No Consequences for the Wholesale Politicization of Justice

Glenn Fine, DOJ’s Inspector General, showed up before the Senate Judiciary Committee today to talk about the two reports showing pervasive politicization of the Department of Justice.

The big take-away from the hearing–which reinforced what was already evident from the reports–is that those who politicized DOJ have basically gotten away with it: Monica Goodling, Kyle Sampson, Mike Elston, and others will not be held accountable for their actions.

For example, when Chuck Schumer asks Fine about consequences, Fine says the lawyers involved (and not all of them were lawyers) may–possibly–face sanctions from their Bar.

Schumer: On of the most shocking conclusions in your report is that someone like Monica Goodling, who politicized the appointment of Assistant US Attorneys, Immigration Judges, and even Counter-Terrorism positions may not face any consequences for her actions. So let me ask you this, Mr. Fine. Should such blatant politicization and illegal activity be subject to some criminal punishment so there would be some ultimate accountability.

Fine: I’m not sure it’s true to say she escaped any accountability and punishment. As I discussed with Senator Whitehouse earlier, she–people did leave the Department, so they can’t be disciplined by the Department, but we’ve recommended that they never get a job with the Department again and hopefully with the federal government again and that hopefully they consider this report if they ever do reapply. They have been exposed. Their conduct has been exposed in a transparent way for all to see. And then, there may be–I’m not saying there is but there may be appropriate Bar sanctions for–possibly–for attorneys who have committed misconduct and may have violated a Bar rule and so the Bar may look into that.

Sheldon Whitehouse follows up on Schumer’s questions to ask for specifics, looking for some means to hold these guys accountable. Whitehouse seems to be pointing to something bmaz has talked about (update: see this comment)–the difficulty in identifying the Bar rule that such misconduct might have violated.

Whitehouse: Um, with respect to the consequences for the violation of federal law. Can you identify what Bar rules might have been broken. … I did not see OPR making any referrals to the Disciplinary Council as a result, so I’m a little confused about what disciplinary consequences lawyers might face?

Fine: My understanding is, and I’ve had discussions with OPR about this, that OPR intends to, and we will participate in a notification to the Bars of individuals who are found to have committed misconduct, for them to review the conduct. Now I don’t believe OPR has done a lengthy review of this and say which exact rule but it does intend to and I think it is appropriate to notify the Bars of the individuals who were involved and in fact I think some of them have already been notified; I think individuals have provided our reports to various Bars for the Bar to look at. In terms of the rules, I’m not an expert in the area, potentially Rule 8.4 which talks about the administration of justice and acts going to the fitness to practice law. I’m not necessarily saying that does apply but I do think there are things that ought to be review and looked at and I think the experts in this area ought to do that.

As you might expect, that’s not good enough for Whitehouse. He goes on to ask about stripping the civil service protection of people hired through politicized means, and asks why Fine didn’t refer John Nowacki (though he doesn’t name him by name), who lied to protect Monica Goodling, for false statements. As you can see from the video, Fine is underwhelmed with either of those ideas.

I noted almost a year ago that the exodus of those who conducted the politicization of the government in general effectively made the Administration immune for having done so.

There’s nothing Glenn Fine said today that made me believe any differently with regards to the politicization of DOJ.

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  1. BayStateLibrul says:

    Marcy, your columns are forcing me to drink.
    Also, TPM is reporting that the Bates decision will not come until
    late August.
    Late, late, late…
    Corona, Corona, Corona,
    At least I’ve got two tics (bringing my grandson) to the Sox-Oakland
    Sunday game…
    There IS NO accountability with Bushie.
    End of story.

    • emptywheel says:

      BayState

      No, here’s what Ted said, which is what I’ve reported repeatedly (and did, earlier today).

      “We expect a court decisions on Miers and Bolten by the end of August,” Kalo said. “A lot will flow from that and will dictate action on Rove.”

      By the end, but possibly at the beginning (though, given Bates’ history–and I’m more of a cynic on this point than folks in HJC I’ve talked to–I wouldn’t hold my breath nor expect a positive outcome).

      THat said, Klonick seems utterly unaware of the big differences between this blown off subpoena and the Miers and Bolten ones (and continues to report this as typical EP). While the significant differences may not make for a difference in resolution, they may.

      In my discussions on this, I’ve found that those differences–and the lapsed time, and the likely Bates deicision, make inherent contempt more likely, prior to any referral to DOJ. Frankly, I think they should have made a case, based on the AG’s own statements, that DOJ has to pursue this, but they seem unwilling to try to embarrass him into pursuing this.

      • PetePierce says:

        You want what from John Bates when, Marcy? Come on. It ain’t happening on Miers, Bolten or Rove if it even gets that far before Obama’s inauguration.

        Has it ever bothered you that your Michigan Representative is positively afraid to use inherent contempt? Why doesn’t he? Rolling the dice with John Bates or most of the judges in the D.C. trial court or D.C. Circuit has worse odds than the quarter slots in Vegas.

    • PetePierce says:

      The Bates decision was made years ago when Bush rewarded him for participating on Ken Starr’s Whitewater team and mae John Bates one of four of the team who was rewarded with a federal trial bench. Amy St. Eve who presided over the Rezco trial and the Conrad Black trial and grants 99% of the motions and makes 99% of the FRE or evidence rulings for Pat Fitzgerald’s AUSAs is another of the little peanuts in this group.

      Bates decided “fuck you Conyers’ committee.” I’m glad to end the supense for you late in July. TPM also has no magic access as to when a judge and his or her law clerk will come up with a memorandum opinion.

      If and when Conyers’ committee also takes the same cowardly route with Carl Roves’ contempt citation proposal this morning if they can get the House and the cowardly Blue Dog idiots to vote for it, instead of inherent contempt, the same result will occur no matter who the DC district judge is, and Obama will be in the White House.

      And remember “Monica didn’t mean to. Try that the next time you rob a bank.

  2. lizard says:

    Fine did just enough that it could be competently argued that he did something, but not one inch more. With his decision to not interview more than a single hack at the white house, he reveals himself as either only marginally competent, or completely in the bag.

    I would LOVE to play poker with this guy, he is positively dripping with tells.

    • skdadl says:

      With his decision to not interview more than a single hack at the white house, he reveals himself as either only marginally competent, or completely in the bag.

      That was what struck me about the hearing — that Leahy and Specter walked up to that issue but then didn’t press it with a telling detail from Fine’s own report, the description of the seminar at the White House that Jan Williams attended and the document she took away from it that she passed on to Goodling, “The Thorough Process of Investigation” (25-26/146).

      (Excuse me for repeating myself — I wrote this somewhere earlier this a.m., but I was OT at that point.)

