The Call for a Special Counsel
As Christy has reported, Senators Schumer, DiFi, Feingold, and Whitehouse have called on Paul Clement to appoint a Special Counsel. I’m underwhelmed with the idea, for several reasons. First, Clement is clerkship spawn of Laurence Silberman and Antonin Scalia, both of whom have well-earned reputations for putting their partisan loyalties (and duck hunting hobbies) above their commitment to independent justice. So what’s to stop Clement from appointing Ken Starr, who I’m sure could declare Alberto Gonzales innocent before the end of August’s recess?
There is, of course, the outside chance that Clement would do the right thing and appoint someone who could bring some independence to the investigation. To offer a ray of support for the suggestion, Clement is many smart people’s first choice to be the answer to this Sidney Blumenthal puzzle.
Yet another Bush legal official, even now at thecommanding heights of power, admits that the administration’s policiesare largely discredited. In its defense, he says without a hint ofirony or sarcasm, "Not everything we’ve done has been illegal." Headds, "Not everything has been ultra vires" — a legal term referringto actions beyond the law.
At the time, I voted for Fred Fielding, but I think Clement a very like candidate. So if he is, indeed, willing to publicly declare the Administration to be breaking the law, then maybe he’d pick someone competent. And heck–DC’s a small place, maybe the four Senators calling on Clement know this.
But aside from the question of whether Clement will pick someone competent, I have these two complaints. First, the Senators endorse the ongoing IG/OPR investigation of the USA firings.
Special counsel chosen by DOJ? Like Ken Starr?
Dems seem to think that Bush has run out of GOP whores willing to do a legal whitewash.
I happen to think the supply of GOP whores in the legal profession is vast beyond measure.
I am continuously surprised that this administration continues to get people to do it’s unlawful bidding even at serious personal risk. Do these people not know that when the white house turns over in the next election, there will no longer be a legal impediment to punishing their behavior? THe list of people Bush has to pardon to keep out of jail after his administration is probably in the hundreds. If Clement decides to refuse to appoint a special investigator, and gives disingenuous grounds for that refusal, he is putting his license to practice law in jeapordy, but exposing himself to obstruction of justice charges. There is NO WAY Gonzales can hope to stay out of jail except by presidential pardon. Clement may be a Scalia lapdog, but Scalia can’t pardon. He just might do the right thing out of pure self-interest. I hope.
Marcy, I just have to wonder if maybe this is to take Alberto out of the game and keep him occupied while they do some work on other issues — like Cheney. At this point, I think AGAG is small potatoes compared to some other characters involved in this sordid mess.
I keep thinking about Senator Whitehouse’s revealing memo that made AGAG look so somber. Could that have been a shot across the bow? I just have to believe that the good senator has more in his arsenal…
Like you, I get decidedly underwhelmed with what is going on — and extremely frustrated that things are not happening much more quickly. Let’s keep the faith, though… I tell myself that about a million times a day
I thought Gonzales said at the hearing this week that the decision whether or not to appoint a special counsel would belong to the Deputy Attorney General. That’s still Paul McNulty, isn’t it?
It IS to underwhelming. Anything short of laughing this tripe out of the ballpark is to underwhelming. Anything tied to the DOJ and it’s leadership is no good for the exact reasons I alluded to on the earlier thread. Furthermore, the scope cannot be limited like has been contemplated by Schumer or whoever set that language. In fact, EW, it cannot be limited to even what you propose; it has to go where it leads. This discussion, so far, is effectively playing right into their hands in terms of running out the clock. If a very narrow investigation of Gonzales is implemented, in popular lore, MSM, pundits, the Goopers and everybody else is going to mentally put the whole of the wrongs on the shoulders of a little, narrow, pissant investigation and it will be the shiny, sparkly object that draws focus away from the big picture. This is no good in any iteration.
This is a big fat game of chicken.
