Did Holder Promise No Prosecutions?

As I posted, both Sheldon Whitehouse and Pat Leahy suggest that–even though John Cornyn and others made an inappropriate demand that Holder promise not to prosecute any Bushies–Holder did not make that promise.

But right as that came out, the Moonie Times came out with a Kit Bond interview claiming that Holder had made such promises. (h/t Wigwam)

President Obama’s choice to run the Justice Department has assured senior Republican senators that he won’t prosecute intelligence officers or political appointees who were involved in the Bush administration’s policy of "enhanced interrogations."

Sen. Christopher "Kit" Bond, a Republican from Missouri and the vice chairman of the Senate Select Committee on Intelligence, said in an interview with The Washington Times that he will support Eric H. Holder Jr.’s nomination for Attorney General because Mr. Holder assured him privately that Mr. Obama’s Justice Department will not prosecute former Bush officials involved in the interrogations program.

Mr. Holder’s promise apparently was key to moving his nomination forward. Today, the Senate Judiciary Committee voted 17-2 to favorably recommend Holder for the post. He is likely to be confirmed by the Senate soon.

Sen. Bond also said that Mr. Holder told him in a private meeting Tuesday that he will not strip the telecommunications companies that cooperated with the National Security Agency after the Sept. 11, 2001, attacks of retroactive legal immunity from civil lawsuits–removing another potential sticking point among GOP senators.

In the interview Wednesday, Mr. Bond said, "I made it clear that trying to prosecute political leaders would generate a political firestorm the Obama administration doesn’t need."[my empahsis]

Mind you, I’m not holding my breath for any big prosecutions from the Obama Administration, given his repeated calls to move forward.

That said, I suspect Kit Bond is spinning Holder’s clear statements with regards to those who implemented Bush’s policies into statements about those who crafted Bush’s policies.

Note how Holder answered this question in written RFQs:

Mr. Holder indicated that he would not prosecute any intelligence officers who participated in the interrogation program and who had followed Justice Department guidance.

Prosecutorial and investigative judgments must depend on the facts and no one is above the law, Mr. Holder wrote. But where it is clear that a government agent has acted in ‘reasonable and good faith reliance on Justice Department legal opinions’ authoritatively permitting his conduct, I would find it difficult to justify commencing a full blown criminal investigation, let alone a prosecution.[my empahsis]

Holder gave written assurances about those who relied on John Yoo’s crappy opinions. That’s basically what Arlen Specter said Holder had said in assurances to other Republicans. 

"The gist of" Holder’s stance on the issue, Specter told [TPM’s Elena Schor], "is that if you have an authoritative legal opinion, that’s a defense in terms of mens rea, of intent. That’s a broad generalization. I don’t think you can go any further than that until you examine the specific facts of a case."

But now Kit Bond is out there saying Holder gave him assurances about not just "intelligence officers" (which is what he said in his written response) but "political appointees" and, later, "political leaders."

Now, maybe Holder really did say he wouldn’t go after people like John Yoo and Dick Cheney and others who deliberately violated national and international law. But I think it just as likely (and more typical of Holder’s legalistic style) that Kit Bond is talking out of his ass to pressure Holder to avoid looking into the actions of Bush and Cheney. Hell. Holder hasn’t even been read into the illegal wiretapping program yet. It would be the easiest thing in the world for him to say, "Well, I had no idea that Bush deliberately violated Congress’ law prohibiting any funds from being spent on TIA" if he were to pursue charges.

But if anyone else has any doubts that the Republicans are primarily worried about protecting Bush and Cheney for their law-breaking while President and Vice President, I guess Kit Bond has put that doubt to rest. 

Update: JimWhite had a very productive call with Pat Leahy’s office on this. But since his call with Bond’s office was considerably less productive, I agree with JimWhite that Bond might need to hear from a few more Americans who believe Senate votes should not be premised on promises of non-prosecution. If you’d like to join in, Bond’s office is (202) 224-5721. (Apparently you’re not the only caller trying to give Bond a piece of your mind, so be persistent.)

Also, see Spencer on this as well. 

      • WilliamOckham says:

        I ‘know’ this because it would have been insane for Holder to have done it. First, Holder didn’t need Bond’s vote; he was going to get every Dem vote on the committee plus Spector. Second, if Holder made that promise to Bond, he would have to deny it publicly after the fact. It would have violated a principle that is important to rational, informed people (a group that includes some Republicans, but apparently none on the SJC). Holder needs the support of rational people.

        So, if right-wing nut job Bond tells a newspaper that Holder made that promise, the most likely (as in 99.999% likely) explanation is that Bond is performing a service for pro-torture faction to sow confusion and dissension among the anti-torture faction.

        • itchyfish says:

          Also, Bond reveals this shortly after Specter announces he’s going to support Holder’s confirmation. Is it just me, or does this look like cheesy tag-team wrestling?

        • selise says:

          your logic works if it is only bond and some of the crazy right wingers who want the promise not to prosecute. i’m not convinced that is the case.

          • WilliamOckham says:

            Um, no, you misunderstand me. The pro-torture crowd is using the right-wing nutjobs to run cover for them. There are a lot of people who want the torture issue to go away and therefore like to pretend that the Obama administration agrees with them (the Obama administration might actually agree with them, but we and the pro-torture people don’t really know that). Take a look at Marc Ambinder’s take:

            This is not the same thing as saying that prosecution is off-limits. Indeed, Holder isn’t in office yet; he doesn’t have an active clearance; he doesn’t know the evidence; he doesn’t know what U.S. attorneys may or may not be working on. And he doesn’t know what evidence might out itself in the future. That said, it is indeed the Obama administration’s preference to move forward while looking back — and they’re not going to take any affirmative steps to seek evidence that might implicate high-ranking Bush officials. But the wheels of justice churn without fuel from the White House and the AG.

            Obama officials stress that no decisions have been made.

            Ambinder is a pretty reliable barometer for official Washington, but he’s just reporting the results of the attempt by the indirectly culpable to make this issue go away. At least Ambinder doesn’t wrap his crap in the sanctimony of some Washington pundit scum.

            • bmaz says:

              All I know is this: If you really pay attention to what Obama had definitively said on various subjects, he has stayed pretty true to that in execution. Now, granted, you have to filter out the crap that pundits, stupid reporters, deluded fans, etc. think he said and just pay attention to what he actually did say, but if you do, he tracks that fairly well. The one real exception to that is a bad scene, namely his defection on his promise to fight on FISA. Now, all that said, he has never indicated any desire whatsoever to really pursue accountability on the Bushies, in fact he has quite arguably indicated to the contrary. I believe him on this without evidence to the contrary, and I am not finding any.

              • TheraP says:

                I can’t predict the future, but I do try to read the tea leaves. And here’s what I’m wondering bmaz:

                Why would Obama appoint so many people who had voiced such strong opposition to the bush policies of torture and undermining of the Rule of Law to DoJ and OLC? Why so many strong people who spoke out against the bush policies? If he intends to rein them in. Why frustrate people who feel so passionately, if he’s not going to let them do anything? Why not appoint people who are more docile? That’s where I’m stuck if you’re right that Obama looks likely to just give bushco a pass.

                My tea-leaf reading suggests it makes no sense to employ race horses for a walk.

                • bmaz says:

                  You are projecting what you want to see happen, and not listening to what Obama has said he wants to happen. You assume that because all the types of “racehorses” you see are all critics of the way Bush did things, and had been outspoken as such, that they are for prosecuting and hard accountability of the Bushies. But, if you really reduce their positions down, what they are about is doing and handling things differently than the Bush crew did. I believe that Obama wants to do things differently, and has hired a bunch of folks that can help him do just that. However, that does not also necessarily mean going back and expending the energy, political strife, and time to hold accountable and prosecute the previous criminals. Obama has never given any real indication of a desire to account for the past, only to move forward differently, that is what he wants these horses for. There is a big difference, and you and I should not assume Obama wants the same things we do.