    • PetePierce says:

      That has been the common denominator of every OIG investigation he has done since being confirmed 12/15/2001 3 days before DOJ was sure they had tucked immunity from state bar dicipline into a revision of 28USC530B only to have the rug pulled out from under their skanky asses by Leahy and the boys at the last minute. You’ll remember and this is funny that when DOJ dropped the Patriot Act all 450 or so pages in typical DOJ discovery mode onto the desks of Congress at about 3AM the morning of the vote DOJ thought they had eliminated bar responsibility as to discipline. They found out they “got screwed” but the result on the street is if you want to avoid bar discipline or prosecution commit your violation of the law while on the payroll of DOJ and if its really egregious you can resign and you are pixie dusted the fuck off.

      This means of distribution of the “Patriot” Act was done so that they couldn’t read the Act (reading bills is farily foreign to Congress nowadays since lobbyist go to all that messy trouble to write them and being informed apparently isn’t in their job description.

      That’s not how Glenzilla thinks a patriot should act but it’s how DOJ thinks a patriot should act.

      The House passed a ban on lead in toys this morning but they forgot to pass a ban on lead in their ass.

  3. lizard says:

    At one point in the testimony of Fine, he was asked if he would report back to the committee about wether his probe was being hindered in any way by anybody, to which he replied he would certainly do so if anybody outside the justice department attempted to hinder him. Which, of course, was not the question he was asked.

    His most significant tell is a stammer in the beginnings of his answer, present (probably) when he is obfuscating and absent when on firmer ground.

    So I want to know if he will report on anybody WITHIN the DOJ who attempts (or has attempted) to obstruct him.

  4. lizard says:

    Another good question would have been (but wasn’t) whether OPR used investigative procedural bullshit to interfere with the IG’s half of the current investigations.

  5. AZ Matt says:

    DOJ is going to piddle along with this stuff. The bosses couldn’t care less if Mukasey’s only response is that they will make sure it doesn’t happen again.

  6. bmaz says:

    Here is Rule 8.4 of the DC ethics code

    Rule 8.4—Misconduct
    It is professional misconduct for a lawyer to:

    (a) Violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;
    (b) Commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects;
    (c) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation;
    (d) Engage in conduct that seriously interferes with the administration of justice;
    (e) State or imply an ability to influence improperly a government agency or official;
    (f) Knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law; or
    (g) Seek or threaten to seek criminal charges or disciplinary charges solely to obtain an advantage in a civil matter.

    Now, misconduct panels generally are not known to be keen about stretching the obvious meaning of ethics canons. The conduct disclosed in the report doesn’t necessarily fit real well into any of the enumerated grounds. Yes, you could fashion an argument on a couple, but nothing all that crystal clear.

    Secondly, that must be considered in conjunction with Rule 5.2:

    Rule 5.2—Subordinate Lawyers
    (a) A lawyer is bound by the Rules of Professional Conduct notwithstanding that the lawyer acted at the direction of another person.
    (b) A subordinate lawyer does not violate the Rules of Professional Conduct if that lawyer acts in accordance with a supervisory lawyer’s reasonable resolution of an arguable question of professional duty.

    Lastly, keep in mind that the long time modus operandi of the DC bar is to give incredible deference and benefit of the doubt to attorneys in the employ of the US Government. Even though Goodling is not a member of the DC bar, that is the jurisdiction whose conduct she would be judged by at a root level; i.e. if the argument is successfully made that Goodling was not in contravention in DC, Virginia is unlikely to take punitive action against her, and certainly unlikely to disbar her. If any action at all occurred, and I almost see it as unlikely, I think a letter of censure would be about it.

    Sheldon Whitehouse is right (and so was I) this is an effective whitewash of accountability.

    • bmaz says:

      And why not? What is there to deter this conduct in the future? Find a stalking horse get them to do the job and resign. What administration will see fit to punish this in the future when it was not in the past? What reason is there for the American public that doesn’t read this blog to think anything bad has gone on?

  7. Redshift says:

    Schumer and Whitehouse — at minimum, how about impeaching these bozos so they can never hold a government post again? If Iran-Contra is any guide, an IG report condemning them will be less of a barrier to the next Republican administration than wet tissue paper..

  8. Hmmm says:

    Long shot — Could the House perhaps pass a resolution condemning the conduct of Goodling, Sampson, at al.? While more minor than a criminal indictment, it nonetheless seems like the kind of public sanction that would tend to act as a disincentive to others who find themselves similarly situated in the future.

    I assume they were not high-enough ranking officers to strip them of future USG work, pensions, etc. via impeachment (even if the votes were there for that which I assume they are not).

    • bmaz says:

      Man, I dunno, non-binding Congressional resolutions have long been thought of as wet tissue paper at best; not sure that matriculates the ball down the field as Hank Stram used to say. (Hey it’s training camp time in the National Favre League; I’m getting the football itch. Even considered sending Marcy a crank email congratulating her on the Lions acquiring Brett Favre in a trade; it just wouldn’t have been believable though).

      • Hmmm says:

        If wet tissue is all we’ve got for now, then wet tissue it’ll have to be for now. You don’t think the prospect of a House resolution calling you out personally, by name, would have a deterrent effect?

        Setting up better options for next time is of course a separate discussion.

      • emptywheel says:

        Uh huh.

        And I’m such a ditzy girl I don’t even know that the Packers and the–what is our local team called again? are in the same Division.

            • bmaz says:

              Yeah, well, the local team here has never been called that either. I am told that the local power players are seeking to bring a professional football franchise to Phoenix.

              • 4jkb4ia says:

                You are two or three years away from a professional football team with your current roster.

              • bobschacht says:

                “Yeah, well, the local team here has never been called that either. I am told that the local power players are seeking to bring a professional football franchise to Phoenix.”

                [snicker]

                Well, as long as its not owned by someone named Bidwell it might be a good move.

                Why does Bidwell remind me of Bush?

                Bob in HI

  9. randiego says:

    Government work? Nah, they won’t need it – wingnut welfare until the end of their days…

  10. BayStateLibrul says:

    What was even more disturbing was that Fine would not be pinned down
    to a date, for the release of the Gonzo and attorney-gate affair.
    He basically said you’ll get it when you get it…
    I took this to mean after Bush leaves, or very late in his Presidency.
    Dodge another one…

  11. Loo Hoo. says:

    So why didn’t the SJC send Fine back to his bedroom to finish cleaning up, and tell him that they didn’t want to see him again until the job was done properly?

  12. PetePierce says:

    As to bar violations, most state bar associations have a two tier set of “rules of conduct” and many of them divide them into “ethical considerations” or “bar standards.” They go by slightly different names that are synonymous. There are also usually several levels of discipline that have similar names in different states raning from disbarment to formal admonitions (aka slaps on the wrist that mean next to nothing).

    But what Schumer and the attorneys on his staff and the rest of SJC are not saying is that DOJ could prosecute several of these people and no Hatch Act prohibits this.