I am thinking that Clement will be ordered by Bush to refuse the Senator’s request. Junta shills will be paraded out to call it â€petty theatrics.†(this tack was signalled yesterday, I believe, during Snow’s press conference) And congress will be forced, by Bush, to really decide whether or not they have the cajones to file articles of impeachment–for obstruction of justice and other high crimes and misdemeanors.
But I do think there is some determination among some, to go through with this. I am particularly curious about Spector’s â€threats†to Roberts and Alito regarding their confirmation testimony wrt to precedent. Spector may be a snake, but he is a smart one, and he may be more concerned about his own skin and legacy than he is about Bush and the GOP. And old enough to know that if Bush gets away with establishing a virtually unhindered theory of unitary executive in the federal courts, it will come back to bit the GOP (and the country) in the very near future, in which it seems likely that the GOP will be totally eclipsed by a Democratic majority in 2 of the 3 branches. Of course, Bush could care less about any of this–this is all about HIM, and HIM getting to do what he wants to do just because he wants to.
If a Special Counsel is named to investigate perjury before Congress by the Attorney General, I don’t see how Gonzo can stay in his job?
What are the DoJ rules regarding Gonzo’s holding his office while the target of a perjury investigation?
lysias, I think it would have been McNulty, but he’s tainted by his involvement, so it goes to Clement to appoint.
lysias
Clement is overseeing US Purge after Gonzales recused himself (though that didn’t stop Clement from writing an opinion defending the WH).
Gonzales made a mistake, though, in saying that Clement also oversees the Plame investigation–that’s David Margolis.
With GOnzales recused of every real issue in his department, of course, it’s probably hard to figure out who is in charge where.
I rarely do this here, because the regulars are so attentive. With the thought that others may be coming by this post without having read previous posts and comments, I am going to EPU (repost) something from a couple of threads back:
The problem I see with a special counsel is exactly what we just went through on the Libby sentencing. If the special counsel has anything to do whatsoever with the DOJ, it just doesn’t work from an appearance of impropriety standpoint. And if you think there were questions about Fitz having to much independence and authority; jiminy can you imagine the screams that would be attendant to the authority and independence that would be necessary for a special counsel against Gonzales? I just don’t see how it could be run as an adjunct to the DOJ. The other option is having it run off a Congressional branch; either the House or Senate. But the Republicans have made clear they are for party over country and that few of them, if any, will splinter off to side with common sense, reality and constitutional justice. The net result then is that it is a purely political exercise; but if that is the result anyway, why not go ahead and make it an impeachment investigation. Everybody is fearfully and cowardly tapdancing around the pinhead of timidity. I know I am a broken record (digital loop in this day and age I guess), but there is really only one thing that makes sense and, by chance, it is the age old remedy provided exactly for this.
Ha ha, even better than Ken Starr- they should get Bork.
What are the DoJ rules regarding Gonzo’s holding his office while the target of a perjury investigation?
There are none. A cabinet secretary serves at the pleasure of the president subject to impeachment by Congress.
Hello Emptyy Wheels
The dems strategy seems to be comity to get a few more repubs on board so they can go forward with lege agenda. That ship is sunk after the filibuster and veto threats. Time to circumvent the stacked judiciary with Impeachment. MSM has to cover the televised Impeachment hearings and the cat will finally be out of the bag. AS T.Jefferson pointed out in 1801 an informed electorate is needed for democratic process to work. The job before us is to get out the facts for the We the People which is the House’s responsibility. See mimikatz comments on Impeachment. It is the constitutional process that will not be obstructed. A clear statement to executive and judiciary that this will never again be tolerated even though big money buys a lot.
Ha ha, even better than Ken Starr- they should get Bork.
I wonder how many Regent University Law School twinkies are looking for their next important assignment?