                  • TheraP says:

                    bmaz, I have no quarrel with you. I respect your opinion and all your hard work. I know you’re a lawyer and I’m not. I completely realize I may be looking for clues that fit what I want. What’s wrong with that? Seems to me that Obama needs to figure out a way for Justice to be served while, yes, absolutely, keeping the country on a track toward the future. (But if you disagree, I don’t think we have to quarrel about it. I’ll accept your view for you. And you can do that or not for me – but it won’t dissuade me from what – to me – is a moral duty here.)

                    As to what you wrote @32, your first sentence, to me, conflicts with your last sentence. You want both of us to assume Obama wants the same things we do. But you say I shouldn’t assume (or project as you say) anything. So, if you forgive me, it sounds in a way like you want me to assume what YOU assume. That we all want what Obama wants. I bet as far as long term goals the three of us would agree. So there I’m with you. But as far as how to get there, to those goals, we might differ. So in that sense I can’t assume that the three of us would agree. (I suspect you and I have different views of how to “get there” – and different “projections” about unintended consequences. I’m not as worried about that as you seem to be.)

                    I just want you to know: I respect you, I respect your opinions, but that doesn’t sway me.

                    As far as what Obama will do, the jury is still out!

                    • bmaz says:

                      Should have read should not assume. My bad. I am with you in the hope, but I wouldn’t go to far out on the limb of hope is all I am saying. And I have watched what he does. It has been remarkably consistent with what he said he would do if you really inspect things (the one glaring exception being FISA, and that didn’t work out well). He has never said he was for prosecutions and addressing the past, he has consistently indicated to the contrary. I believe him. Regrettably.

                    • selise says:

                      And I have watched what he does. It has been remarkably consistent with what he said he would do if you really inspect things (the one glaring exception being FISA, and that didn’t work out well).

                      lobbyists in his administration?

                    • TheraP says:

                      Listen, bmaz, if we are together in the hope, I am thrilled! Yes, at my age, after all we’ve been through, I realize we may not get Justice. But I also strongly feel that Obama is the kind of leader who wants the wind at his back. He waits for that. And so I feel it’s my duty to stir up the wind. He’s his own person. And I like that about him. He’s hired very strong people. I like that too. Those people will clearly (I’m thinking OLC) keep him in line in terms of where the boundaries of executive power are (and they know he’s free to disagree as well). I’ve read that long paper by Dawn Johnsen, which describes the role of OLC (as she sees it).

                      And I hope those same people advocate for the Rule of Law (including investigations) as well as the peaceful commons. (But will Justice not continue to cry out – in all sorts of ways? I believe she will – as more comes out.)

                      I salute you, bmaz!

                    • lllphd says:

                      bmaz, a gazillion thanks for getting therap and me in contact. you’re a prince.

                      and i bow to your hope. and your realism. i most often feel we do a lot of wrangling here that defies our consistent positions on what matters. i too am watching obama’s deeds, and as they reflect his words. his words on this very delicate matter of prosecution are careful and do not rule out doing the right thing. to my mind, moving forward may well require we prosecute those who have violated the constitution; this would be an enormous part of the healing prescription. however, i also note that the man must be extremely careful about tipping his hand, as WO put it so well. how would that serve the ultimate goal of actually achieving justice? as far as i can see, it would only make the likes of you and me feel a lot better now. where’s that at?

                      my sense is that you are being way too literal in your watching of him. further back in these comments i opined (rather freely, i admit, but there it is) on how someone in obama’s position might have thought about that fisa decision. it was not trivial to include in the calculus the consequences for media coverage of his campaign. i know that compromising principles is not something you’d ever consider positive, and i applaud you for that, but please also read my brain surgery analogy. you just cannot go into a delicate operation such as this mess we’re facing on every front and expect to achieve maximum success with a flaming bazooka right off the bat.

                      i want this to work. and i’m willing to give him wide berth to achieve it. the second he starts doing things that are irrevocable 180s, ten to one i’ll beat you to the scream fest, and louder and more shrill. but for now, i’m mighty pleased with not only what i’m seeing but what i’m learning. this guy is a master at getting things done while keeping the big picture in mind at all times. a master, i tell you. watch and learn.

                      thanks again, for everything. you’re really a beacon. (just sometimes we need sunglasses out here!)

                    • TheraP says:

                      Great comment. I’m just glad to see those who are for Justice joining forces.

                      Here’s to solidarity in the struggle!

                • lllphd says:

                  ooh, therap, most excellent question, and even better analogy.

                  (akin to my asking PC users why drive a ford when you can drive a rolls.)

                  and bmaz, therap and i are trying to make direct contact, if you and/or marcy are able to accommodate us on that matter. thanks so much.

            • selise says:

              i agreed with your second paragraph in 95. just not so sure about this in the first:

              I ‘know’ this because it would have been insane for Holder to have done it. First, Holder didn’t need Bond’s vote; he was going to get every Dem vote on the committee plus Spector

              would holder have really gotten every dem and spector’s vote if he had (hypothetical of course) said he would investigate and if justified prosecute for torture and violations of geneva conventions? i’m not so sure.

              but imo your larger point stands. or maybe i’m more confused than i though.

              p.s. and thanks for the ambinder link.

              • WilliamOckham says:

                Ah, but that wasn’t the choice. The only rational and legitimate choice for Holder is to finesse the issue by combining the ‘we want to look forward, not backward’ and the ‘no one is above the law’ mantras. No matter whether your plan is to bury the whole thing, go after them like Fitzgerald on Blagojevich, or just play it by ear, there’s no value in tipping your hand.

                • lllphd says:

                  precisely! even better poker metaphor. obama is good at this, and keeping his hand very close to his vest makes so much more sense than announcing that he has all the legal cards he needs to blast all his predecessors outa the room and into the slammer. they’d scatter like bunnies, while the media provided complete cover for them, replete with frothy outrage and rabid indignation. the entire enterprise would be lost. he really needs to woo them all first.

                  in sum, what bmaz and others have suggested obama needs to be doing here, which is voicing loud and clear his principled intention to bring the criminals of the bush administration to justice – and as a top priority – does not make ANY strategic sense. not even elliot ness approached his sweep so boldly.

                  like i say, this calls for finesse, and so far, that is a commodity obama holds in spades. so to speak.

                  • selise says:

                    what it may (or may not) make sense for obama to do is not the same thing as what it makes sense for me, as a citizen and sometimes commenter here, to do.

                    my job is to demand transparency and accountability.

                • selise says:

                  that’s way beyond the scope of my comment which was just a narrow thought on one part of your argument. not sure what i think about the rest….

        • cinnamonape says:

          No Attorney General would ever tell a member of the opposition that he would exclude an individual or class from prosecution for criminal acts. It would be used to destroy him. It would be an automatic disqualification admitting than one would exempt politicians from criminal prosecution to avoid the political fallout that might occur.

          Kit Bond may have said that Obama and Holder might expect this firestorm from Republicans, and Holder might have said “Well that’s something we don’t need right now, and I hope it doesn’t occur.” But that would be a far cry from agreeing with Bond that he would not prosecute. He’s just saying that he hoped that the Republicans would act responsibly in a time of national economic crisis.

          I think Obama is getting a very clear idea just what he can expect…and although he gave the Republicans his hand, they have bitten it.

    • Leen says:

      During the Holder hearing that I was fortunate to attend I recall holder saying when a few of the Republicans tried to get him to say whether he would go after any of the Bush thugs or not. Holder said something like if we find any suspicious actions we will follow where it takes us.

      ew “Kit Bond talking out of his ass to pressure Holder to avoid looking into the actions of Bush and Cheney” Don’t forget about the actions of Rumsfeld,Wolfowitz, Feith etc. Know you have not.

      The American public knows what gets the Republicans Justice juices going. Lies under oath about a bj. But when it comes to torture, false WMD intelligence, a war based on a “pack of lies”, illegal wiretapping…that’s just another day in the Bush administration. No need to wonder why only 10% of the American public has any faith in congress. Twisted priorities.

      transcript for hearing

      Interesting exchanges ( pg 64)
      “FEINSTEIN: One more quick question. And I thank you for that.

