelessly broadcast his desire not to prosecute certain classes of crime and it appears so far that his A-G is accommodating his boss' wishes instead of doing his legal duty.

Whatever happened to the rule of law in the US? Why is it no longer the case that those who do the crime do the time?



Amazing. Even the actions of the Bush administration are Obama's fault now.
8.3.2009 7:16am
Ariel:
Angus,

Holder's DOJ decided that, after those others had defaulted. Whether or not the evidence supported the case, it had already been won. It's an interesting prosecutor who drops charges after having won the case because only one person there had weapons, while the others were unarmed backup.
8.3.2009 7:20am
BT:
Just remember JFK appointed his brother as AG. That was not a political appointment.
8.3.2009 7:37am
bikeguy (mail):
Obama seems determined to outbush Bush. And he's doing an excellent job of it.
8.3.2009 7:40am
wolfefan (mail):
I have not yet read the article, but Frank Wolf is my congressman, and I have voted for him in the past. If the article in fact describes him as moderate, that is an mis-statement of such proportions that I would view anything else the author writes with some doubt. Kind of like the commenter here who wrote that Jackie Robinson really didn't have it so bad. If JHA lived in the DC area he would know how ridiculous it is to call Wolf a moderate.
8.3.2009 8:00am
Jeff Hall (mail) (www):
I just don't get it. If I disagree with the way a local federal prosecutor is acting, don't I have the First Amendment right to complain to my elected leaders? How is this "politicizing" the Justice Department? Would I be politicizing the Post Office if I complain about my letter carrier (not that I would, he's pretty hard-working and competent.)

And if the White House gets a complaint about a prosecutor, why shouldn't they pass it on to the Justice Department? What else are they supposed to do with citizen petitions that they find reasonable or plausible?
8.3.2009 8:13am
Jon Roland (mail) (www):
bikeguy:

Obama seems determined to outbush Bush. And he's doing an excellent job of it.

We can't completely turn the national government around by just replacing the president or through the appointments he gets to make. It is a matter of replacing everyone in government, and more than that, changing the political culture, a process of a generation or two. Ultimately, it goes all the way down to how we educate our children.
8.3.2009 8:17am
Angus:

It's an interesting prosecutor who drops charges after having won the case
Ariel,
Holder also called off the case against Ted Stevens after it had been won. The point of the DOJ isn't "winning" or "losing," but "justice."
8.3.2009 8:39am
Floridan:
J.H.: "And if the White House gets a complaint about a prosecutor, why shouldn't they pass it on to the Justice Department? What else are they supposed to do with citizen petitions that they find reasonable or plausible?"

I suppose that depends on whether or not the White House considers complaints that a prosecutor is not investigating and indicting a political opponent, or that a prosecutor is being too aggressive in going after a political friend "reasonable and plausible."
8.3.2009 8:55am
Widmerpool:
I think Angus has left out some other telling points:

1. Eric Holder did mean to prosecute the New Black Panther party voter intimidation incident, but the indictment was dismissed for referring to the Classic Black Panther party.

2. Eric Holder has a compelling argument for reversing course on the D.C. voting rights case but if he told it to you your head would explode.

2. Eric Holder would like to hire conservative republicans from top law schools but their resumes accidentally wound up with the discarded video footage of the New Black Panter party engaged in voter outreach.

Finally, Eric Holder clearly has a soft spot for former Senator Ted Stevens--who lost his Senate seat due to a bungled DOJ prosecution--by declining to throw the DOJ bus into reverse and running over Stevens' mangled body just one more time for good luck (this in spite of the fact that the plucky 86-year-old might try to run for Senate again).
8.3.2009 8:56am
Mithras Invicti (mail) (www):

the inexplicable dismissal of a high-profile voter intimidation case against the New Black Panther party ... .


Yes, intimidating black men standing outside a North Philly polling place is exactly like directing federal prosecutors to pursue charges against political opponents or lose their jobs.

You and Hans von Spakovsky are hilarious.

I did poll watching outside in South Philly for the primary and West Philly for the general. Let me tell you, black voter intimidation in an almost all-black polling place is nothing compared to what the white union dudes did in the primary. But that hurt Obama, so it's not part of the story line.