The dems strategy seems to be comity to get a few more repubs on board so they can go forward with lege agenda. That ship is sunk after the filibuster and veto threats. Time to circumvent the stacked judiciary with Impeachment. MSM has to cover the televised Impeachment hearings and the cat will finally be out of the bag. AS T.Jefferson pointed out in 1801 an informed electorate is needed for democratic process to work. The job before us is to get out the facts for the We the People which is the House’s responsibility. See mimikatz comments on Impeachment. It is the constitutional process that will not be obstructed. A clear statement to executive and judiciary that this will never again be tolerated even though big money buys a lot.
Bush ordering no special counsel is best case scenario, as it places impeachment on the high moral ground, and prevents a hack special counsel from running out the clock.
Bush’s risk from his point of view is that a special counsel might actually not take orders from the WH–he needs someone who is not such a complete and obvious administration whore that they are discredited on Day One, but will play by WH rules.
Clement is not reputed to be a dope. IF, if, if he agreed to do such an appointment, he knows he would have to pick someone of stature.
Someone with major porsecutorial chops. There are few superstars left out there that don’t have some kind of conflict of interst or other.
Exception, Chuck Schumer’s constituent, former USA SDNY David Kelley.
Kelley sucessfully prosecuted the first World Trade Center bombing, co-founded the SDNY anti-terrorism unit with PatFitz and was recommended to fill the slot at SDNY by Comey when Comey left that job to become DAG.
Kelley recently completed a â€special presecutor†gig on behalf of NYS Gov. Elliot SPitzer investiagting allegations of wrongdoing by NYS Comptroller Hevesi.
Kelley’s got the prosecutorial chops, the street cred, and enough name recognition on the Hill to COMMAND respect.
Just in case Clement reads TNH, here is the solution ….
Maybe their best choice for a special counsel is some Democratic legal figure that they can blackmail or otherwise control?
EW – what the IG can not investigate is the conduct of lawyers as lawyers, in their professional capacity or with respect to compliance with their Code of Ethisc or of Professional Conduct- e.g., the advice they gave, whether they took advantage of a client, etc. That is why OPR (Office of Professional Responsiblity) is pulled in.
So when you say, â€Now, I haven’t checked back this week to see whether Gonzales grated the IG the ability to investigate lawyers. But as of last week, there was a critical flaw to the IG investigation, which was that the IG side, which is the only office that can bring charges, was not permitted to investigate lawyers’ conduct.†that is true, but wouldn’t apply to whether or not a lawyer in the Dept committed a criminal act, like perjury. The IG cannot, in any agency, do much or anything prosecutorial for crimes it finds, however, and often has a vested interest in attempting to characterize situations as unintentional. fwiw
Completely agree on the passive voice observation and I also think that the scope should be more broadly and generally stated on several fronts, but it’s a start.
Also completely agree that Clement has acted less as a lawyer and more as a partisan in his position. It’s been mentioned before, but he is the one who stood before the SCOTUS and argued, on behalf of the Executive Branch that the US does not torture or do things ’like’ torture. This, despite the OLC torture memos, the extraordinary renditions, the memos and picture and videos littering the desks, inboxes and computers of generals and dept heads and – most importantly – the President’s direct actions with respect to Executive orders for the obscene. Hours later, karma showed what it thought of Clement with the release of the first Abu Ghraib pictures.
He, like McNulty had been, has been noted as being something of a favorite with SCOTUS and Congress, though, so ???
His letter opinion on the President’s assertion of Exec Privilege re: the firings is pretty telling as to what he has become.
LHP – Do you see a problem with the limited stated scope being discussed and the fact that such a restricted probe would still be so shiny as to draw the focus off the bigger picture? Not to mention still having problems with the privilege roadblocks already hoisted by the Administration?
I read on the Daily Kos live diary on the HJC hearing of FBI Director Mueller that Mueller confirms Comey’s — as opposed to Gonzales’s — account of the hospital incident.
LOL
I figured you’d be through here recommending Kelley, LHP. Though with all due respect, I think Clement would find him too partisan and I think others would assume he is too close to Comey.