      The FBI is in the jurisdiction of this committee as well as the intelligence committee for its work on counterterrorism and intelligence-related activities.

      The Senate Intelligence Committee received last week the answers to questions from one of its open hearings that was held in January of 2007. Now, that’s two years to get a response, and we’ve had to fight to get the response.

      The FBI regularly tells both this committee and the Intelligence Committee that it can’t respond quickly because all information provided to Congress has to be vented through the DOJ, and that causes delays.

      Similarly, the DOJ prevents the FBI from answering questions from Congress on its domestic intelligence and counterterrorism questions.

      Now, we’re not looking to get into the details of an investigation. We are looking to carry out our oversight responsibility. And, therefore, I would like to ask you if you would review this oversight because I think it’s been a way to stymied oversight rather than a prompt, quick review which allows the committees to do their work.

      HOLDER: I’ll commit to doing that. A two-year response is, obviously, unacceptable.”

      another exchange that got to me (page 65)
      “KYL: And you are aware that the Department of Justice, of course, has taken a position in the litigation involving AT&T (NYSE:SBT) (NYSE:T) in support of the liability protections that have been invoked by AT&T?

      HOLDER: Yes. KYL: And it would be quite unusual where constitutional issues are involved for the department just because of a change administration to take a different position.

      HOLDER: Yes, it would certainly not happen as a result of a change in the administration. That would not be a compelling circumstance. And I — if you…

      KYL: I didn’t mean to suggest that either.

      HOLDER: No, no, no. I’m just saying that if you, you know, put me to the task there like, Mr. Holder, tell me what the compelling circumstance might be, I don’t think I could answer that question.

      KYL: I hope you’ll consider this question not out of bounce. We also discussed the speech you made and you talked about activities before the Congress acted. I had one question to ask in that regard, but we hadn’t discussed this.”

      this exchange between Specter and Holder got to me

      “HOLDER: With all due respect, Senator, you’re a good lawyer. I’d like to think of myself as a good lawyer. Good lawyers frequently disagree about these kinds of things.

      I don’t question your integrity. I respect your opinion in the way that I would hope that you would respect mine. It was not done for any reason other than what I would consider a neutral assessment of the material that we had… SPECTER: You are an excellent lawyer, Mr. Holder. If you weren’t such a good lawyer, I wouldn’t be so surprised if you were a poor lawyer, an inexperienced lawyer, not a real professional like you say who doesn’t know any better.

      But my evaluation is that a man in your position knew better. That’s the whole point, but you’ve expressed yourself and I’ve expressed myself.

      HOLDER: Senator, we’re getting close to a line here. I will certainly understand a difference of opinion, but you’re getting close to questioning my integrity and that is not appropriate.

      That’s not fair. That’s not fair, and I will not accept that.

      SPECTER: What’s not fair?

      HOLDER: To suggest that the decision that I made in the case along with Attorney General Reno supported by career lawyers from the Public Integrity Section was anything other than a call on the facts and the law. There was never any attempt on the part of any of those people, those career people — the Attorney General or this Deputy Attorney General to do something that was inappropriate or that favored Vice-President Al Gore.

      That was not the case.

      SPECTER: Well, you’re telling me what you think about it.

      HOLDER: That’s fine.

      SPECTER: And I’m telling you what I think about it.

      HOLDER: That’s fine.

      SPECTER: And when I look at Marc Rich and the circumstances surrounding that, if you have a part of that guy who’s a fugitive with a terrible record and you have Roger Adams calling you at 1 a.m., it looks to me like there’s favoritism to cover for President Clinton.

      And we talked about FALN, that’s inexplicable to me. We went over all the facts as to how you have the professionals opposing clemency, to give you a report, opposed the clemency, then you want them to change their report in order for you to have cover. So I have to make a determination on my vote looking at the totality of your record which, overall, we appreciate.”

      ###I really wish the tougher questions about Holder’s caving in on the Marc Rich pardon would have come from the Democrats. I really want the party that I belong to to play hardball with all contenders for any position.

      • bobschacht says:

        KYL: I hope you’ll consider this question not out of bounce.

        I’m not sure whose transcript this is, but surely the last word was meant to be “bounds,” as in out of bounds, as in foul ball.

        Bob in HI

  1. JimWhite says:

    But I think it just as likely (and more typical of Holder’s legalistic style) that Kit Bond is talking out of his ass to pressure Holder to avoid looking into the actions of Bush and Cheney. Hell. Holder hasn’t even been read into the illegal wiretapping program yet.

    Even if he is lying, doesn’t that disqualify Bond from Senate service? I mean, he is claiming that he got a promise of non-prosecution from Holder in return for a vote. That’s “pay to play” if there ever was an example.

    Anybody else want to join me in getting hung up on by Bond’s office when we ask for his resignation? The number is (202) 224-5721. Keep trying, it’s pretty busy there just now.

    • Peterr says:

      Kit has already said he’s hanging it up in 2010 and not running for reelection.

      Not that it wouldn’t be nice for him to depart the scene a bit early, mind you, but he’s already entered into his time as a lame duck.

    • selise says:

      was on hold for several minutes but finally got through to bond’s office. at first i was told that there was not statement and would not be one because the senator was not planning on addressing the issue. i then pointed out that according to the article, the senator had given an interview to eli lake today and if the senator was willing to speak to a reporter it would be nice if he would also speak to the people via a statement. i was then asked if it was a reliable source and i said i didn’t know and that was why i was calling – to find out. i asked that the senator at least release a statement either confirming or denying the general points of the article and was told my request would be passed along.

      btw, left you a msg in previous thread. thanks.

    • perris says:

      Even if he is lying, doesn’t that disqualify Bond from Senate service? I mean, he is claiming that he got a promise of non-prosecution from Holder in return for a vote.

      great point

      whether lying or not he is disqualified from national security information, he cannot keep a secret

  2. Peterr says:

    You don’t suppose that Kit Bond is a bit concerned about word getting out about his own lack of oversight over (at best) or complicity in (at worst) the actions of the Bush Administration in his work as a member of the Intelligence committee?

    Naw . . .

  3. lllphd says:

    marcy, fwiw, it seems to me that bond is carrying the water for those who are most worried about all this, individually and/or en masse, and that might also include bond’s own complicity in these crimes. in any case, that moonie interview seems expressly designed to corner holder into a he-said/he-said impasse that would serve – presumably – to undercut any investigations or prosecutions.

    reminiscent of the bizarre reasoning behind claiming that joe wilson was invalidated because he was relying on his wife’s apron strings or some such. i mean, what is that? we’ve explored the absurdity of that cover story ad nauseam here, but wrt bond’s claims, it just appears to be a desperate attempt to box him in. exposing all the while just how hung over with power these creeps are; these things worked before, when the country was dutifully petrified of their shadows and crying for blood and bush’s blessing. did he not get the memo? change and all that?

    on obama’s plans to prosecute, or not, i would not rule it out. my take, again fwiw, is that it would be completely inappropriate for a president to make noises of any kind about going after his predecessor, not to mention inflammatory, which is clearly not obama’s style. moreover, the point that whitehouse and leahy made about prosecutors not making judgments without looking at the case files holds here too. i know i know, there’s enough in the public record to hang ‘em all, but obama is nothing if not particular about protocol. having watched this guy for a while, i have to say i would have been completely shocked if he had taken a bold stand on this matter at any point in his campaign; not his style and not prudent.

    that said, i also observe it would seem completely outside his style and his sense of prudence to ignore what truths may surface. my feeling is that he has been quite careful with his wording: the country needs to move forward. he neither commits nor rules out. but moving forward may actually require that we dig very deep to clean out any threats to the integrity of our constitution, of which – as any lawyer knows well – precedent is key. and justice requires that we not ignore such brazen assaults on the core of our democracy.

    somehow i can see this unfolding, albeit slowly, in a way that will not let anyone off the hook. and that includes bond. again, what a stupid, desperate thing for him to do.