Have a great day in your echo chamber.
8.3.2009 8:57am
Hannibal Lector:
Holder also called off the case against Ted Stevens after it had been won.
It had nothing to do with Holder's sensitive regard for justice: The judge was about to toss the case because of egregious misconduct on the part of DoJ prosecutors. As I recall, several were sanctioned for their misconduct in this case, e.g., withholding exculpatory evidence.
8.3.2009 9:12am
Daniel Chapman (mail):
"Let me tell you, black voter intimidation in an almost all-black polling place is nothing compared to what the white union dudes did in the primary. But that hurt Obama, so it's not part of the story line."

I can assure you that we here at VC.com firmly believe that all Democrats are corrupt and engage in voter intimidation no matter which candidate they happen to be helping at the time. We intend to be fair and devote equal time to all forms of Democratic voter intimidation, but due to time constraints and other concerns, some stories will not always make it to print. We apologize for any confusion.
8.3.2009 9:21am
Joe T. Guest:
It doesn't bother me at all that the DOJ is politicized under Holder. It was under Ashcroft but particularly under Gonzales, and it was under Reno too, and my legal memory doesn't span back prior to the early 90s so I can't answer for Bush 41, Reagan or their predecessors, but I'd bet it was just as bad. Thing is, elections have consequences, and one of them is that when the party in power jiggers around DOJ, the party out of power will protest vehemently, and the party in power will respond by stating that "DOJ is not political at all, oh no, nothing could be further from the truth." And then all the rest of us will wring our hands and concern troll.

Same day, same complaints, same lame defenses, same people talking; the only thing that has changed the roles played by each of the actors. Yawn.

And, FWIW, I don't give a crap if the Black Panthers were going into the voting booth and kicking the crap out of people in Philly for voting for the wrong candidate for dog catcher. You want one party rule, you got one party rule. Now live with it. It's not our responsibility to protect the good people in Philthydelphia from the consequences of their actions. Lying in the bed you've made is another consequence of elections - except in California where you can call the maid in to remake the bed if you don't like the looks of the funny Gray stains on the pillow.
8.3.2009 9:48am
Hannibal Lector:
Mithras Invicti
"Let me tell you, black voter intimidation in an almost all-black polling place is nothing compared to what the white union dudes did in the primary. But that hurt Obama, so it's not part of the story line."
Aside from your uncorroborated rant would you preovide some evidence as compelling as that against the Black Panther thugs, e.g., a videotape supporting your assertions.
8.3.2009 9:50am
Andrew J. Lazarus (mail):
Why is aardvark the only person to mention Bogden's reappointment? To me it looks like the one-sentence refutation. Not that the Weekly Standard was likely to give Obama a fair shake to begin with.

Although, aadvark, I think you meant twit,
8.3.2009 10:13am
subpatre (mail):
Mithras Invicti says
" ... black voter intimidation in an almost all-black polling place is nothing compared ..."
Please explain to those who think all voter bullying is wrong, and that the writer is a racist bigot for blowing off intimidation in black areas. It should be prosecuted whenever it's proved —like caught on videotape. We obviously lack M. Invicti's nuance.
8.3.2009 10:37am
Bob from Ohio (mail):

Obama's re-nomination of Bogden for the very job from which Rove&Co removed him for political considerations.


His re-appointment was for "political considerations" too. It keeps the story going.

I think the DOJ was formed in 1876 which by coincidence is the year it beame "politicized".
8.3.2009 10:47am
AF:
If her account is accurate, it's quite troubling.

If what parts of it are accurate? These complaints, even if true, are about political appointments and the exercise of prosecutorial discretion. Those issues have always been "political."

The complaints about Bush were not that his political appointees or prosecutorial priorities were generally conservative, but that (1) he politicized the hiring of career appointees, (2) he fired USA's for partisan reasons, and (3) he manipulated the opinion of the OLC by cherry-picking one subordinate OLC lawyer with known views to issue opinions on keys issues.
8.3.2009 10:54am
Mithras Invicti (mail) (www):
I remember well when conservatives decried the intimidation tactics used to stop the vote count in a prior election.

Good times.

Listen, selective-outrage rightwingers. I'm a liberal Democrat in Philly, and even I am not going to defend the Philly Dem Party. They suck. People like me are working to change that. If you were actually interested in defending the integrity of the vote rather than just bashing liberals, I'd be happy to have your support. But you're not, you only want to maintain a "Dems steal elections" storyline.