    They violated the letter of 18USC §1001:

    I already outlined this in detail yesterday but it’s worth to use the Bmaz venacular repeating again since Bmaz is known to repeat for emphasis. Mukasey could have them prosecuted federally and he has elected to let it slide.

    TITLE 18 > PART I > CHAPTER 47 > § 1001Prev | Next § 1001. Statements or entries generally:

    a) Except as otherwise provided in this section, whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully—
    (1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact;
    (2) makes any materially false, fictitious, or fraudulent statement or representation; or
    (3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry;
    shall be fined under this title, imprisoned not more than 5 years or, if the offense involves international or domestic terrorism (as defined in section 2331), imprisoned not more than 8 years, or both. If the matter relates to an offense under chapter 109A, 109B, 110, or 117, or section 1591, then the term of imprisonment imposed under this section shall be not more than 8 years.
    (b) Subsection (a) does not apply to a party to a judicial proceeding, or that party’s counsel, for statements, representations, writings or documents submitted by such party or counsel to a judge or magistrate in that proceeding.
    (c) With respect to any matter within the jurisdiction of the legislative branch, subsection (a) shall apply only to—
    (1) administrative matters, including a claim for payment, a matter related to the procurement of property or services, personnel or employment practices, or support services, or a document required by law, rule, or regulation to be submitted to the Congress or any office or officer within the legislative branch; or
    (2) any investigation or review, conducted pursuant to the authority of any committee, subcommittee, commission or office of the Congress, consistent with applicable rules of the House or Senate.

    This nearly always happens when there is gross misconduct by a member of DOJ. Yeah, they get yelled at like Judge Martini “blistered” Christopher J. Christie the US Attorney in New Jersey yesterday but Christie’s fat ass looks plenty intact to me.

    Christie asked for 20 years incarceration in a cement block cube that is 7′X7′ as punishment for something that wouldn’t have been breach of a law except that the person he helped to a lucrative contract was his girlfriend and they had a sexual relationship. The judge gave Sharp James Mayor Newark 27 months and the girlfriend got 15 months and they will actually serve 85% of their time under a law passed in 1987.

    Former Newark Mayor Is Sentenced to 27 Months

    In rendering the sentence, Judge William J. Martini of United States District Court blistered the prosecution, saying he was “shocked and disappointed” by the sentencing request and questioning the contention that the James administration had been corrupt for years.

    “Don’t talk about a history of corruption unless you can prove it,” Judge Martini, a former Republican congressman, scolded Judith H. Germano, the chief prosecutor in the case. “I don’t want to hear these allegations of a corrupt administration, he’s all-powerful, he didn’t do any good. I’m supposed to throw out the history of a man’s life for misconduct he committed at age 69?”

    Now that we have cell phones in 85% of the US population, it is being documented every day that cops lie and prosecutors lie and they are never prosecuted for purjury.

    The SDNY’s Office of DA Morganthau is declining to prosecute the police officer for explicit eggregious perjury. Welcome to America on the street.

    The Officer, the Bicyclist and the Video

    Police Investigate Officer in Critical Mass Video

    New York Police Often Lie Under Oath, Report Says

  13. MadDog says:

    The fix is in. Nobody is going down. Everybody gets a free pass.

    Sure, there will be some photo-ops with Democratic stern looks, shaking of fingers, and wringing of hands, but everything and everybody has been “taken off the table”.

    The Leadership (Hah!) has spoken and their wish is our command.

    • PetePierce says:

      They get a free pass because Mukasey is a wooden aparichik who would fit well into the current Putin dominated Medvedev government or the Chinese Totalitariangovernment or that of North Korea.

      However they also get a free pass because the vast majority of Democrats are positive wussies afraid to invoke inherent contempt or to forcefully call for Mukasey to have them federaly prosecuted for 18USC 1001 false statements both to Congress and to people from their own agency i.e. DOJ lawyers. See Congressman Conyers, John from the great state of Michigan.

      Conyers, Sánchez Consider Criminal Referral Concerning DoJ Politicization Report

      Time is running out. What’s the bullshit with the considering of a criminal referral? Where’s the balls for inherent contempt of Rove today? Why hasn’t Congress referred a false statement to Congress? Goodling made false statements to her agency and to Congress in violation of 18USC 1001.

      Monica Goodling is a member of the Virginia Bar. It seems pretty obvious that Regents law school lied about their tenure program whcih was a requirement for the ABA to accredit them when they did so the year Goodling matriculated at Regents.

      Some witless statements have shown up including the DOJ saying they decine to comment as to whether they would prosecute Goodling, Williams and Sampson.

      And as TPM (The Pricks Multiply) mucky raker points out they have some answers for Chuckie the Schumer’s question today to Fine about how far this law breaking extended. The reports aren’t all in yet:

      There are still two more uncompleted inspector general reports pending — one about the firing of eight U.S. attorneys and another about political agendas in the department’s Civil Rights Division.

    • bobschacht says:

      “The Leadership (Hah!) has spoken and their wish is our command.”

      Hows about we demand that Speaker Nancy recuse herself from all matters relating to impeachment, because she’s waist deep in the Big Muddy herself?

      Bob in HI

    • PetePierce says:

      Glad Sheldon is brushing up on his federal law; that’s always a good sign in a former US Attorney who always talks tough and then rolled over like the biggest wussie in the Beltway and backed allowing law breaking by the Telcoms, Comcoms, and the Bush administration and voted for the FISA bill and immunity in the end.

  14. 4jkb4ia says:

    Whereas it is doubtful that this year the Rams will attain the coveted status of professional football team.

    • Petrocelli says:

      I’d be happy if Toronto had one professional sports team … the Raptors are close to being one …

      • emptywheel says:

        Speaking of Toronto, btw, I finally got my shiny new RFID track-the-dirty-hippie-everywhere-she-goes passport. So maybe we should revisit the planned EW get-together in the great white north?

        • skdadl says:

          skdadl is always here. But someone needs to be the decider(er) about dates, and I am so bad in that role. Maybe Petrocelli and I should chat again. And I do know a couple of others to be named later. Shame that Ishmael doesn’t live in the centre of the universe. *wink*

          Did you see that the British are going to start finger-printing everyone going through their airports next year? skdadl bursts into chorus of “All of me, why not take all of me?”

        • Petrocelli says:

          Excellent … be warned though, we might not send you back … *g* … which dates are open in your calendar ? Do you still have my e- mail ? Everyone interested should prolly contact me via Facebook, then we can coordinate where we’re going to drink liberally meet. *g*

        • GulfCoastPirate says:

          EW – you are so depressing. Not because of the great work you and others do around here but because I always feel so let down by the Democrats. How can they allow all this to happen and have no response other than wringing their hands?