    • TheraP says:

      Superlative comment.

      Obama is the Executive. As such his job is not investigation or prosecution. He’s a Constitutional scholar, he’s able to delegate authority, and it’s his job to look forward, set the tone, and he’s already done that – assuring transparency and obeying the law. In addition he’s picked people for DoJ, who have made strong statements, suggesting a necessity to investigate. I’m thinking Dawn Johnsen, the new OLC, Holder, and others.

      Justice cries out: She must be served.

        • LabDancer says:

          I’m afraid I must disagree. His professors at Harvard have characterized him as a scholar then, and I don’t think that stopped. From what I’ve read, in his own books and writings, and also from what I’ve heard from those familiar with his time teaching, he has at least as much of the intellectual and scholar in him that Nixon did, and despise Nixon as he deserves [and I did, and still do], frustrating as it may be to carry in mind, Nixon was both. One of the best things I heard that comforts me on this is from his own mouth, on that radio “interview” [panel discussion with responses to calls phoned in from listeners actually] the great Drudgian wing riffed on as to his ‘re-distributive’ ambitions over the last 4 or 5 days of before the election. Anyone listening to gets more than enough on the depth of thought and analysis he’s put to the relative roles of the 3 branches in shaping social justice, and how he can cite and draft and incorporate & shape into his propositions the right precedents, case law arcs, cultural, political and sociological trends and movements, all of it with a healthy regard and skeptical eye for the strengths and weaknesses of the constitution, the federal papers and the various amendments. What he has is beyond mere literacy, like we’ve had and still get from some Democratic presidents [and IMO no Republicans since Lincoln, when the label had a very different meaning].

          That’s scholarship in my book, tenure-driven publications or not.

          • LabDancer says:

            “and IMO no Republicans since Lincoln” – oop – I mean, except for Nixon, damn his eternal soul.

          • perris says:

            I suppose your point is constitutional “scholar” vs constitutional “lawyer” are mutually exclusive, neither relies much on being the other

            one can be a lawyer, a constitutional scholar yet not a constitutional lawyer, one might not be a lawyer yet can still be a constitutional scholar


            • LabDancer says:

              You’ve lost me.

              He is IN FACT a lawyer, with an established credibility in constitutional law recognized even while in law school, with a special interest in the constitution reflected in his teaching career as as the rock ’round which it was built, and to some extent it was a feature of his brief time in private practice.

              Most lawyers who restrict themselves to practicing in particular areas, constitutional law not excluded, end up operating effectively as indistinguishable from those who pursue a trade. Some lawyers, my impression being in the distinct minority, practice more as if its also a craft. Some lesser number, whilst operating as craftspersons, do so in a manner that reflects their own scholarship, both in what cases they agree to take and how they function in those. Constitutional law practice in particular lends itself to scholarship, at least the appearance, so can give off the impression of being exclusively conducted by scholars. I’ve been there; IMO that’s just not so.

              Where I [think] I demure from bmaz in the notion that the label or the general outlines of the job determines whether one is or is not a scholar in a given area.

              Okay; there’s a lot of semantics at work here, but terms remain important. A person can be a true intellectual without having a great deal of scholarly understanding of the subject. Lots of young musical and science phenoms show that; enthusiasm, intuition [unarticulated or inarticulable connections] and lots of early hard-wiring repetition can overcome that lack. Conversely, lots of scholars lack the capacity to execute on their conclusions in any timely & efficient fashion. But if someone has the full package: is learn-ed as to what’s come before, has organized it in a way that makes sense in action as a reasonable way to pursue one’s goals, and yet can also bring it all home, there’s a tendency to box that person up as one or the other, or one and a bit of the others, but not all three. The phenomenon is rare, but there are persons who are all three; and since history proves at least 3 and perhaps double that have shown up in a tiny pool of 44, this suggests there’s something about the job that tends to increase the possibility each new one is a member of the subset as well.

          • bmaz says:

            He was a part time lecturer; never had more than one class a semester far as I know. For part of the time he was known as a “Senior Lecturer” whatever the hell that is. Lecturers rarely have chairs, although occasionally they do; i have only ever seen that done for Federal Appellate judges (I know one such person well). I am not aware that Obama had anything like this. He was a common section lecturer, he has written no scholarly treatises etc. that I am aware of, and I have paid attention avery time I have seen him speak; his depth of constitutional thought seems rather lacking if you ask me. You are free to differ. I know there was one instance, can’t remember what now, that cried out for mentioning of the type of review that would be applied to a situation. He didn’t come close to really understanding the levels of analysis under the necessary and proper clause in another instance. These stood out to me; in addition, of course, to the fact that he was willing to actively gut the fucking Fourth Amendment. But hey, what do I know; I am sure he is a Constitutional genius. Sure be nice if the guy would show it …..

        • LabDancer says:

          Even the bare facts of “part-time, adjunct lecturer” aren’t accurate. UChi Law specially created a chair for him, as a full-load, on-faculty teacher, albeit with no tenure, publication or administrative demands. These days a lot of top university types have their classes taped for broadcast; too bad that wasn’t in vogue during his time at UChi Law.

          • TheraP says:

            It’s my understanding that on more than one occasion U of Chicago offered Obama a tenured position if he would sign on with them. They were that impressed. And yes, scholarship, in the broadest sense, the old-fashioned sense, is one’s breadth and depth of learning and thinking, not one’s list of academic publications.

      • lllphd says:

        wow, so good to see you back here; been a while. of course, i’ve had a huge gap of absence, myself. swung thru DC for the inauguration; inspiring (so sorry to hear of marcy’s bad luck on that, tho).

        thanks for the comment. the more i think on these things that we hold so dear, the more i realize obama is toast if he comes out with all guns a’blazin’. one step at a time, bring folks on board, create a unified country, we’re all in this together, and then oh, by the way, there’s this perhaps forgotten matter that is nonetheless crucial to our democracy….

        and someone else has to bring it to his attention. he really canNOT spearhead this thing. he is in such a delicate position, he’s obliged to pick and choose his battles very carefully.

        if i’ve learned anything about this man, it’s that this skill is like falling off a log for him. consistent with his no drama mantra.

        ok. now. i’ve been wanting to hook up with you on those matters of professional boards and such. is there a way we can actually communicate with each other directly? i’m hesitant to give out my email address here, as i am sure you are, too. any suggestions?

        • eCAHNomics says:

          create a unified country

          And if he can’t, is his whole program on hold? Your comment makes it sound like a timeline, i.e. that bringing the country together precedes actually getting stuff done.

          • lllphd says:

            of course, this is a timeline! of course one foot proceeds before the other! but these are not mutually exclusive, this “stuff” that must get done and bringing the country together. obama is proving at the very least that he can walk and chew gum at the same time!

            the situation is far more nuanced than you present in your comment (which surprises me, as you’ve always seemed quite capable of nuance). in case you have not noticed, “stuff” IS getting done, and at quite a clip. it may not be happening as fast as YOUR timeline would have it, but my sense is that obama senses that the kind of timeline you desire (as do i, make no mistake; chompin’ at the bit here) holds deep risks for undoing a lot of the “bringing together” part of the agenda. which will be required to get these really difficult, deep wounds healed.

            i’m learning a lot from obama about how to deal with such division as we have been experiencing in this country. despite how terribly far afield so many folks got in the past decade and a half (when the repugs took over congress is when i mark the slide), there are so many real people out there who just got lost and very confused. they’re not as sophisticated as we are here in this forum, nor as nuanced, but they are doing what most folks do when they don’t understand what’s going on around them; they panic and blame and point fingers at the boogeyman. the details don’t really matter; this scene is just human nature. it takes a helluva lot of determined grit and courage to stare that kind of crap down in the mirror, and most folks simply don’t go there.