If any of you want to hear the perspective of someone who has been a neutral witness to this stuff, in the 2008 primary most of the laws I am aware of relating to the conduct of a polling place were violated, including a dozen beefy guys wearing a candidate's t-shirt right next to the door of the place and the assistant judge of elections handing out sample ballots. (If you want to know why there is no video, that's your answer right there.) Yet you might be surprised to hear that, despite these tactics being aimed against the candidate I favored, I don't think anyone was actually deterred from voting for the candidate of their choice. It seems to me that a lot of this organized illegal activity is the payoff for political support, even though it doesn't actually work. So far as I can tell, the only thing that really influences elections at the local level is knocking on doors, but that takes actual effort (as opposed to standing around drinking coffee and eating soft pretzels outside a polling place) and isn't as visible to the political operatives who are paying the ward leaders. Having a big presence at the polling place or having a stack of sample ballots in your pocket is easy to show to the guy in the suit who is driving around to a hundred different places on election day, handing out sacks of cash. That is to say, corruption often correlates with incompetence, so it seems unsurprising to me that corrupt politicos are actually incompetent at rigging elections.
8.3.2009 11:06am
Oren:

I wrote:

In places like San Fransisco, every judge that refuses to give out a gay marriage license is going to be indicted for violation of 18USC242.

There can be no right to get a license. On marriage (or domestic partnership) there is also no duty to get a license.


Jon, of course, as a matter of law, failure to give out a gay marriage license is not a violation of 18USC242.

My point is that if you pick N random people off the streets of San Fransisco, it would not require particularly good rhetorical skills to get (N/2)+1 of them to return an indictment on the theory that equal marriage rights are, in fact (and contrary to any reasonable reading of the law), a civil right.
8.3.2009 11:11am
rarango (mail):
As other have asserted, the DOJ is the quintessential political agency in the Executive Branch. I do not understand why some commenters are catching the vapors over the fact that the office is political irrespective of the party in power. Lets see--who was JFK's AG?
8.3.2009 11:12am
Connecticut Lawyer (mail):
Of course the DOJ is politicized. It always has been, with rare exceptions. Any of you folks remember who JFK's AG was? In my lifetime, the only, and I mean the only AG who was not political was Prof. Levy, who was appointed by President Ford in the wake of the Watergate scandal. But generally speaking, the primary job of the AG is to cover the president's back, and secondarily, to implement the president's policies. Prosecuting criminals is a distant third.

That is why all the liberal caterwauling over Ashcroft and Gonzales was so ridiculous. I'm confident that few, if any, of the lawyers who complained so vociferously about the politicization of the DOJ under Bush really believed any of that crap. You can tell this is true from the fact that none of them seem to care that the exact same stuff is going on today.
8.3.2009 11:16am
Anderson (mail):
Although, aadvark, I think you meant twit,

If it was good enough for Robert Browning ....
8.3.2009 11:28am
DangerMouse:
That is why all the liberal caterwauling over Ashcroft and Gonzales was so ridiculous. I'm confident that few, if any, of the lawyers who complained so vociferously about the politicization of the DOJ under Bush really believed any of that crap. You can tell this is true from the fact that none of them seem to care that the exact same stuff is going on today.

All the more reason to hoist them by their own petard. Libs never want those arguments turned against them. Well, tough. Turnabout is always fair play in politics.
8.3.2009 12:00pm
Desdearryaben (mail) (www):
Let me see…
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8.3.2009 12:08pm
geokstr (mail):

Mithras Invicti:
Listen, selective-outrage rightwingers. I'm a liberal Democrat in Philly, and even I am not going to defend the Philly Dem Party. They suck. People like me are working to change that. If you were actually interested in defending the integrity of the vote rather than just bashing liberals, I'd be happy to have your support.

Great! I'm with you all the way in defending the integrity of the vote. So let's get started pushing for those laws that require that voters present ID to vote and proof of citizenship to register (and provide funds to help the poor get IDs), that voters have to vote in person to prevent fraudulent absentee ballots unless there is an actual valid real reason, that anyone who votes gets their finger purpled to prevent multiple votes, that election boards make strong efforts to ensure that ballots get to, back from, and counted for military members (you know, those people who risk their lives to protect the right to vote), and that voter databases get purged of dead people and cows and made up names and duplicates in more than one voting precinct. And that supposedly non-partisan community organizing groups, especially if they get any public funds, should non-partisanly try to obtain voter registations from people of all races and creeds, even in areas that might support those hated Republicans too. I'm sure you're with me on all those, right?