          Be afraid, be very, very afraid of those RFID systems. I’ve built a couple now for clients in wholesale distribution businesses and the possibilities with those things are endless. When the kind of people who populate this administration get off scot free and spend a few years learning the technology we’re all frakked.

        • pdaly says:

          Keep your passport safe from the kitchen microwave or from unexpected falling hammers or else you might accidentally damage your RFID chip.
          (federal offense if you destroy it on purpose–but you cannot be prosecuted if it was an accident, just like torture is only torture if one meant to do it)

          My passport is up for renewal in a few years. Wondering if anyone here has investigated the use of ‘Faraday cage’ passport holders to block the transmission of the embedded RFID chip to RFID scanners.

          Since credit careds (Chase is one) are including embedding RFID chips too, our wallets are in need of Faraday cage type protection, too.

    • emptywheel says:

      Dunno. Did you see that Rush Limbaugh said he’d buy them if they came on the market?

      Think of the great drugs they’d have, and the, um, enhanced performance an owner like Rush could bring.

        • jvass says:

          He’d also blame all the blacks on the team. He’d say “they’re overrated, just like I thought Donovan McNabb was.”

          • emptywheel says:

            Actually, my first thought was that he’d return to the day of all-white sports teams.

            And lose miserably.

            But look on the bright side. He’d make Jerry Jones look positively enlightened by comparison.

            • jvass says:

              You’re assuming he could find enough white guys to field a team. Slim pickins!
              BTW, just wanted to mention I just logged in and these were my first posts. I really enjoy reading your posts and I sincerely thank you for your continual doggedness on so many issues. Please keep doing it!

              I saw that you played Ultimate. I’ve been playing for 25 years and it’s about time to hang it up. A young man’s game… Anyway, thanks again and take care!

            • jvass says:

              Well, not officially, but soon enough. Yep, a great player. Maybe even Rush could figure that out.

      • 4jkb4ia says:

        No, I didn’t! This is a perfect reason for Roger Goodell never to approve the sale if there are other Missouri offers. (That they would be a playing political ad would be another reason.)

        Ivan Rodriguez to Evil Empire. Sigh.

  15. Fern says:

    Is there not some kind of human rights/employment standards that could be used to charge someone like Goodling? Or maybe be the basis for a civil suit by individuals who were inappropriately screened out?

    Because they violated every principle of HR practice in terms of appropriate and legal selection processes.

  16. PetePierce says:

    One of the kingpins of the Goodling/Sampson/Williams conspiracy engine was held in contempt this morning by HJC. How long will it take Conyers to realize that if Congress ratifies the committee vote he needs to go for inherent contempt two words that seem to scare the bejeezus out of Conyers, Waxman, and Leahy.

    Democrats Call for Contempt Charges Against Rove

    While the House passed legislation to ban lead in toys today, it’s far more important that the House and the Senate pass legislation to ban lead in Congress’ ass.

  17. PetePierce says:

    The kabuki rolls on in Missisippi:

    HATTIESBURG, Miss. — On the same day that Green Bay Packers CEO Mark Murphy traveled to Mississippi to meet with quarterback Brett Favre, NFL commissioner Roger Goodell said he will not yet act on Favre’s request to be removed from the retirement list.

    “The commissioner is taking no action today,” league spokesman Greg Aiello said. “He wants to give both the Packers and Brett an appropriate amount of time to make decisions, including decisions impacting the team’s roster and salary cap.”

    Favre left the meeting, at which Murphy talked with the quarterback and his agent, Bus Cook, at about 2:30 p.m. ET. Murphy and Cook remained behind closed doors after Favre left.

  18. emptywheel says:

    Welcome!

    Yeah, I had to hang up the cleats some time ago–my last tournie was a year ago June, but even then I was mostly on the drinking team. I was quite flattered over the weekend, though, when I was watching the Motown Showdown (where mr. emptywheel’s team won the Mixed division). Someone from a team I was scouting asked my why I had taken my cleats off already.

    So I still LOOK like I could play, so long as you don’t look at my vertebrae.

    • jvass says:

      So I still LOOK like I could play

      Umm, I can’t say that any more…. Actually we’re having our summer league finals this weekend, and I am hoping for one last hurrah. Followed by numerous beers.

  19. Leen says:

    Seems like many of the EW regulars seem to think that nothing will come of the IG’s report.

    I know I am walking amongst some legal professionals here but why did I get the sense that Fine meant business?

    Whitehouse will be sure to keep pushing.

  20. Hmmm says:

    “No Consequences” is a pretty depressing prospect. What about this idea of the new law that would allow Congress to refer a matter to a Judge who could appoint a Special Prosecutor? Anyone have hopes for that as an avenue?

    • bmaz says:

      No. In the first place, the law will never pass with this Congress (at least the Senate) nor would Bush ever sign it; but, even if it did, the law as contemplated would not apply to incidents/cases occurring before it’s passage.

      • Hmmm says:

        Thanks, bmaz. But why would the SP scope be limited to new offenses? The new law would only grant the Judiciary the power to set up the SP, whereas the offenses that the SP would investigate and prosecute were already on the books at the time they occurred.

          • bmaz says:

            I would note that there are all kinds of structural/procedural problems that would make it difficult to use against an unwilling DOJ (i.e. one like Mukasey’s that will not prosecute it’s own misdeeds) even if the law were passed and were available to cover prior acts.

            • PetePierce says:

              There is law that can prosecute Goodling and people attached to her and it is 18USC 1001 plain as day and it includes statements made to Congress and statements made to attorneys in her own agency DOJ. It is viable and Mukasey and his OLC and EOUSA are declining to use it.

              Let’s look at McDade and how it was quietly revised by the Patriot Act in 2001 when it was revisited and has not been revised since because DOJ doesn’t want it revised.

              As a practical matter despite the last update of the McDade code section on December 18, 2001 where DOJ thought until they were trumped at the last minute that they would scuttle being subject to state bar discipline, although the US code remains, state bars ignore it uniformly.

              Prosecutions of DOJsters are extremely rare, and there is more likelihood that Britney Spears or Paris Hilton who have been worked into your Senator’s commercial to be President will be elected in November.

              Once in a while DOJ gets out of the way and allows prosecution to happen usually on a state level and rarely on a federal level when they deem the crime to be egregious–i.e the US Attorney David Atchison, who recently hung himself while in BOP custody in Milan, Michigan while awaiting for trial on sexual predator charges. He had attempted suicide before, but talked the BOP into removing his suicide watch while in admin seg so he could successfully commit suicide.

              In 1998 the McDade law was passed which for the first time made DOJsters and in fact all attorneys in the employ of your government subject to State Bar disciplinary rules and procedures. It has a neighborhood in the US Code, and that neighborhood was 28USC§530(B).