Gonzales made a mistake, though, in saying that Clement also oversees the Plame investigation–that’s David Margolis.
Are you sure it is Margolis and not McNulty? I think there was discussion in the Plame case initial pleadings that once the DAG slot was filled, with someone who had no conflicts and was not required to recuse (like McNulty) that the delegation to Margolis could be recalled at will by the new DAG. Walton, who is usually careful on titles and designations, repeatedly refers in his initial Opinion on principal/inferior officer issues, to the fact that the Deputy Atty Gen. can remove Fitzgerald at will and never even drops a footnote to say he means the acting AG for the Plame matter who is currently Margolis – instead, he says DAG over and over.
I’d like someone in Congress to have asked McNulty the question when they had him – whether or not he recalled the delegation to McNulty and he became the supervisory atty on the Plame matter. If he did, there might have been some further delegations once he announced he was leaving (just as Comey delegated to Margolis as he was leaving) and perhaps Clement did end up with the acting authority (I think it was probably mis-speak, but I can see where there is a way it could be true that Clement is acting on Plame now).
Would be nice to have someone in Congress ask the right questions to nail it down. FOr that matter, I always wanted them to also ask the questions of Margolis/McNulty – whoever is supervisory – to see if they overruled or modified, interfered with or amended any actions of the Spec Pros or if they recalled any delegations of authority to him or superceded any charging decisions made by him etc.
Just to clear the air on Rove, who was let off the hook right about the time that the interlocutory appeal period would have run out on Walton’s rulings on principal/inferior officer. Those rulings certainly seemed to open the door for the acting supervisor/DAG to revoke some of the authority originally allocated to the Spec Pros. and I’d just like them to complete the record as to who ended up as supervisor and what they did or did not do as supervisor. Since the outside Spec Pros regs do not apply, the regs that would have required the acting AG to make a report to Congress if the Acting AG overrode any charging or indictment etc. decision also do not apply. So IMO, that means it would be prudent for Congress to at least ask and make sure they know what took place. fwiw.
Mary your last paragraph is a good point, but they won’t clear that up anytime soon, because it might affect Libby’s appeal, at least indirectly by giving a more specific answer to the status. so I would not expect any clarification on this at least until the appeal is completed.
Hey, Mauimom! Hi, EW. Hi, all. Forget Starr. Forget Bork. What we really need is a resurrected Archibald Cox! But, seriously, folks. Who’re ya gonna call? Poop! To find an eminent prosecutor without an axe to grind in this matter, you might have to go offshore!
I have no idea how this works, but is a letter from four Senators in the opposition party, though members of a Senate majority, an adequate request to the DOJ to appoint a special counsel? Must the request come from a subcommittee, committee or the full Senate, or can it come from a single Senator? I assume whether to appoint a special counsel is wholly within the discretion of the DOJ.
At the very least, representatives of the Senate should negotiate with the DOJ to refine the appointment language, and to include niceties about staff, budget, cut-off date and extension language, periodic reports, etc. Congress will have to foot a separate bill for this. None of us want to spend $70 million and wait five years for a Kyle Sampson wannabee to tell us that Gonzo did everything by the book (without telling us which book).
One option for Clements that no one has mentioned is that he might just decide that he wants to spend more time with his family right before bush* tries to tell him not appoint a special prosecutor.
Do they have Robert Bork wannabe waiting in the wings?