If any of you want to hear the perspective of someone who has been a neutral witness to this stuff, in the 2008 primary most of the laws I am aware of relating to the conduct of a polling place were violated, including a dozen beefy guys wearing a candidate's t-shirt right next to the door of the place and the assistant judge of elections handing out sample ballots. (If you want to know why there is no video, that's your answer right there.) Yet you might be surprised to hear that, despite these tactics being aimed against the candidate I favored, I don't think anyone was actually deterred from voting for the candidate of their choice.

But of course we believe you that a bunch of union thugs was against Obama. Apparently they got the memo from union headquarters. After all, we know for certain that unions across the board were anti-Obama.

Yeah, right. And I personally am aware that Obama himself slit the throat of the Kenyan official in charge of his birth certificate, but, gosh darn it, there's no video. You'll just have to take my word for it.
8.3.2009 12:35pm
Seattle Law Student (mail):

What is needed more is to remove impediments to private criminal prosecutions, so that concerned citizens, with an indictment from the grand jury, can prosecute corrupt officials that the professionals won't.


I've heard this 'sillyness' from right wingers before, and my natural inclination is to dismiss it, like many right wing ideas as "good in theory, poor in execution." But I decided to think on it for a moment, and I still think it wouldn't work.

1. How do you handle double jeapordy? local Nutbag files criminal charges against a genuine bad dude, bungles everything and the charges are dismissed / not guilty verdict. How do you then prosecute this person properly?

2. Many land use enforcement actions at the county level are complaint driven. Consequently neighbors with disputes use these laws to harass each other. The county ends up recognizing that the parties are using the law to hassle each other, and often slow rolls the enforcement action because it's not really an issue. If you gave neighbors with a greivance the right to file and prosecute criminal charges the courts would be jammed with trash.

3. Drug court, pre- and post- arrest diversion, scared straight, and numerous other programs would cease working entirely. it takes a skilled prosecutor to recognize when someone will benefit from the program, and to channel them into it.

4. When a prosecutor steps into a courtroom they have a very limited angle of argument on a given issue. Prosecutorial misconduct can be triggered by an utterance at the wrong time/wrong place during trial. you expect novices to not screw up? It's a dance with intricate steps to convict someone such that it sticks through an appeal.

5. Etc...
8.3.2009 12:43pm
SuperSkeptic (mail):
You know, there's an argument floating around now that government cant run cash-4-clunkers, so they cant run healthcare either... Listening to the description of voting in Philadelphia, I'm beginning to think the government can run voting, so they cant then run...well...anything after that......
8.3.2009 12:46pm
SuperSkeptic (mail):
***CANT*** run voting.

I totally promise that I'll start spell-checking and proof reading...
8.3.2009 1:05pm
Cato The Elder (mail) (www):

Listen, selective-outrage rightwingers. I'm a liberal Democrat in Philly, and even I am not going to defend the Philly Dem Party. They suck. People like me are working to change that. If you were actually interested in defending the integrity of the vote rather than just bashing liberals, I'd be happy to have your support. But you're not, you only want to maintain a "Dems steal elections" storyline.

Lamar: What happened to all them towers?

Brother Mouzone: Slow train coming.

Lamar: Huh?

Brother Mouzone: Reform, Lamar. Reform. (starts laughing)
8.3.2009 1:15pm
Anon321:
There are two arguments related to the US Attorneys scandal that I've never entirely understood. The first is that DOJ is inherently political, so we shouldn't really care about its politicization. The second is that the President can -- and routinely does -- fire US Attorneys for no reason at all, and therefore we shouldn't care if he fires them for any particular reason.

To be clear, I haven't followed the facts closely enough to be certain about what happened during the Bush DOJ, or what's happening now. My point is just to respond to people who say, in essence, "even if everything alleged is true, so what?" I'm also not trying to argue that the actions at issue are illegal (I haven't looked into it to be confident either way), but rather that there are certain actions that we should regard as inappropriate and for which the actors should face censure and retribution (whether at the polls or in the court of public opinion).