            so we’re left with what we got. a lot of really scared and really ill-informed and crazy folks out there. sad, maddening, but just plain true. this is the hand that’s dealt obama right now, and he would be a fool to just take his position of power and start shooting everything that went wrong and all those responsible. that’s not his style, and i’m eternally grateful for that; that was bush’s style! regardless of what is right or wrong, the wrongest thing a democratic leader can do is rule from a position of power. i am grateful that obama is leading as an elected citizen who invites the rest of us – REPUBLICANS AND RIGHTWINGNUTS INCLUDED! – to participate in the process. in a democracy, everyone has a voice, remember?

            there are a good many brilliant and dedicated lawyers who contribute intelligence and brilliance here, and most often they are accurate about their legal opinions. however, time and again i am struck with their insistence that this or that be done – and immediately! – because it is legally correct, without consideration to just how impolitic it would be. of course, laws cannot be openly broken or even ignored, but neither do they exist to be used like bludgeon tools, or without consideration of consequences. just as mercy should always be at the shoulder of justice, so should wisdom.

            obama knows full well that the repugs are out there crouched and ready to pounce on him should he move too fast in the ‘wrong’ direction. he’s not going to presume to be the king like bush did; quite the opposite. he’ll take each step and each crisis and weigh it in the larger picture, considering what steps need to be taken first, gaining good foothold, before he tries to take any great leaps.

            and sure, we all here agree that the torture and domestic spying questions are no-brainers, but there are many repugs who not only disagree, but who are running flat out scared as rabbits about the implications of their support for those things. they did not think about it when it was going down, they went along with the pack because they were as afraid as the next guy and hey the payoff was great. but that was then and this is now and we’re starting to see a good bit of desperate behavior from these guys, kit bond’s little manipulation of the truth just one case in point. that’s good. really; the closer things get to exposing them, the crazier they’ll get. that’s what the insanity of the republican presidential campaign was all about; a bunch of inept idiots with way too much power finally having to face the reality of their own depravity. and it was not a pretty picture. amazing mccain can show his face, but i guess he’ll just leave his rage about palin for his daughter to channel.

            but i digress. i suppose a rough way to put my thoughts about this is that i wish you folks would just keep your pants on. try to imagine just how the media and then the country would respond to obama’s taking a gunslinger’s attitude about all these treasonous crimes. you and i and marcy and everyone here, plus greenwald and horton and every thinking american, would be thrilled, but it would create a nest of problems, problems that could ultimately tank his success. he’d hit a wall so high and thick and hard, he’d never surmount it. he knows this. he’s not about to take on the most important aspects of what he’s facing now (shy of the utterly destroyed economy) before he believes he can be fully successful.

            call me crazy, but i predict he’ll definitely get to that point. he’ll feel out all the variables first, because i honestly believe he is determined to do what is right and do it successfully, not fall flat like bush did with social security. i know, bad analogy, but the media is NOT so nuanced as to see those differences. they would rip him apart. my predictions include seeing what happens to rove, in the courts and in the media and in public opinion. even that single problem of rove holds within it numbers of steps he must navigate very carefully. move cautiously, but with clear focus. then looking at the review of gitmo, while considering the international implications. watching the various suits move through the courts. and so on. it will come. he is NOT the dictator and cannot push these things; he’d be a fool to try now.

            and here’s my sense of the whole telecom immunity thing. i was devastated at his vote, i truly was. but you know what? the media held all those cards. they had every single candidate by the short and curlies. i have no doubt that, had obama voted his conscience on that one, they’d have chewed him up and spit him out and then where would we be? i don’t like to think about it. so my sense is that he thought this whole thing through, and realized that he would never be in a position to even try to right this sinking ship if he never even got the nomination, let alone the presidency, and he couldn’t do either if he trashed the telecoms (BIG problem with the free press, but for another day….), so he compromised. ok, that one curdles my juices, too, but i also think it is very dangerous to assume – and even more dangerous to impose – this notion that one must never compromise. sometimes you’re forced to choose. think of sophie’s kids. that is a highly authoritarian attitude, even if your position is ultimately correct! obama (i hope this is what he was thinking) knew that there are other ways to correct the wiretapping problem. first, there needs to be a law that is just boldly specific about what companies are and are not allowed to do under government directive. get the courts involved, whatever it takes, but there is a way to build an airtight law that keeps this from happening again. second, there are ways to weaken the telecoms such that they are never again so tempted to break the law in order to keep government contracts, etc. one is to bust them up, but that will have to come later (it will; this should be our highest priority, to recover a free press, but…later…). another is to craft more airtight laws for government contracting. these things can be done in congress, but only if those committees hold open hearings that expose them for what they did. this will necessarily expose the government players, as well, which is also necessary. consider all the ways in which this route covers more ground than rejecting immunity would have. yet another avenue is to staff the fcc to actually force the telecoms to behave as they should, to retreat their megalomania, to return to providing public service. lots of ways to bring the telecoms to heel; no need to go off like gangbusters after the handful of honchos who allowed this to happen if that could risk getting all the rest of it done, too, and then maybe not even getting the honchos.

            these are delicate matters. nuanced, if you will. it is just not simply a matter of what is legal and what’s not, what is right or wrong, and what’s not. if there were only one or two matters before us, like watergate and nam, this approach might make more sense. but we’re in a helluva lotta messes here, and they’re all hugely tangled up, at that. hey, i’m finding myself extremely encouraged at just how much open attention and coverage these raw questions of torture and war crimes are getting already; these things will force obama’s hand eventually, and that’s as it should be. he is the president, not the dictator.

            that is the theme of a short piece that andrew sullivan just posted; take a peek:
            (short version: obama knows he is the presider, not the decider.)

            look, it also strikes me as remarkable that any one of us should be second guessing obama’s intent at this point, with all he has on his plate. of course we should keep the important issues alive and unrelenting, but why question his intent or abilities at this stage, with this incredible mountain of fiascos he is facing? it will require herculean skills to tiptoe through the wreckage and know which disaster requires immediate attention and what needs to wait and which actions require others to happen first and so on. i remain steadfast in believing this is the guy, and that he will not forsake the constitution.

            [i apologize up front for the longwinded comments, but i’ve been working on a mind-numbing project, and it’s just terribly freeing to write something that means anything for a break! anyone who gets through this drivel, sorry for the length.]

            • bobschacht says:

              My take on what you’re saying here is, Let’s not get over-excited about tactics without keeping the overall strategy clearly in mind.

              Here at the Lake, we can run around willy-nilly, ripping our clothes and gnashing our teeth over the news of the day. But Obama (unlike McCain) has shown that he has a steady hand, and an eye for strategic planning that few here have mastered. And he’s a poker player. In bridge, my old bridge buddy Ed Smolsky used to say, “One peek is worth two finesses,” but Obama is playing his cards close to his vest and keeping a poker face. I’m not being pollyana here– I don’t know what his strategy is, either. If we did, then the Republicans would prolly know, too, and that would not be good.

              We’re less than two weeks into the Obama administration. I’m with lllphd here– we need to have some patience, but also be vigilant.

              Bob in HI

              • lllphd says:

                yeah, what you said (far more succinctly than i!).

                ’specially that poker thang. he’s very damn good. and, he doesn’t seem to miss anything.

            • TheraP says:

              I think you’ve put your finger on something very important here. And I’m going to back up what you said, but from a different perspective. Change involves “loss.” Even positive changes. So Obama is wise to go slowly. He’s wise to let the people get out ahead of him, rather than try to pull them along behind him. There are going to be hugely wrenching changes coming. And it’s going to take stamina to adjust to them. Maybe not for us here. But for the country as a whole. People will often hang onto a bad situation, simply because they don’t want to face the adjustments to a new and better situation.

              I’m reminded of the general election. There were many, many times when people got all riled up and wanted Obama to act. But he bides his time. He waits for desire to build. And then he acts at a point where many people are already hoping and expecting for action on his part.

              People are used to a politician who’s a tactician. And Obama is that too. But I think Obama is in many ways a “healer” – someone who wants the country to heal but knows that will take time and should be done with as little disruption as possible.