Unfortunately, I’m not sure there is an actionable perjury here, just incredibly weasely parsing (not that the bar should be set so low for USAG). As Tony Snow said, AGAG has been â€consistent†– and in AGAG’s nomenclature, the Terrorist Surveillance Program (â€TSPâ€) has always been the prgram confirmed by GWB. Under this set of terms, the brouhaha that led to the emergency Gang of 8 briefing and visit to Ashcroft’s hospital bed could not have had anything to do with the TSP — it only came into being AFTER and as a result of the brouhaha. An excerpt from today’s Froomkin sets the stage nicely:
â€Soon after 9/11, the administration started eavesdropping on Americans. By March 2004, Bush’s own Justice Department had decided that the program was clearly illegal, and top department officials couldn’t find a way to rationalize it. After a rebellion led by Comey — and backed by a hospitalized John Ashcroft — the White House agreed to make some changes. The revised program, still controversial, was described in the New York Times in December 2005. The White House christened it the â€Terrorist Surveillance Program.†And in January 2007, Bush agreed to put the revised program under court jurisdiction — although it’s not clear exactly what that means.â€
As a result, consistent with the terms AGAG has been very carefully using, the TSP only describes the revised warrantless wiretapping program, while the â€Comey Rebellion†and Gang of 8 briefing was, actually, about â€other intelligence activities†— i.e., the warrantless wiretapping program as it existed prior and up to March 2004. As long as you accept AGAG’s terminology, and he remains â€consistentâ€, it would be very hard to prove perjury on this (isolated) issue.
A little housekeeping here, from an old grammarian:
â€It IS to underwhelming†(from our friend, the brilliant, bmaz): Should read: â€It IS too underwhelming.â€
bmaz, my dear,
To is a preposition which implies â€movement or direction†of some sort from one thing to another: “primarily tto express the relation of direction of approach and arrival, making its governed word denote the terminus…â€* Further definition is too long to quote here.
Too is an adverb, which means, according to my *1958 edition of Merriam-Webster New Collegiate Dictionary [The Bible given to me by my mother upon graduation from high school] â€..more than enough; as, it is too long [snark repellant: yeh, yeh, I know….] to such a degree as to be regrettable; as too bad.â€
I think we are worrying too much, here. Maybe Bush will get smart (I know, I know) and choose a Special Counsel with a stellar reputation?
If I were Paul Clement, I would be incredibly resentful of the way the administration deceived me and got me to tell the Justices in the Padilla oral argument that they could be confident the executive branch would not torture.
The Solicitor General, Ted Olson, quit shortly after that debacle. Paul Clement, then his deputy, did not.
bmaz – how do you think it would affect the Libby appeal? I guess my focus was on whether or not anything was done vis a vis the Rove branch of the investigation, but figuring out who is supervising (still Margolis, called back to McNulty, over to Clement whichever) shouldn’t have any impact, should it? The second aspect – determining whether there was ever any active involvement by the supervisor, I guess could have an impact but since they have already argued on the record that there was no involvement in the Libby case, other than Fitzgerald running the info about the indictment by Margolis) with no response from Gov*, I’m not thinking there would be any impact there and if there was involvement vis a vis other persons, then all that it would do is make Fitzgerald’s inferior officer argument stronger it seems.
I don’t really think there is all that much there, but I like having loose ends tied up. I thought it was odd that Fitzgerald, in the midst of his arguments as to why he was an inferior officer, got adamant that he did not â€have to†run his Libby indictment by Margolis, he â€just did it†There are certainly no real reasons relating to Libby that would mitigate against him saying, â€I knew Maroglis was the supervisory atty and I didn’t know definitely whether I did or did not have to run it by him, so I erred on the side of caution†or some such yada yada.
Instead, he made a point out of stubbornly saying he did not have to do what he did. That makes me wonder a bit about whether he was trying to preserve an argument elsewhere – maybe before the same judge – that he did NOT need approval from his now current supervisor about another indictment and that his now current supervisor can only fire him if he’s not happy; that his now current supervisor cannot interfere with Fitzgerald’s charging decision. ?? And then I kinda think a bit about sealed v. sealed, and while I basically believe there’s nothing there, I do a lot of wild ass speculation to make sure that all bases are covered as a general matter. So I think, hmm, if McNulty called back the delegation from Margolis, Fitzgerald ran the indictment by him the way he did Margolis, and McNulty objected – they might have ended up before Walton. And given that the style of the action might be Paul McNulty, Acting Attorney General (bc that’s what he would be for this matter and there aren’t many where he is acting AG) v. Patrick Fitzgerald, Special Prosecutor, you might have to seal both names to give confidentiality to the nature of the proceeding.