With regard to the first argument, it's surely true that the DOJ has always been "political," in the sense that it's ranks are filled by elected politicians (or by people appointed by those politicians), and in the sense that the results of elections affect the DOJ's composition and policies. But that's not to say that the DOJ inherently and inevitably is used to pursue narrow partisan advantages. Imagine that it were the norm for federal prosecutors to say, "When a Democrat is President, we avoid prosecuting Democrats, while trying to prosecute Republicans whenever possible. In particular, we target Republican candidates for office to try to sway elections. When a Republican is President, the roles are reversed." Surely we wouldn't respond to this by shrugging and saying, "Hey, it's a political office and that's what politicians do." Isn't the notion that prosecutors try to enforce the law as impartially as possible at least something to aspire towards and to lament when we fall short?

With regard to the second argument, the fact that you can fire someone for no reason doesn't imply that there's no such thing as firing someone for an inappropriate reason. For example, imagine that a CEO can fire his secretary -- an at-will employee -- without cause. That doesn't imply that it's completely unproblematic for him to say, "Sleep with me or you're fired." Or to decide, on racist grounds, that he's firing all at-will employees who don't share his race. In the same vein, the fact that Presidents typically fire all US Attorneys upon taking office does not imply that there can never be an inappropriate reason for firing one.

Setting the particulars of the case aside, can't we agree that the DOJ shouldn't bring prosecutions for the purpose of pursuing narrow partisan advantage? And that it's inappropriate for executive branch officials to require DOJ to do so?
8.3.2009 1:19pm
JK:

You know, there's an argument floating around now that government cant run cash-4-clunkers, so they cant run healthcare either... Listening to the description of voting in Philadelphia, I'm beginning to think the government can run voting, so they cant then run...well...anything after that......

Somehow I still manage to have some hope for democracy despite the a single "voter intimidation" case arguably being bungled, and it's not even terribly clear that it was.
8.3.2009 1:34pm
Eric Rasmusen (mail) (www):
These comments really are surprisingly ignorant of points such as which prosecutions were started or halted by political appointees and which by career prosecutors, and who has legal authority. This blog could benefit from having a restricted comment list, with notably ignorant or untruthful commentors blocked. They make it hard to find the comments with substance.
8.3.2009 1:35pm
Eric Rasmusen (mail) (www):
p.s. Also, this blog is important enough that I wouldn't be surprised if it attracts "disinformation" commentors, perhaps even professional political employees, to try to drown out real comments. Be on the watch for that.
8.3.2009 1:37pm
~aardvark (mail):

Although, aadvark, I think you meant twit,

I meant what I wrote. Which meaning you choose is up to you.
8.3.2009 2:27pm
Joe T. Guest:
If you were actually interested in defending the integrity of the vote rather than just bashing liberals, I'd be happy to have your support. But you're not, you only want to maintain a "Dems steal elections" storyline.


I'm really not interested in defending the integrity of the vote any longer, Mithras. You demonstrate exactly why I don't care - *your* opposition to corruption at politically, well, we're just in it for partisan purposes and we're nothing but a herd of venal hacks.

Both sets of partisans appear to want clean government... but only if it occurs under one party rule. So let's have one party rule for a while. Hey, what's the worst thing that could happen? Detroit?
8.3.2009 2:37pm
Joe T. Guest:
Pardon the correction:


If you were actually interested in defending the integrity of the vote rather than just bashing liberals, I'd be happy to have your support. But you're not, you only want to maintain a "Dems steal elections" storyline.


I'm really not interested in defending the integrity of the vote any longer, Mithras. You demonstrate exactly why I don't care - *your* opposition to corruption is purely altruistic but people you oppose politically, well, we're just in it for partisan purposes and we're nothing but a herd of venal hacks.

Both sets of partisans appear to want clean government... but only if it occurs under one party rule. So let's have one party rule for a while. Hey, what's the worst thing that could happen? Detroit?
8.3.2009 2:42pm
rarango (mail):
Anon321: I agree with your points from a standpoint of general principles; however, please tell me how your concerns are addressed within the political system. Seems to me there are two ways: impeachment--not likely for any sitting president; and the electoral process which replaced President Bush with President Obama. In the latter case it does appear to be more of the same and that suggests to me the electoral process is realtively toothless.

Rather than decry the situation (which I do as well) please give us some solutions. I dont see any solutions which leads, in turn, to my cynicism about politicians. I do not see any solutions out there. For those who believed Candidate Obama's promises, just how are those working out? and the same would have been true if John McCain had won. Fundamentally we are talking politics wherein the only arbiters are the voters.