              Change takes time.

              • lllphd says:

                that’s a great perspective, healer. a few responses;

                “wise to let the people get out in front of him.” interestingly reminiscent of a story told my mandela about his father, the chief of an african tribe. something like, a great leader is one who follows the lead of his people.

                “People will often hang onto a bad situation, simply because they don’t want to face the adjustments to a new and better situation.”
                also because they don’t want to face the unfamiliar; often they can’t even see it can be better. lack of imagination, but that’s part and parcel to the fear.

                “I’m reminded of the general election. There were many, many times when people got all riled up and wanted Obama to act. But he bides his time. He waits for desire to build. And then he acts at a point where many people are already hoping and expecting for action on his part.”
                what i noticed even more was how everyone would get riled up, and he would not at all, and that would rile folks up too, and then…. it would all just pass. he was uncanny at recognizing that everyday there’s a media flash that is so easy to get sucked into. he knew when to fold and when to double the pot. like his race speech. just very clear intuitions. something that makes it easy to trust him, because he trusts himself.

                most definitely, change takes time. most of us have already been living in the cognitive space we’re hoping the rest of the country can get to. but we each need to take stock of just how tyrannical we can sound when we insist that the world spin at precisely our designated speed and angular tilt. all this whining also misses obama’s larger point of working together because we are all in it together. if you’re so smug and sure you’ve got all the answers, i guess you’ll never be satisfied. unless you yourself are president.

                d’ya hear that, bmaz?

            • john in sacramento says:

              Sorry for the length

              Thanks for this, I appreciate where you are coming from and respect everything you’ve said …

              But I disagree

              I know he is a politician. I know this is a democracy. I know he’s the President of all the people. I know there are a lot of moving parts. But he is The President of the United States of America. He took an oath to The Constitution

              “I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.”

              He has a bully-pulpit and the ability to inspire – which he can and should use – but which he has neglected to use for those who supported him.

              Maybe he has a plan, but he’s reminding me of Bill Clinton – but not so much with triangulation which was fantastic for him but devastating for the Democrats on the local level.

              If he has a plan, it is reminding me of Dr. King’s letter responding to the local clergyman in Birmingham Alabama to not make waves and be patient

              While confined here in the Birmingham city jail, I came across your recent statement calling my present activities “unwise and untimely.” Seldom do I pause to answer criticism of my work and ideas. If I sought to answer all the criticisms that cross my desk, my secretaries would have little time for anything other than such correspondence in the course of the day, and I would have no time for constructive work. But since I feel that you are men of genuine good will and that your criticisms are sincerely set forth, I want to try to answer your statement in what I hope will be patient and reasonable terms.

              I would like to remind Obama of this passage

              Moreover, I am cognizant of the interrelatedness of all communities and states. I cannot sit idly by in Atlanta and not be concerned about what happens in Birmingham. Injustice anywhere is a threat to justice everywhere. We are caught in an inescapable network of mutuality, tied in a single garment of destiny. Whatever affects one directly, affects all indirectly. Never again can we afford to live with the narrow, provincial “outside agitator” idea. Anyone who lives inside the United States can never be considered an outsider anywhere within its bounds.

              He’s not using his abilities, which either suggest he approves of the policies he is continuing or like you say it’s a moderate political plan.

              But Dr King also addresses this

              I must make two honest confessions to you, my Christian and Jewish brothers. First, I must confess that over the past few years I have been gravely disappointed with the white moderate. I have almost reached the regrettable conclusion that the Negro’s great stumbling block in his stride toward freedom is not the White Citizen’s Counciler or the Ku Klux Klanner, but the white moderate, who is more devoted to “order” than to justice; who prefers a negative peace which is the absence of tension to a positive peace which is the presence of justice; who constantly says: “I agree with you in the goal you seek, but I cannot agree with your methods of direct action”; who paternalistically believes he can set the timetable for another man’s freedom; who lives by a mythical concept of time and who constantly advises the Negro to wait for a “more convenient season.” Shallow understanding from people of good will is more frustrating than absolute misunderstanding from people of ill will. Lukewarm acceptance is much more bewildering than outright rejection.

              I had hoped that the white moderate would understand that law and order exist for the purpose of establishing justice and that when they fail in this purpose they become the dangerously structured dams that block the flow of social progress. I had hoped that the white moderate would understand that the present tension in the South is a necessary phase of the transition from an obnoxious negative peace, in which the Negro passively accepted his unjust plight, to a substantive and positive peace, in which all men will respect the dignity and worth of human personality. Actually, we who engage in nonviolent direct action are not the creators of tension. We merely bring to the surface the hidden tension that is already alive. We bring it out in the open, where it can be seen and dealt with. Like a boil that can never be cured so long as it is covered up but must be opened with all its ugliness to the natural medicines of air and light, injustice must be exposed, with all the tension its exposure creates, to the light of human conscience and the air of national opinion before it can be cured.

              I think you and I have the same goals but we’re just taking different routes to get there

                • lllphd says:

                  ah. that makes a difference, but i’m not sure where it fits in. do you mean bill had a good plan, and so does obama? how does that work with the rest of your argument?

                  i should say that i was grateful to read king’s words again, and thank you for posting them. they should never be forgotten, but i suppose, king being a preacher and all, he would see the ecclesiastical wisdom of recognizing the different seasons he and obama represent. king was in a b’ham jail; obama is in the WH. different times, different situations, different measures.

              • lllphd says:

                “He has a bully-pulpit and the ability to inspire – which he can and should use – but which he has neglected to use for those who supported him.”
                gosh. i must have missed something in there, but of the 70+% of the population who give him high marks right now, what percentage of those who don’t are his supporters?
                paying back the base is not what this is about. that kind of complaining actually sounds like the fundamentalists whining to bush about not getting their marriage act.
                the bully pulpit is for bullies. obama does have the ability to inspire, and he is doing just that. it takes time to seduce the nay-sayers. why are we having this sort of conversation, on a blog like this one, just one week in??

                “reminding me of Bill Clinton”
                which bill clinton? the one before or after the ‘contract on with america’? bill did numbers of things i did not like, but he was forced to compromise with that gaggle of hooligans in congress. as i noted in the previous comment, obama fully recognizes that, despite how strong dems are right now, the media is still back there in the newt trenches. in case you haven’t noticed. ben franklin wisely recognized that the free press is the foundation of a strong democracy; we have only a fragmented one, and many out there don’t exploit the internets the way we do. the power of media manipulation is formidable. obama is working to seduce them all so the people will have more power than the media. god – and our founding fathers – willing.

                wrt your references to mlk: king was not president. he had taken on his role as a peaceful activist, and his efforts have now borne powerful fruit. there is more parallel than you might think, tho; king fully recognized the power of his position, but he also knew how volatile it could become. this is why he was so inspired by gandhi, who also knew the power of his position and how to maintain it while keeping violence at bay. it’s a clutch kinda thing, not too much gas not too much choke. timing is key. king knew the time had come. obama is deeply inspired by king’s life, and i suspect he’ll be damned before he blows this opportunity now that he is in a very reversed position of power. that is precisely why i suspect he is choosing to move through this loaded minefield with such caution. timing is still key.

                i was in memphis the day king was shot, and i traveled to DC last week to find closure for that tragedy. it worked. really really well. because i did not go so much to see obama inaugurated, but more to be in the midst of all the people who celebrated the same relief and release that i sought, that i required. it was euphoric, but only partly because of obama’s inspiration. mostly it was all those wonderfully inspired people.

