Orrin Hatch to Support Holder Yet the Delay and Kabuki Continues

Understand–this report that Orrin Hatch will support Eric Holder is not news.

Sen. Orrin Hatch (Utah), who chaired the panel for a decade beginning in 1995, told The Hill that he will support Holder.

I intend to,” said Hatch.

His decision could undermine GOP efforts to stall or block the confirmation. Senate Republican Leader Mitch McConnell (Ky.) said Friday that Holder would be the only Cabinet nominee to face a tough confirmation fight.

Hatch said that Republicans should try to strike a cooperative tone with President-elect Obama during the first days of his administration.

“I start with the premise that the president deserves the benefit of the doubt. I don’t think politics should be played with the attorney general,” he said.

“I like Barack Obama and want to help him if I can.”

Hatch said he would support Holder way back in November. Which, even though the Senate Judiciary Committee is the committee most unfavorably positioned until the Senate reorganization (unlike SJC, most other committees have lost Republicans but not Democrats, giving us a bigger majority than we had last Congress), still means Holder’s nomination will pass the committee and the full Senate, even if by a one vote margin.

Now, maybe Arlen "Scottish Haggis" Specter will dig up something during Holder’s nomination hearing that will pick off Democratic support; but seeing as how he’s more interested in Elian Gonzales and less interested in Chiquita, I don’t see that happening.

Which means the drama surrounding the Holder nomination from the right is–and has always been–kabuki. 

Kabuki, an attempt to dredge up Republican greatest hits on Clinton, and–I suggest again–delay.

There are a number of reasons why they’d want to delay Holder’s confirmation and not–say–that of Hilda Solis, who will champion the EFCA legislation that will be an early focus in Congress. You see, EFCA will pass or fail regardless of whether Solis has been approved or not. EFCA’s passage comes down to the actions of a few conservative Dems and a few moderate Republicans. Republicans oppose EFCA, but they’re not going to delay or defeat it by delaying Solis’ confirmation.

But there are things that Republicans can delay or prevent by delaying Holder’s confirmation, first and foremost, any legal prosecution of George Bush for reauthorizing warrantless wiretaps over the objections of the acting Attorney General.

As I pointed out, Vaughn Walker has ordered the government to give him a document by next Monday–January 19–that will most likely prove the Bush Administration broke the law. It will likely prove that Bush’s Administration broke the law on February 19 through February 29, March 10, 11 and 25, April 16, May 13, 22 and 26, and June 1, 2 and 10, 2004–all dates when the al-Haramain lawyers, having seen the document that revealed they were wiretapped, believe they were wiretapped. Thus, the statute of limitations for those possible violations of FISA would expire on days from February 19 through June 10, 2009. 

But those are actions done by people at NSA under orders from George Bush. Those aren’t actions done by George Bush himself. 

Except, that is, for the actions George Bush took on March 11, 2004, when he reauthorized the program over Comey’s objections. And the statute of limitations for that probable crime runs out on March 11, 2009: less than two months after Vaughn Walker might get (barring the delays that are almost guaranteed) the document that proves the Administration violated FISA.

bmaz and LHP assure me that that’s already too little time for someone at DOJ to take the evidence and develop it into an indictment strong enough to indict the former President. But I imagine Karl Rove–who, after all, ordered up this kabuki dance in SJC in the first place–doesn’t want to take any chances.

There are a number of other reasons the Republicans would like to delay having an operative DOJ. While DOD can close Gitmo and implement some changes to military commissions, they can only do so much without an Attorney General. And no one could act on the crappy legal opinions–particularly those drafted in March 2004–until  after we get an Attorney General.

Aside from what you think about a Holder confirmation, what is going on now is mostly kabuki–an attempt to score political points, surely, but just as much an attempt to run out the clock. With Hatch’s renewed assurances that he will support Holder, the outcome isn’t really in doubt. 

The timing, though, is. 

  1. SaltinWound says:

    You really think Holder cares about going after Bush? This timing helps Obama, who wants no part of this, as much as it helps Bush. Maybe they’re working on it together, like TARP.

  2. klynn says:

    Actually I have a question for the legals here. Are there possibilities that the delays on handing over any of the documentation that “may”(most likely does) prove the March 11, 2004 illegalities, create an extension on the statute of limitations, especially for that date?