              The DOJ furiously tried to trash it and repeal it by buring it in the so-called Patriot Act in December 2001 but this was defeated in SJC at the last moment.

              TITLE 28 > PART II > CHAPTER 31 > § 530BPrev | Next § 530B. Ethical standards for attorneys for the Government

              (a) An attorney for the Government shall be subject to State laws and rules, and local Federal court rules, governing attorneys in each State where such attorney engages in that attorney’s duties, to the same extent and in the same manner as other attorneys in that State.
              (b) The Attorney General shall make and amend rules of the Department of Justice to assure compliance with this section.
              (c) As used in this section, the term “attorney for the Government” includes any attorney described in section 77.2(a) of part 77 of title 28 of the Code of Federal Regulations and also includes any independent counsel, or employee of such a counsel, appointed under chapter 40.


              cDade Takes Effect Mandating DOJsters Subject to State Bar Rules instead of Immune

              History of Efforts to Revisit/Repeal McDade Harvard Legislative Review

              Again if you want to teach your children how to be immune from prosecution, have them become DOJ employees before they commit their crimes and have them commit their crimes while in the employ of DOJ.

          • Hmmm says:

            Well, if this is a dead end, and DoJ enforcement of Congressional subpoenas is out, and DoJ prosecution is a dead end per the IG report, and a Congressional resolution condemning the wrongdoers is weak tea, and impeachment of AGAG and MikeyM is off the table, and we don’t have any whistleblowers waiting in the wings… well then, what further avenues of redress remain available?

            In other words, why bother continuing to do the analysis we do here if nothing is ever going to happen as a result?

            • PetePierce says:

              Well, if this is a dead end, and DoJ enforcement of Congressional subpoenas is out, and DoJ prosecution is a dead end per the IG report, and a Congressional resolution condemning the wrongdoers is weak tea, and impeachment of AGAG and MikeyM is off the table, and we don’t have any whistleblowers waiting in the wings… well then, what further avenues of redress remain available?

              In other words, why bother continuing to do the analysis we do here if nothing is ever going to happen as a result?

              1) It strengthens your google abilities.

              2) It increases your knowledge of federal law.

              3) It keeps you on your toes intellectually?

              4) It distinguishes you from Joe Six Pack that a $200 million dollar candidate in the democratic party–a very rich lady whose name escapes me stood up in the back of a pickup truck to target in Pennsylvania and West Virginia and Kentucky, and John McCain is now targeting with his insipid commercials and statements that are entirely focused on attacking Obama and not talking about the issues that he doesn’t understand. However, you won’t have to listen to him for a long time or see much of him on your tube after November 2 so let the old man have his go negative fun.

              McCain has hired the same Bush people who attacked him as the father of an illegitimate child, made worse because they accused him of fathering an illegitimate black child like Strom Thurmond did when he actually adopted a child from Bangladesh. It’s kind of a variation on the aphormism “the enemy of my enemy is my friend.” Now the enemy former enemy of McCain who destroyed him is his friend and he wants to destroy Obama with them.

              5) It allows you to think about how the US government was when your grandfather was growing up wherever that may be if there were consequences for this government’s actions or if they had any regard for you as a consequence for their actions.

            • bmaz says:

              Because you never give an inch, never surrender, and always make a record. Acquiescence is acceptance; I don’t accept what has gone on. I also think there are viable avenues for criminal prosecution under perjury, false statements and/or criminal conspiracy depending on the putative defendant.

    • bobschacht says:

      Well, there used to be a Special Prosecutor law, but unfortunately under the Republicans, Kenneth Starr (may his name live in infamy) so abused this statute against Bill Clinton that when the law expired, no one had the stomach to renew it.

      In hindsight, that amounts to a tremendous victory for the Republicans. If the current Congress had that law at its disposal, we might currently have a Special Prosecutor, independent of the Justice Department, digging up the dirt on the Bush administration and indicting people right and left.

      I think what needs to happen is that under President Obama, this statute needs to be revised, but altered slightly to prevent its perversion as happened under Kenneth Starr. Something like it is badly needed.

      Bob in HI

  21. Leen says:

    Fine seemed rather protective of Alberto Gonzales. He kept repeating that gonzales did not know what Goodling was up to. So if anything does happen will the underlings take the fall like in so many other situations?

    • skdadl says:

      That’s still my question too, Leen. Like you, I watched, and I was moderately impressed by Fine but bothered by the senators, who didn’t seem to have any notion of where to go next. Maybe that was just because the session was so abbreviated, or maybe this was just a formal acknowledgement of the report’s appearance. I’m not one of the legal folks, so what do I know, but it felt like that.

      • bmaz says:

        Why so impressed with Fine? He says how bad things are, but then casually and blithely shrugs off even the mention of referral for criminal prosecution. He could at least make the referral. I fail to see what respect he earns in light of that fact.

        Leen @66,67- What the hell is John Dean going to do? He has no specific knowledge of these facts. Should we, just like the Goopers do with that toady David Rivkin, just invite him to every one of these hearings? Is he going to help us all out by rationalizing the lack of action like he did in FISA? Is he going to feed us some more magical Obama/Olbermann horse manure about how Obama will make it all okay later? What’s Dean going to accomplish? Should we invite Bugliosi to come add to the sideshow again too?

        • Leen says:

          did you read the Dean piece? I bet he has more of an insiders view than you do? Or am I wrong?

          • bmaz says:

            My apologies; I thought you were referring to the hearing in the SJC today with Fine, and I think my pointed questions would be quite appropriate if that was the issue. I do think Dean would have been very appropriate for the “Not Impeachment Hearing” last Friday.

            • Leen says:

              I was referring to the HJC hearings, apology accepted. I appreciate your perspective and legal insights and it is so discouraging when folks like Dean and Obama roll over to the powers that be (FISA)

              If Obama does not get it that what the American people are hungry for is witnessing ACCOUNTABILITY, then he stands a good chance of losing. He is not on this wave due to his own actions or stances in the past (a fence sitter at best). He is one this wave because of the frustration and anger that people feel towards the Bush administrations and their horrendous crimes. His team has been incredible at harnessing some of these frustrated voters but there are still plenty of voters out there who have questions about Obama. The only way to harness these folks is to talk about ACCOUNTABILITY not “moving on” “turning the page” “let by gones be by gones”. This is not going to work.

              Most of us are brought up to believe that we will be held accountable for our wrong doings, and hopefully the punishment is proportionate to the wrong doing. When thugs like the Bushies get away with horrendous crimes the message is clear as [email protected] 101 pointed out “it’s only illegal if you do it. If they do it it’s heroic”

        • skdadl says:

          Well, I didn’t say I was so impressed; I said I was moderately impressed. It seems to me the job of the senators, who treated Fine most respectfully, to make him break a sweat if that’s needed, and it is, and they didn’t. That’s what I thought while I was watching and what I was trying to say above.