                (and then i drove through gettysburg and got really inspired. talk about themes returning on themselves! at least, once i was able to get my hands on a parchment copy of lincoln’s address.)

                it is all those people obama is concerned with. and he is listening to them. all this blather about how big a constitutional scholar he is….
                (oh jeez, u of chicago not hot enough for ya, bmaz? pres of the harvard law review? not scholarly enough? or not constitutional enough? why would u of chicago hire someone to teach constitutional law who might not be considered a scholar on the subject?) …
                …those people don’t know the constitution. i agree, that’s sad and a shame, but it’s also the truth. but that does not diminish their value as citizens, nor does it reduce the power of their voices.

                somehow i cannot imagine that king would begrudge obama’s attempts to include every citizen, including – nay, especially those who are now in the minority, in this democracy. king knew well the difference between holding power and having power’s heel in your throat. i am certain he would recognize that obama must now expand all the sacrifices that paved the path from that b’ham jail to the WH to embrace even our enemies and yes, the criminals among us.

                i do not believe that sentiment would or should mean that criminals should go free. but for the kind of justice to hold for what you – and i and everyone here – demand, the people must come to understand what those crimes are, and why the violations of the constitution are so egregious. that will not happen by the stroke of obama’s pen, but it can happen by his inviting the country – including enemies and criminals – to the table. the debate will be televised; the world will be watching. this justice will keep, not because obama says so, but because everyone else cannot say otherwise.

                and that will take a little time.

                you are likely correct that we seek the same ends but take different paths. but i’ll ask you this: how solid do you think the justice will be if obama shoves it down the throats of half the country who do not understand? when the media are over-reacting and painting obama as the witch hunter? when the shock jocks still have enough voice and listeners that they get the whole froth thing going again? you and i might be satisfied, but only for a short while because the potential for that scenario unleashing the hounds yet again is just way too high. this must be done with finesse if it is to last.

                i prefer to be patient and allow not only for obama to charm a sight more souls, but for the repugs to continue to make perfect asses of themselves, so solidly that people just stop listening to them, even the shock jocks and even the media. that unbearable screech of fear and loathing must be reduced to the whine and whimper that it really is without all the false amplification before the time will be right to strike. the stage is set. i’m actually blown away by how quickly this is moving in the proper direction for justice.

                even king would tell you there is a time to be patient. that time is now.

        • TheraP says:

          Private messaging – if we knew where to do that.

          Otherwise, perhaps you and I could authorize FDL/EW to release our emails to each other only. I’m certainly willing to authorize that on my end and I think you already offered on yours. (we do tend to think alike, I notice and have similar interests)

          I too have been thinking of you. And this very need to connect. Just didn’t know when our paths would cross next.

          If the mods are currently paying attention, could you somehow be of assistance to us? Thanks in advance!!!

      • lllphd says:

        hm. actually, missed responding to your first point, which i’m not sure is accurate. as the executive, it expressly IS his role to investigate and prosecute violations of the laws; that’s why the doj and fbi and such are all in that branch and no other.

        however, the point i was making – which i sense you agree with – is that, as the president, he should not be issuing charges without evidence, intentions without reason, or comment without concern for consequences. his role is to set the tone and let those he has designated with the powers to investigate and prosecute bring him the evidence and reasons for whatever appears to be necessary. he will then, i have no doubt, make the proper move to do what’s right. his intent to move forward leaves him plenty of wiggle room for that; moving forward cannot mean we leave justice unserved.

        • TheraP says:

          Since neither of us is a lawyer, I’m really not worried that we have a bit of a difference here about the roles of DoJ and President. But it’s an interesting issue. And I wish someone would elucidate the best scenario for how these two operate. The more separation of powers the better with regard to those two keeps would be the best, I would venture to say.

  4. CasualObserver says:

    But I think it just as likely (and more typical of Holder’s legalistic style) that Kit Bond is talking out of his ass to *pressure Holder* to avoid looking into the actions of Bush and Cheney.

    Absolutely. Bond’s word isn’t worth a fiddler’s fart. Holder said no such thing. But would be good to put the question to Holder, just for the fun of it.

  5. WilliamOckham says:

    OT: I know there are a lot of timeline fans around here. I found this one from ProPublica very useful:

    The Missing Memos

    The Bush administration’s “war on terror”—including its controversial policies on detentions, interrogations and warrantless wiretapping—were all underpinned by legal memoranda. While some of those memos have been released (primarily as a result of ACLU lawsuits), the former administration chose to keep many others secret, citing security and confidentiality concerns.

  6. jonL says:

    I just got off the phone with Bond’s office. I asked if he was going to resign? The staff could not answer that qestion. I asked if he stated he got a promise from Holder to not prosecute in return for his vote. They stated he would put out a staement later and he had nothing else to say. I pointed out the criminality of this “pay to play” and the staffer stated he had no comment. My feeling was the staffer was feeling a great deal of heat from the amount of telephone calls received on this matter

    • Knut says:

      Good work. As I said downstairs, I think Bond is just blowing smoke here. In any event, as noted upstairs, whatever happens will take its normal course through the DOJ, once the Rove moles have been rooted out. That is going to take time, unless Holder sets up a special section to look into the Bush crimes, which I think is unlikely, but not impossible, along the lines of Godfather I.

  7. itchyfish says:

    Could this be a ploy on Bond’s part to derail the Holder nomination? Personally costly for Bond, but his time in the Senate’s almost done anyway, and by the time a new nominee could be approved, another month might have gone by…

    • Waccamaw says:

      “It would be completely wrong if a senator said, ‘I’ll vote for you if you promise to withhold prosecution of a crime’,” Leahy told me. “No senator would make a request like that. It’d be improper.”

      “Maybe Governor [Rod] Blagojevich [D-IL]” would have sought such an assurance, Leahy quipped. He never specifically referenced Bond [my bold], who declined to answer questions about the Times piece while leaving the Senate chamber this afternoon.

      *insert knife*

  8. Stephen says:

    So, after Senator Whitehouse gave us a refreshing speech about making any ” inappropriate demands ” we are informed that Mr Holder according to Bond ” assured him privately “.

  9. eagleye says:

    Wouldn’t it be totally innapropriate for Holder to take any position on the torture question until he has reviewed the facts? I don’t want an Attorney General who pre-emptively commits one way or the other.

  10. eCAHNomics says:

    Holder gave written assurances about those who relied on John Yoo’s crappy opinions.

    That includes Cheney, W, etc.

    • perris says:

      everyone relied on yoo’s writing

      although if you want to see bus throwing underness, prosecute just yoo since he wrote the opinions everyone else used to get a pass

      yoo will yap and yap about how he was coerced…the irony is intrigueing

      • eCAHNomics says:

        Right. My point being that Holder HAS promised no prosecutions. Unless you think he’ll prosecute Yoo & Addington. bwahahahahaha

        • perris says:

          I believe any promise made in confidence yet exposed becomes void

          however that’s me, I am not holder of course

          • eCAHNomics says:

            But Holder’s promise was not made in confidence. According to what emptywheel typed, the assurances were made in writing.

        • selise says:

          Right. My point being that Holder HAS promised no prosecutions. Unless you think he’ll prosecute Yoo & Addington. bwahahahahaha

          imo that’s why this is such a very important issue to get out in the open now before the full senate vote. for me this about holding leahy et al accountable – if indeed holder has made such a promise.

          • eCAHNomics says:

            This is what emptywheel typed:

            Holder gave written assurances about those who relied on John Yoo’s crappy opinions.

            Since everyone relied on Yoo’s opinions, including W, Cheney, Rummy, Holder will not prosecute them. This has nothing to do with Leahy.

            • selise says:

              This has nothing to do with Leahy.

              leahy is chair of the committee that just passed the holder nomination on to the full senate. here is what leahy is reported to have said:

              Senator Patrick J. Leahy, the Vermont Democrat who is committee chairman, noted Mr. Holder’s background as deputy attorney general, a trial judge and lawyer in private practice made him highly qualified for the post. “Eric Holder is a good man, a decent man, a public servant committed to the rule of law,’’ Mr. Leahy said. He said that while any senator was free to oppose the nomination, “in this instance, I think they will be on the wrong side of history.’’

              if leahy is trying to pretend to be all “rule of law” while pushing the holder nomination and knowing that this promise was made (if it was indeed made) and what it means, well in my book we should call him on it. the bond report gives us a wedge to attempt to find out. that’s my current take anyway.