Eric Rasumussen: while I think your points are well taken, how do you intend to ensure the political perspectives of the commenters not impinge on the legal analyses? Based upon my reading of this comment thread, it is the political leanings that affect the legal analyses (about which, BTW, I am totally ignorant). Your mileage my vary of course.
8.3.2009 2:42pm
~aardvark (mail):

There are two arguments related to the US Attorneys scandal that I've never entirely understood.

You got most of it under control.

The first is that DOJ is inherently political, so we shouldn't really care about its politicization.

It's been pointed out already (above) that the issue is not merely politicizing the political appointees. These idiots messed with career appointments as well. And they were brazen about it--at least, until caught.

The second is that the President can -- and routinely does -- fire US Attorneys for no reason at all, and therefore we shouldn't care if he fires them for any particular reason.

The included clause is actually not true. There have been exactly two USAs fired for no apparent cause over the past 40 years. The rest had very clear reasons for firing--at least, on paper. In fact, one of the USAs fired by the Bush administration was actually removed for incompetence--a judge basically said that either the administration removes him or he would. But the rest, including Bogden and, most obviously, Iglesias, were removed for being insufficiently loyal to the cause. And this does not even include a handful of others who changed their behavior to conform so that they would not be fired.

The appointments may be political, but prosecution should not be. What Rove&Co wanted to do is turn it into a political weapon. Those who would not go along would be chopped off.

I see absolutely no evidence that the Obama administration has done anything even remotely resembling the preceding scam. They've politicized the DOJ to the extent that 1) they've made political appointees and 2) these appointees affected policy decisions. I'm shocked, shocked there is gambling in this establishment!


[Bogden's] re-appointment was for "political considerations" too. It keeps the story going.


Yes. There is no question that the appointment was made for political consideration--a Democratic President appointing a life-long Republican (a second one in a month). If you don't see the difference between that and what went on the preceding eight years, there is no point discussing it. Go read the Weak-ly Standard--you won't learn anything new and that's just the way things should be.
8.3.2009 2:48pm
federale86 (mail) (www):
It appears that Eric Holder will go down in history as Obama's Andrey Vyshinskiy. And this will probably end the Department of Justice as we know it. But I will enjoy the turnabout in the next administration.
8.3.2009 2:53pm
~aardvark (mail):

this blog is important enough that I wouldn't be surprised if it attracts "disinformation" commentors, perhaps even professional political employees, to try to drown out real comments. Be on the watch for that.


The blog is important enough that it is read by people irrespectively of their political affiliation. And I recommend it to liberals and conservatives alike. This doesn't mean that all posts--or all bloggers, for that matter (Kopel, Anderson?)--have equal weight. But, overall, the skew is toward reasoned dialogue.

Not so for the comments--here, they clearly tend toward the delusional. I guess, the bunkers have been upgraded from shortwave radio to internet connections.

Have you heard the one about the birth certificate?..
8.3.2009 2:54pm
PLR:
People who are seriously interested in factual matters do not cite to The Weekly Standard, a mouthpiece for a school of thought built around the noble lie.

Surfing on to look for real legal topics now...
8.3.2009 2:56pm
rarango (mail):
PLR: perhaps for the same reason I do not cite the NYT--so what cites do you consider not built around the noble lie--Please share
8.3.2009 3:02pm
mls (www):
"Sorry, but this stuff is too thin to even make gruel out of. No mention, of course, of Holder's decision to dismiss all charges and change the DOJ's position on former Republican Senator Ted Stevens. That wouldn't fit the crazy right-wing narrative."

Hmmm, yes, but by this logic shouldn't the many articles regarding Bush's politicized DOJ have mentioned things like the decision to prosecute Stevens in the first place? Or the prosections of Abramoff, Cunningham, Ney, etc? How many of them did?
8.3.2009 3:22pm
Anon321:
The included clause is actually not true. There have been exactly two USAs fired for no apparent cause over the past 40 years.

I was thinking of the common practice of newly elected Presidents asking all of the US Attorneys appointed by their predecessor to resign at the beginning of the term. Which I see as fine, and significantly different from firing someone for failing to base prosecutions on partisan motives.