          I was more puzzled by how easily the senators accepted his answers — we’re going this far and no further — than by Fine’s show of competence but no more. You know worlds better than I whether referrals should have been made, but notice that even Whitehouse, at the end of that exchange, where he gets Fine to admit that they’re not making referrals, just says ok. (The senators were all clearly in a hurry, it should be noted.) And the stripping is a good idea, which Fine says he’ll think about, but how will that be followed up?

          To me, though, just convicting the underbadlings would still leave the impression that these people came out of nowhere and did all these bad things on their own. And that topic barely got touched at the beginning of the hearing.

  22. jvass says:

    I feel there will be no Congressional action (sigh, and gag), but Goodling and Sampson will probably be disbarred. It is also (very) small comfort to know Goodling is a total laughingstock and we won’t see her again in gov’t.

    • bmaz says:

      Unless Goodling or Sampson is convicted of a crime, I see no reason to believe that they will be disbarred. It is certainly possible, but I don’t think the odds are that great.

  23. Leen says:

    EW/all have you read John Deans latest. He seems to be focused on lack of consequences too.

    http://writ.news.findlaw.com/dean/20080725.html

    Congressman Kucinich’s Impeachment Resolution, the Parallel to Nixon, and Why Even Nixon’s Defenders Finally Abandoned Him
    By JOHN W. DEAN
    Friday, Jul. 25, 2008

    ### I have been saying for several years that if the Republicans actually started demanding ACCOUNTABILITY = Impeachment they would trump Pelosi and Reid and move closer to winning the fall election. I firmly believe they could use this as a trump card. Now we all ready know from recent history what gets the Republicans impeachment juices flowing. Obviously if they took on the ACCOUNTABILITY cry now they would be doing it for election purposes. It would not have anything to do with demanding justice for those who have lost their lives or been injured as a direct consequence of an intelligence snowjob, else they would have all ready demanded Accountability. It would have to do with their need to flip some votes and I think a stance like this would turn some voters heads

  24. YYSyd says:

    The only lasting effect of this would probably be that no person with the first name Monica will ever be hired again in the White House or the Old Executive Building.
    That’s great.

  25. DefendOurConstitution says:

    Let me get this straight, if I break the law and then quit the job I was doing while breaking the law, I am no longer liable for prosecution for the laws I broke?

    It’s pretty simple and none of the millionaire orator Senators could ask the very simple question! WTF?

    • DefendOurConstitution says:

      To spell it out a little better: I mean, this dude’s right that DOJ has no more recourse as employer of these criminals, but DOJ still has the obligation as the enforcer of the Country’s laws.

      Martha Stewart sure didn’t get away this easy, but she did donate to Democrats.

  26. BayStateLibrul says:

    September, fucking September…
    Pelosi will take up the Rove matter in September…
    WTF is wrong with her?
    I want Barney Frank.
    I’m ashamed to be a Dem.

  27. JohnLopresti says:

    I wonder if the timing of the Fine publication, equal weight of OPR, relates to the unanimous consent vote in the senate on the neoMuscular IG law with the DOJ exception amendment incorporated by Sen.Kyl recently passed, or whether sufficient time and concern are present with respect to the lower chamber that the overhaul could be better than the pending version. I.e., whether it would be worthwhile delaying to see if a different distribution in congress and the executive early in 2009 could be an opportunity to assure the strengthening includes DOJ.

  28. Hmmm says:

    So what we need to break the accountability logjam would be… what, exactly? New information from a person who’s been on the inside and is willing to testify? Would that be the D’s October Surprise? I had expected a whole cavalcade of whistleblowers by now. That no major ones have materialized is curious indeed.

  29. masaccio says:

    This is from the OIG report, 31-2/146:

    In her written statement to Congress in May 2007, Goodling discussed her role in processing waiver requests while at EOUSA and why she continued that practice when she moved to the OAG:

    I reviewed a number of . . . waiver requests during my tenure in EOUSA and the Attorney General’s office. While in EOUSA, I referred significant waiver requests to [OAG Chief of Staff] Sampson. When I moved to the Office of the Attorney General, my position in EOUSA was left vacant, so I continued to oversee these waiver requests.

    We believe that several of Goodling’s assertions in this written statement were inaccurate.

    But providing “inaccurate” written statements to Congress isn’t the same as lying to Congress. How?

    • PetePierce says:

      Yo masaccio. I’ve read every retrospective study of the results of OIG and OPR investigations at DOJ that have been conveniently included in the Supreme Court Reporter.

      The most dire consequence in a small fraction of 1% of cases is that they are asked to leave the DOJ. Although 28USC 530(B) was passed 12/18/2001 as part of the so-called Patriot Act and DOJ was promised it would be scuttled by SJC and the Senate, it was retained.

      However, it is ignored by all State Bar associations.

      So unless they are convicted as sexual predators, no one shows an interest in prosecuting a DOJster for anything nor do they.

      Again the worst consequence is they are asked to leave DOJ and obviously many of them who helped Barbara Comstock and Rove and Miers carry out their hijacking have been promoted just as the Marcy pointed out the schmucks and schmuckesses (that’d be a female schmuck) at DOJ were promoted for spreading the lesbian rumors Marcy blogged on a couple days ago that occured with Chia/Hagen in Michigan.

      The same thing is occuring here.

      And remember, Monica said she “didn’t mean to do it” so you could try that by robbing the Third National bank on West End or 21st in Nashville.

      I have a puppy who has a better vocabulary than Monica Goodling. If you’re stupid, DOJ wants you not to prosecute, but to employ and promote and nurture. Welcome to DOJ.

  30. masaccio says:

    The next three paragraphs explain why Goodling’s statements were “inaccurate”. They do seem to support the conclusion that Monica committed inaccuracies.

  31. Hmmm says:

    Thanks Pete, thanks bmaz. Feeling better about myself is not my goal, Pete, seeing justice done through the law is what I’m after. Bmaz, I’m with you when you talk about criminal prosecutions, but what do you mean exactly? Won’t the Obama DoJ be operating under “we’ve moved past all that” marching orders? Or are you thinking of other jurisdictions (states, international, military, etc.)?

    • bmaz says:

      Won’t the Obama DoJ be operating under “we’ve moved past all that” marching orders? Or are you thinking of other jurisdictions (states, international, military, etc.)?

      Well, good question I guess. Initially, my real point was simply that Fine was being disingenuous when he indicated that there were no criminal avenues possible; there are. That said, I wasn’t necessarily commenting on who would bring those charges. It would have to be the DOJ ultimately, the other jurisdictions you mention would not have, you know, jurisdiction. But if the IG made a referral, that would be pretty powerful, but Fine has indicated that is not in the cards. However, the SJC (or HJC I suppose) sure could make a criminal referral; also pretty powerful. Hey, if they Congress can make an effective referral on freaking Roger Clemens, why can they not make one on Goodling, Sampson, Nowacki, Gonzales, et al.? No reason they can’t, and they should. Even if it doesn’t get done under the current DOJ, to the extent that it is still with in the statute of limitations, might even still be pretty powerful under an Obama administration. Also adds another turd on the pile to maybe move the HJC/House to impeach Mukasey (again, not likely, but you have to keep working it).