  3. Loo Hoo. says:

    Why couldn’t Obama’s appointments in the Justice Department get right to work on this? And couldn’t he appoint an acting AG until Holder is confirmed?

    • Palli says:

      I can dream too: some dedicated and patriotic laywers at DOJ and ACLU have been secretly working on this indictment… it will be ready before March 11.

  4. oldoilfieldhand says:

    Thanks Marcy. Just knowing that you are watching and listening must make the Republican actors queasy.

  5. WilliamOckham says:

    Not a lawyer, didn’t stay in Holiday Inn Express, and have political views outside the mainstream, but….

    I’m not convinced that 2009 is our last chance to get the Bushies. I think it’ll become clear, if the matter is litigated, that the lawbreaking continued right up to the FISA fight of 2008.

    • bmaz says:

      Agreed, but the sexiest charges, and most heinous of conduct was the earlier stuff. And the stuff in March of 2004 is a particularly soft, white and exposed underbelly. The problem I see is once you are down to the later charges/crimes, as standalones they are much easier to defend and far more difficult to prosecute, especially with the cover the Congress has given them. Reasonable doubt is going to be a bitch on this stuff if you are looking for criminal convictions. That is exacerbated if you get the sexy items split away and are going forward only on more pedestrian stuff. It is possible, I guess to keep it all in on a continuing conspiracy theory; but that is going to require charging the matter literally as an ongoing criminal cabal/conspiracy at the highest level of government. It is going to be damn near impossible to get the Obama administration to charge individual crimes; picturing them charging as a giant ongoing conspiracy seems a pipe dream. The more you have the individual original crimes fall off the radar from statute expiration, the incrementally weaker the whole effort is.

      • emptywheel says:


        Pre-formal congressional buy-off (even with the kabuki meeting on March 10, 2004, which I suspect Gonzales’ notes would not be sufficient to turn into real oversight) is a lot easier to prosecute for any number of reasons.

  6. drational says:

    A statute of limitations will not remove the taint from a high crime and misdemeanor, nor will it prevent an SJC or HJC hearing. It will not prevent an impeachment trial.

    What will prevent these things is Obama, and his stated intention to “move forward”. Unitary executive power is no doubt a hard habit to kick, and I suspect, makes you feel better than Nicorette.

  7. drational says:

    And does anyone here think Orrin Hatch would support Holder if he did not already have assurances that Holder is not going to pursue indictments against the Bush Administration?

    Specter must bark like the toothless chihuahua he is; He never does anything about anything he raises a stink about.

    I think this is Kabuki, but I don’t think it has anything to do with worry about meaningful wiretapping investigations. The Administration, along with the TelCos, has immunity thanks to FISA revision, no?

  8. Mary says:

    bmaz and lhp are right that there’s no time. The only thing I will hold out, though, is that there have been a slew of people who filed FOIA requests to get info on whether they were illegal targets and Gov has withheld a response. For those people, there might be a valid claim to extend the statute for the Gov withholding of evidence of the crime. What that would leave open (and what bmaz has argued is probably covered anyway by agreement) is whether or not the extension for constructive or actual fraud or similar behaviour would also extend the statute vis a vis telecom co-defendants.

    OT – Finally, a service (AP) uses the “i” word. After all this time, and only as Bush is leaving and GITMO is becoming Obama’s problem, and after several years of court rulings, finally the word “innocent” is mentioned in connection with GITMO.


    President-elect Barack Obama’s planned review of Guantanamo Bay prisoners, a prelude to closing the detention center, must weigh the threats posed by an extraordinarily diverse group, from die-hard jihadists to innocent men swept up in war.

    emph added

  9. Mary says:

    9 – Here’s another thought, though. After Judge Diggs-Taylor ruled that at least one part of “teh program” violated the Constitution, I think that ruling (despite the 6th Cir dismissal, NOT on the merits, for lack of standing) makes it pretty darn impossible for anyone involved with the program to claim reasonable reliance on that part of the program’s validity, no matter what Exec orders or OLC opinions were generated. So I think from the date of her opinion forward is also a pretty ripe area.

    • bmaz says:

      I think that is a potentially good argument, assuming it makes it past a motion in limine; however, after that point is also where they had better cover. Excellent point and argument though.