I agree with your points from a standpoint of general principles; however, please tell me how your concerns are addressed within the political system

Fair question. I think part of it has to do with influencing societal norms so that there's a general consensus that certain practices -- such as basing prosecutorial decisions on narrow partisan motives as a matter of course -- are beyond the pale, regardless of who's doing it. We should let candidates and elected officials know that we won't support them unless they make impartial prosecutorial decisions. And when they do, we should condemn them, whether they're part of "our" team or not.

Sanctions based on infrequent elections and on public censure are obviously imperfect. But I do think that partisan manipulation of the prosecutorial function will be much less likely if there's a broad, durable societal consensus against it, than if a big chunk of society shrugs it off or only condemns it opportunistically.
8.3.2009 3:30pm
rarango (mail):
Anon321--appreciate your thoughtful answer and, cynic in me aside, agree with it. Would be a major step forward if both political parties could agree to respect the impartiality of the DOJ.
8.3.2009 3:38pm
SuperSkeptic (mail):
Somehow I still manage to have some hope for democracy despite the a single "voter intimidation" case arguably being bungled, and it's not even terribly clear that it was.

It's not the bungling of the voter intimidation case - I honestly didn't see much intimidation in that video posted by Cato, the baton-ed gentleman was rather polite - it's the bungling of counting the votes in general. Need I cite Florida 2000? Or Al Franken's Minnesota debacle?

Moreover, what about this situation (the "politicization" of the DOJ) gives you (or any of you) hope for a system where anything goes as long as 50%+1 people decide it's a good idea?

...And yes, I'm aware of anti-democratic Constitutional principles, but let's be honest, most of the elite legal opinion of the day views such principles as inherently anti-democratic obstacles to the reform du jour, so they discard them in pursuit of a truer full democratization of all things in america.

I remain pretty skeptical of "democracy" - especially when I look outside my bunker!
8.3.2009 3:42pm
RPT (mail):
SS:

"Or Al Franken's Minnesota debacle?"

Coleman had a virtual blank check to litigate that result to death; he did and he lost in the MN court and abandoned any further appeal. His people did get outlawyered it appeared, but how is that a debacle like FL 2000?

Re the WS; apparently it is now owned by Phil Anschutz. Does anyone know whether this have affected any of its operations or perspectives?
8.3.2009 4:36pm
SuperSkeptic (mail):
grrr - a sidetracking response to a superfluous throwaway supporting citation. just strike it! grrr
8.3.2009 4:47pm
EH (mail):
man, a lot of red herring noise in this thread. i call that the smoke that points to fire.
8.3.2009 5:43pm
Angus:
Sometimes, it's nothing more than blowing smoke and claiming there's a fire.
8.3.2009 6:20pm
Jon Roland (mail) (www):
Seattle Law Student:


What is needed more is to remove impediments to private criminal prosecutions, so that concerned citizens, with an indictment from the grand jury, can prosecute corrupt officials that the professionals won't.


1. How do you handle double jeopardy?

How do you handle it with public prosecutors? The annals of legal history are replete with examples of corrupt prosecutors throwing cases against a crony in clever ways. It is up to the grand jury to only return indictments to persons they trust.
2. Many land use enforcement actions at the county level are complaint driven. Consequently neighbors with disputes use these laws to harass each other.

Those are supposed to be civil, not criminal.

3. Drug court, pre- and post- arrest diversion, scared straight, and numerous other programs would cease working entirely. it takes a skilled prosecutor to recognize when someone will benefit from the program, and to channel them into it.

It is highly unlikely a private prosecutor would be interested in such cases unless the public prosecutor is giving special handling to well-connected defendants.

4. When a prosecutor steps into a courtroom they have a very limited angle of argument on a given issue. Prosecutorial misconduct can be triggered by an utterance at the wrong time/wrong place during trial. you expect novices to not screw up? It's a dance with intricate steps to convict someone such that it sticks through an appeal.

Who said anything about novices? The way private prosecutions historically occurred was for a group of citizens to raise funds to hire a top lawyer to do them. (And, yes, sometimes it was done by sheriffs and constables, but in that era most of those had the training of lawyers.)