      • PetePierce says:

        Absolutely on target as to avenues. But…

        I’ve watched Glenn Fine’s investigations over the years since he got there fairly closely and OPR’s as well, and he/they simply walk on egg shells. He seems to want not to offend or cause trouble for anyone or anything he investigates which raises the question as to why?

        Fine is nominated by the President and confirmed by the Senate. I don’t know what the inernal politics are, and who can push on him at DOJ. I presume since Mukasey/Gonzales/Ashcroft were running interference for Bush et. al. that if they wanted Bus to fire him they could make it happen quickly ( or *g* Monica ditz brain fake law school might have or hell Comstock her mentor (hey if she had any legal experience whatsoever I wouldn’t be a snob about Regent but we all know she had none and they seem to spend more time on prayer than anything that has to do with legal training).

        This month’s Esquire had an article about Fine I noticed and it’s no news/puff piece for the naive.

        Society: Glenn Fine

        Superficially while Fine has undertaken investigations in “sensitive areas” that needed to be done he simply doesn’t execute. He makes no recommendations and he doesn’t refer–he doesn’t urge congress to refer to DOJ for prosecution–and he comes across to me as a quintissential milque toast or wussie.

        TPM muck mentioned two more Fine investigations pending but so what?

        I also noticed that (no surprise here) that DOJ filed a brief with the FISC yesterday requesting that

        any review of the new warrantless surveillance law be kept secret and that the court refuse to accept legal briefs from anyone other than the Justice Department itself. The government is responding to a motion the American Civil Liberties Union filed earlier this month asking the FISC to ensure that any proceedings relating to the scope, meaning or constitutionality of the FISA Amendments Act (FAA) be open to the public to the extent possible. In a separate legal challenge in the U.S. District Court for the Southern District of New York, the ACLU seeks a court ruling declaring that the FAA is unconstitutional and ordering its immediate and permanent halt. Plaintiffs in the case include Amnesty International USA, Human Rights Watch, the Nation and PEN American Center.

        Justice Department Asks Intelligence Court To Review New Wiretapping Law In Secret (7/30/2008)

        And we already know that ACLU has filed a challenge to FAA (not the airplane fuckups) who have had several near collisons on large city runways or in the approach areas when planes are getting ready to turn final or request a straight in.

        ACLU’s FAA Challenge in SDNY

  32. PetePierce says:

    I’d like to suggest that if there is an award for Congressional Moron of the Decade it go to Nancy Pelosi.

    Just when you think she couldn’t be more stupid she tries to help the Republcans run out the Rove clock.

    If you’re from California and you can’t come up with someone better to replace her, and Cindy Sheehan is fine with me, give it up. Forget government because you sent us a moron who has helped Bush destroy this country–a superficial gossip girl who never leaves home without $5000 on her body drunk on power and using it to run her country and her party further into the ground–and yours too.

  33. plunger says:

    Welcome to Karl Rove’s “Discernible Reality.” What once was known to be illegal, now warrants the Medal Of Freedom.

    Are you aware that in the aftermath of his proclaimed role in the outing of Valerie Plame (which I actually question – as he was simply covering for Rove), Richard Armitage was subsequently Knighted by the Crown?

    Think BP’s profits since the invasion of Iraq and the advancement of the Bank Of England’s globalist objectives have anything to do with that?

    http://www.btcnews.com/btcnews/1294

    Mel Sembler must be in line for Sainthood. As Ambassador to Italy, he enabled Ledeen’s planting of the Niger Yellowcake Forgery, then this staunch Republican hosted a fundraiser for none other than Joe Lieberman, and to top it all off – headed=up the Scooter Libby Legal Defense Fund – earning himself a place in Neocon/AIPAC heaven.

    It’s only illegal if you do it. If they do it – it’s heroic.

    • skdadl says:

      Hmmn. I didn’t know that. I think this merits a stiff note to teh queen.

      (And what is a “good American” doing accepting royal honours anyway? Canadians aren’t supposed to do that — at least we’re not allowed to take titles any more — see Conrad Black.)

  34. Leen says:

    And to think some of us put thousands (literally) of hours in to get the Democrats control of the House (Zack Space Oh) and Senate (Sherrod Brown) And Pelosi immediately took Accountability (impeachment) off the table.

    Would love to watch California Democrats throw Pelosi and Feinstein (is she up) off the bus. They could run as Republicans

  35. BayStateLibrul says:

    Summary of dynamic inaction or kicking the corruption the can down the Potomac.

    (1)Miers & Bolton lawsuit — In Bates’s hands… will be issued in
    early August — probably will be appealed? Final Decision — whenever
    (2)Rove subpoena issue — Nancy will decide in September
    (3)Waxman issue on Cheney’s discussion with Fitzy — On hold
    (4)IG Report on Gonzo and the 8 Barristers — Working feverishly…
    cannot give a date….
    (5)Missing e-mails…According to RAW, “Tuesday, after concluding that some White House e-mails have not been properly preserved on back-up tapes, U.S. District Court Judge John M. Facciola ordered the Bush administration to locate the missing communications on portable devices and individual workstations.” WH looking?

    Time warping

  36. Leen says:

    How can she have regrets she has no conscience. This woman is drowning in blood and could care less.

    Just what our nation needs to have journalist like Bob Novak and Judy Miller given even more protection for undermining U.S. national Security

    Justice Department asks court to keep wiretapping challenges secret
    John Byrne
    Published: Wednesday July 30, 2008

    “This bill has quite literally no public value for citizens or civil liberties,” constitutional law scholar Jonathan Turley said earlier this year. “It is reverse engineering, though the type of thing the Bush Administration’s famous for, and now the Democrats are doing–that is, to change the law to conform to past conduct.

    “It’s what any criminal would love to do,” Turley added. “You rob a bank, go to the legislature, and change the law to say that robbing banks is lawful.”

    http://rawstory.com/news/2008/….._0730.html

    ##Jonathon Turley nails it

    • pdaly says:

      If ‘might makes right’ returns as the law of the land, rich people and rich corporations would make out just fine:
      feudalism reborn with private armies and private mercenaries to protect the fiefdom. Serfs to till the land in exchange for protection.

  37. Leen says:

    Juan Cole’s latest

    Why Bush folded on Iran

    Reality, of the military and petroleum-based variety, forced the administration to change course. Now Bush sounds like Obama.