In any event, I just think that Congress, having really abdicated and passed the buck more than they should have IMO in the Plame investigation, should/could at least ask enough to find out who is supervising the Plame investigation now, and have DOJ certify that there were either no instances where they overrode the Spec Pros or called back his designated authority etc. or that if there were such instances, they provide Congress with a list of their supervisory interventions (in a closed hearing would be fine with me, at least initially) then I think it would tie up loose ends. Loose ends don’t often lead anywhere, but they are like pieces of a second puzzle that got mixed in and need to be eliminated IMO. Again, worth what you paid for it wwypfi?
Interesting point, Mary–I see where you’re going now.
Oh, Zombie Archibald Cox would be great.
How about John Dean? He used to be a lawyer, didn’t he?
Or, (jesus here it comes) Rudy. What better way to get his face in the papers than by giving the investigation to him? And then after he ousts Gonzo, they can just hand him the AG job and he can go ahead and move all his luggage into the White House.
excuse me I must go throw up now.
Mary and EW – I am not saying it would affect the appeal; I am not positive it could at this point. And, even if it did, Bush could just inflict the coup de gras and fully pardon him. At any rate, the basis of my slightly reactionary comment was that, in spite of being legally probably the strongest point the Libby team had, there were some pretty smooth edges on the way their argument on the control structure on Fitzgerald was laid out. This may or may not have been by design, quite frankly the control strucure really was a tad ambiguous to start with. To me, I never particularly cared that much about ambiguity in the structure because, for the life of me, I could not find one iota of alleged prejudice to the defense (unless you count the mere fact that charges were filed, and that wasn’t going to fly). I did not find this to be a jurisdictional issue (others may disagree); so, therefore, you pretty much need either actual or implied prejudice for this argument to have any viability whatsoever. It has been a long time since I argued these issues so I cannot remember the pertinent cases off the top of my head (Blockburger?); but the standard has always required an established showing of prejudice. Back to the point, however, if the DOJ were to establish the control structure now, and lock it down by saying that is what it always was, what they want to establish here and now might turn out to be contrary to what Libby is arguing. the more I think about it thanks to your discussion, the more I think I was far to deep in the weeds with my concern and it is probably irrelevant.
tekel – Why not just give it to Frederick of Hollywood Thompson? Then we could clock his elapsed time to run to the White House and tell them everything happening.
they’re punting,
but why?
what do they get by turning things over to the bush doj?
are they counting on a rejection of their suggestion?
And given that the style of the action might be Paul McNulty, Acting Attorney General (bc that’s what he would be for this matter and there aren’t many where he is acting AG) v. Patrick Fitzgerald, Special Prosecutor, you might have to seal both names to give confidentiality to the nature of the proceeding. says Mary.
Ooh, that is too juicy.
I don’t see how you could pluck a special counsel from SDNY, or even D.C. They’re too connected. You’ve got to travel to Uranus.
I thought the problem with the IG was that it couldn’t investigate the ’senior’ officers at DOJ rather than lawyers’ conduct as lawyers. Did I misread Leahy’s letter to AGAG regarding that? I didn’t watch the whole testimony, but haven’t come across any reporting of AGAG agreeing to lift any restrictions; was it actually asked at the hearing? am I missing something important here?
Anyone starting a pool for when HJC begins an impeachment inquiry regarding AGAG? could this letter be more of a signal to the HJC that the time is right? After all it would certainly be inappropriate of senators to request articles of impeachment be prepared; though I’m not certain of the appropriateness of a request for an impeachment inquiry, since that wouldn’t indicate a prejudice from the senators.