We are not talking about the grand jury issuing an indictment to an individual, but to team that might be led by an individual. It's not the DA who goes into the grand jury to get an indictment only he can use. He sends one deputy to the grand jury and another one to court.
8.3.2009 8:01pm
Jon Roland (mail) (www):
By the way, in Texas law there is a provision for paying private prosecutors out of public funds if funds are available. In the statute they are called pro tempore prosecutors.
8.3.2009 8:09pm
Connecticut Lawyer (mail):
While New York does not have private prosecutors, on occasion private lawyers represent the state pro bono in criminal appeals. I know, because I represented the People of Kings County pro bono in an appeal in the Appellate Division. This was a few years back, I don't know if the current DA has the same program.
8.3.2009 8:19pm
lovethebomb:
How do you handle it with public prosecutors?

Though a rule of law that leads courts to throw out cases that violate the Constitution. Or is that a trick question?
8.3.2009 11:46pm
Seattle Law Student (mail):

It is up to the grand jury to only return indictments to persons they trust


As far as I understand it you get a random grand jury, not one made up of people who already know the parties. That sounds more like a lynch mob. Furthermore what I'm talking about is when the amateur screws up and now the professionals cannot prosecute due to double jeapordy laws.


Those are supposed to be civil, not criminal.


My point exactly. Give criminal prosecution powers to Joe sixpack and you have an exponentially greater problem. see John Rolands comment from above "I have a little list, of those who'd not be missed..."


It is highly unlikely a private prosecutor would be interested in such cases unless the public prosecutor is giving special handling to well-connected defendants.


...or they were a nosy neighbor with time on their hands to get at all the neighborhood kids. A regular prosecutor would divert the 17 yr old miscreants, but an angry 77 yr old homeowner?
8.4.2009 12:44am
Jon Roland (mail) (www):
I have to wonder what Seattle Law Student is being taught in his law school. Not how to read, because he is determined to attack a proposal that is not being made, and to impose his own elitist biases.

First, where are grand juries selected at random? Not in any jurisdiction I know of. They are supposed to be, and some, including myself, have advocated they be, perhaps with an educational screening factor, but actual grand juries today are mostly chosen from among cronies of the judges or the prosecutors, or activists in their political parties. That process does indeed produce a lynch mob that rubberstamps the bills of indictment of the "professional" prosecutors, leading to the old saying, "I could indict a ham sandwich".

Second, he seems to have some naive notion that being elected a public prosecutor confers godlike virtue and wisdom on him. Real public prosecutors are mostly not like the ones in TV programs. The average citizen, picked at random, is less likely to be dishonest or abusive, and the average lawyer likely to be more competent. Most are only interested in racking up convictions to use as a steppingstone for higher office. Never mind whether the accused are actually guilty. They think they can intimidate almost anyone into accepting a plea bargain.

Third, prosecutions cost money. That puts them beyond the means of "Joe Sixpack". Anyone sponsoring a private prosecution is going to hire the best lawyer he can find, and to only do so for cases they are sure they can win, and that regular public prosecutors won't or can't.
8.4.2009 11:22am
Leo Marvin (mail):
Eric Rasmusen,

Just read on your site about your heartbreaking loss. Sympathy and prayers.
8.4.2009 5:34pm
markm (mail):
A suggestion: allow private prosecutions only of public officials.
8.5.2009 6:47am
loki13 (mail):

A suggestion: allow private prosecutions only of public officials.


So... let me see if I have this correct. The suggestion on the floor is as follows:

1. Allow criminal prosecutions by private individuals. (Jon Roland)*

2. As Seattle Law Student points out, there are double jeopardy issues and, well, basic competency issues with having every regular citizen commence private prosecutions.

3. But it's pointed out that you could have wealthy individuals and syndicates hire good private attorneys to do this! (Because, as we all know, in America there aren't any crackpots with too much time on their hands...) (Also Jon Roland)

4. But still... wouldn't this harass the regular folk?

5. Limit it to public officials. (Because, as we all know, public service attracts the best and brightest, especially at the local level, and the threat of constant criminal prosecutions and the legal bills arising from them wouldn't be a disincentive for running for office) (markm)

6. Profit!

Hmmmm... so, in essence, we have:
Wealthy individuals who will be able to file criminal charges against public officials whenever they choose. Or... individuals with too much time on their hands and/or pet theories that are out of the mainstream will be able to do it themselves.

Good times!

*Loki13's maxim- behind every "interesting" legal or constitutional theory lies a belief that income taxes shouldn't be paid. Wonder how this fits in?
8.5.2009 2:28pm

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