    “It was just a year ago that war with Iran seemed imminent. Last August David Wurmser, a major neoconservative figure who had just left Cheney’s staff revealed that the vice president was talking about having Israel hit Iran’s nuclear research facilities. At the same time, Afghanistan expert Barnett Rubin went public with what he was told by a Bush administration insider — that Cheney would make a big push for a strike on Iran in the fall of 2007. Journalist Seymour Hersh reported that Cheney was attempting to reconfigure the Iraq war as a struggle with Iran. And, indeed, Cheney did make threats against Iran at institutions of the Israel lobby such as the Washington Institute for Near East Policy.”

    By Juan Cole
    http://www.salon.com/opinion/f…..index.html

  38. Leen says:

    Scott Ritters latest on Iran (he lines up more with Seymour Hersh)

    Acts of War

    By Scott Ritter

    29/07/08 ” TruthDig” — – -The war between the United States and Iran is on. American taxpayer dollars are being used, with the permission of Congress, to fund activities which result in Iranians being killed and wounded, and Iranian property destroyed. This wanton violation of a nation’s sovereignty would not be tolerated if the tables were turned and Americans were being subjected to Iranian-funded covert actions which took the lives of Americans, on American soil, and destroyed American property and livelihood. Many Americans remain unaware of what is transpiring abroad in their name. Many of those who are cognizant of these activities are supportive of them, an outgrowth of misguided sentiment which holds Iran accountable for a list of grievances used by the U.S. government to justify the ongoing global war on terror. Iran, we are told, is not just a nation pursuing nuclear weapons, but is the largest state sponsor of terror in the world today.

    http://www.informationclearing…..e20377.htm

    ## I am asking the folks at Firedoglake to invite Scott Ritter and Juan Cole to discuss the push by the Iraqi warmongers push for a military confrontation with Iran. If you think this is a good idea please chime in

  39. Mary says:

    If Congress was really out for blood on accountability, they would have handled their own investigations very differently. Between the inane questioning formats, lack of use of committee lawyers in recorded sessions for the questioing, immunity grants, and overall fluff approach they made it clear that they had absolutely no intention of actually following through on THEIR duties re: impeachment of malfeasors, to actually keep them out of office. It’s really nice playacting to now be able to splutter at Fine over there being no consequences.

    They have a very good and unique opportunity when the Plame leak came out to get legislation back on the books for an independent counsel approach, but they didn’t take it. Instead Schumer sold Comey’s “let’s inhouse it” approach and when the inhouse appointment immediately revealed that he would not be making any reports to Congress, they sat silent.

    With everything that has come out and with the completely irresponsible, bored dilletante approach of the IG and OPR offices for over a half decade when the scandal began to surface, Congress sat back and did nothing. They need the red hair and big shoes to go along with the painted on raised eyebrows and O shaped red lips.

    The first round of accountability is Congressional accountability. If they aren’t willing to do their job, to impeach every actor so that there is a Constitutional bar (and not just and IG tsk tsk) to future gov service, then the feigned disgust with DOJ’s internal coverups doesn’t sell well.

    60 et seq I don’t know what the new proposals are, but would doubt that they are serious with this Congress and these Republicans and Democrats. Under the old indep counsel approach, absolutely the counsel could go after whatever they wanted, past or present. They were not limited to a narrow mandate, although initially appointed for a matter they could go where things took them. Unfortunately, they could go so far and it was so hard to get them removed that things like deliberate and knowing violation of state taping laws didn’t even get them jerked or even disciplined.

    As I understand the workings (and this isn’t certified) under the outside special prosecutor regulations promulgated by DOJ (and which can be changed by them pretty much at will, since they are only regs) the prosecutor is appointed for fairly set mandate only, and appointed by the AG – not the courts or any independent entity or individual. So they can pick to meet a predetermined outcome with no problem. The outside special prosecutor could open up the field of what they went after if they felt that the evidence was taking them other places and they were set up to be able to make reports to Congress. However, the outside special prosecutor had to run things by the AG if they branched out. The AG could shut them down cold if he so chose. So he could prevent the Special Prosecutor from branching out or indicting etc. If the AG overruled the Special Prosecutor, however, the AG was required to go and advise Congress that he had done that and the Spec Prosec could make their own case with their report to Congress. Then Congress could exercise some kind of oversight and demand appointment of someone to investigate what the AG shut down, but unless the AG moved off center, they would have to resort to legislation to actually get someone else. At least, though, the Spec Pros could put on his/her own pressure and inform Congress of findings.

    What was done with the Plame leak was an inhouse appointment, not even an outside Special Prosecutor, so it was a very limited mandate subject to control and override from the [acting]AG’s office and that is pretty much what has happened with Mukasey’s appointment now too. No one in house has the right to go to Congress with their disputes and arguments about what the AG overrules and they are subject to the chain of command and, as Fitzgerald pointed out in his letter, to having their delegation of authority and mandate changed at any time and at the will and whim of the supervising AG.

    Congress hasn’t paid any attention to any of that, though, and is happy to go along with a totally ineffective system that is all about allowing political appointees to run amok and each protect the other. In other departments that would be bad enough, in DOJ it is devastating to the nation as a whole. But it’s all about the covering for each other. Comey will file affidavits to cover for Thompson and Ashcroft in Arar’s case and make nice over Biskupic in testimony and extol the virtues of the FBI interrogations that coerced false confessions in Higazy and smile reassuringly over the torturebased absolute isolation and abuse of Padilla without charges — for years.

    OLC will write opinions that say anything. AG will set up cya “investigations” and Dems in Congress will make sure nothing gets done so that they can have their chance at a few years of manipulating the thoroughly corrupt system and reaping their own benefits.

    I’m guessing Fine didn’t say a whole lot about the delegations to Sampson and Goodling from Gonzales and the extent to which they make the whole thing look like a thought through scheme — didn’t say much about the OLC opinions on the scheme where even the basically useless OLC made concerned noises about how Gonzales couldn’t delegate to the extent he wanted and he had to at least get written info from them and sign off etc.

    It is depressing. When the best that anyone can point to in DOJ is someone like Comey, who has been right there in the whitewashes on Padilla, on Higazy, on Arar and who has tried to cover for Biskupic etc. when that’s what defines “the best” then you just can’t hope for much.

    And the profession has been appalling as well, indicating that it has no interest in or stomach for getting crosswise with Congress and the Executive.

    So you start with a failed Congress and you can’t really help but end up with failures everywhere else – and with failures actually celebrated as success.

    • Hmmm says:

      Thanks much, Mary. It sounds like if the new Article III-appointed SP option were to go through, it would be much more like the outside SP case than the inside SP case, so that’s still something to hope for — though as you say, the likelihood of that getting through this Congress may be small. Though I wonder how the Bates summary judgement on the absolute immunity might affect that — blood in the water, vs. circle the wagons.