                • selise says:

                  I don’t see anything about rule of law in the Leahy quote.

                  this bit:

                  Holder is a good man, a decent man, a public servant committed to the rule of law

                  how can leahy say this – if it is true that holder has promised in writing that there will be no prosecutions?

                  • eCAHNomics says:

                    Geez, I need to get either my glasses or my mind examined. I missed the end of that sentence, perhaps because the pablum about the decent man & public servant made me space out.

                    Perhaps we should examine what Holder actually wrote instead of relying on emptywheel’s characterization. Is it in any of the links? I didn’t check.

                    • selise says:

                      lol. i had a really stupid day yesterday and a little bit today too. hope it’s not catching.

                      i haven’t read holder’s written responses (if they are indeed available, haven’t even looked for them), just going by marcy’s reports it all seem quite conflicted to me at the moment.

                    • R.H. Green says:

                      “…all seems quite conflicted…”

                      As I tried pointed out yesterday, there is one word that many are overlooking, (and as you also stated are seeming to see what they want to see, except you and me of course). Now today EW posted the same remark again, as well as another with the same word:autoritative(ly). Reviewing these 2 statements first with the word in, and again without, I think makes Holder’s position clear and I’m beginning to be optomistic about his meaning (moreso than yesterday).

                      “The gist of Holder’s stance on the issue…is that if you have an authoritative legal opinion, that’s a defense in terms of mens rea, of intent”.

                      “But where it is clear that a government agent has acted in reasonable good faith reliance on Justice Dept legal opinions authoritatively permitting his conduct, I would find it difficult to justify…a prosecution”.

  11. sojourner says:

    Just looking at all the GOP’s moving parts in this and other activities over the last few days, it strikes me that there is an enormous conspiracy on their part to subvert any semblance of justice. This is nothing new, though — the entire Bush administration was a conspiracy in my opinion. Someday, I hope the historians can truly reconstruct who was pulling the strings and how. It is definitely a well-coordinated program — I have to give it that!

    • Stephen says:

      Right, IMO once it is proven that declaring executive powers and privilege was to hide evidence of wrongdoing on just one issue, judges will be reluctant to protect Bush and Company on anything else. We just can not seem to get through to that one issue.

  12. JTMinIA says:

    If nothing else, you gotta admit that what Bond has done provides an excellent (almost obligatory) reason to delay any further votes on Holder.

    That might be his plan.

    You might be being used.

  13. cathy says:

    I wish Obama would respond to the republicans when they wanted to raise the tax cuts in the stimulus plan by lowering his tax cut amounts. I do that to my daughter when she asks me how many cookies she can have for a snack. When I say three, she says five, I then say one, she says four, I say none and then she agrees with three. And the republicans are just like children.

  14. perris says:

    might be too late but everyone should go and ask a question to podesta

    think progress is sponsoring an ask/answer ;

    Later this afternoon, I’ll sit down with John and pepper him with as many of your questions as we have time for (and questions from our commenters only). We’ll video-record the interview and post it on ThinkProgress tomorrow.

    we might like to get in a few questions about prosecuting traitors who committed torture

  15. pdaly says:

    Prosecutions it should be. But I wish the NYT would be careful about which stories it publishes. Stop giving ideas to Rove and company.

  16. wavpeac says:

    The part of human nature that I am “listening to” here is that they are “defending” and “attacking”. This is a sure sign of anxiety and shame.

    It’s clear to me, that the bush cabal and all their poops (typo, really, meant to say peeps) are very worried about what is going to happen next.

    That is enough to make me smile for today.

  17. Hugh says:

    BTW via public radio here: Blagojevich will show up at his impeachment trial tomorrow not to submit to questioning but to make a closing statement. Per Senate rules he would have up to 1 1/2 hours to do so.

        • Hugh says:

          I should say that so far I have no time for when Blagojevich would speak. WILL has for the moment gone back to regular programming. They have been carrying the trial. The most recent testimony was about Blago’s failed scheme to buy flu vaccine which eventually was given to Pakistan and then destroyed because they didn’t want it and it was out of date.

    • LabDancer says:

      Back a day or so freep and I were riffing [try it] and I believe we came up with a prediction of just this sort of ‘Brittany’ moment.

      The ratings alone justify commitment from cable. Or maybe C-Span can cut a Mozilla-like deal with Google and make a coupla bucks.

      • hackworth1 says:

        After watching Maddow’s excellent Blago interview, I am confident that Blago will find no difficulty holding forth for at least 1 and 1/2 hours.

        I say the interview was excellent, though I think Maddow was hasty in deeming that Blago had confessed to any wrong doing per se. Seems to me he left himself some wiggle room vis a vis qualifying his remarks.

  18. Stephen says:

    By declaring that you will not prosecute any of the water carriers, does that not defeat the purpose of just offering immunity for testimony in the future.

  19. eCAHNomics says:

    The first part of what emptywheel quoted said intelligence agents, but in the second paragraph, he is less specific:

    that a government agent has acted in ‘reasonable and good faith reliance on Justice Department legal opinions’ authoritatively permitting his conduct, I would find it difficult to justify commencing a full blown criminal investigation, let alone a prosecution.

    So just who is a government agent? Prez? etc. Think you might be able to drive a truck thru that one.

    • selise says:

      sounds very much like obama-speak to me (which means people can hear what they want to hear). i for one would like it nailed down with no wiggle room.


      • eCAHNomics says:

        Agree. Think they’ll do whatever is politically expedient and we won’t be able to tie them down.

    • JThomason says:

      This in nothing than restatement of a kind of sovereign immunity carving a new color for ultra vires activity under the rubric of bad faith. In any event if this was not enough the Bushites always have the MCA to fall back on.

  20. dcblogger says:

    someone needs to tell Bond that this is not just an American decision, that any signatory to the ICC can bring charges against Bush, Cheney, et al

    it would be much less humiliating if we were to do this ourselves.

  21. Bluetoe2 says:

    If true it’s just another confirmation that this is a corrupt system that merely benefits and protects a rarefied priviledged elite and is incapable of true reform.

  22. AZ Matt says:

    From Sam Stein at Huff Po:

    An aide to Eric Holder rejected a report Wednesday suggesting that the Attorney General nominee had pledged not to prosecute members of the Bush administration officials who were complicit in illegal harsh interrogations or torture.

    “Eric Holder has not made any commitments about who would or would not be prosecuted,” said the aide. “He explained his position to Senator Bond as he did in the public hearing and in responses to written questions.”

  23. KayInMaine says:

    So Kit Bond is bribing President Obama’s nomination by telling Holder he will vote for him if Holder refuses to prosecute anyone in the Bush Regime? Wow! And to think we’ve been upset with Blago all this time. LOL

  24. milly says:

    Let’s find out just how honest Kitt Bond is. I remember him on CSpan saying the US spent about 6 % of the budget on defense..lower than when JFK was in office. Even the old timers calling in that day were remarking ,”Can’t you get somebody on who is honest?” Soon as I heard it was Kitt bond that made the statement I thought he just made it up.

  25. bobhenry says:

    Geithner was a disappointment. Now Holder capitulating
    to pressure from Senators. This is not shaping up to what
    I had hoped or imagined would happen. Perhaps I should stop imagining, take the bitter pill…our government is corprupt…and our new government is now corrupt.

  26. cinnamonape says:

    Doesn’t Kit Bond swear to uphold the Constitution and laws of the United States just as much as a President or legal officer.

    Just what is he saying?

    Mr. Bond said, “I made it clear that trying to prosecute political leaders would generate a political firestorm the Obama administration doesn’t need.”

    So Kit Bond is saying that there are different laws for politicians than everybody else. That political considerations should be used when deciding who to prosecute for crimes.

    I think that Bond needs to go onto the floor of the Senate, apologize for making such statements, asking the future Atty General to take such illegal and Unconstitutional considerations under advisement, and resign!

  27. cinnamonape says:

    I think Kit Bond violated the Oath of Office.

    “I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter: So help me God.”

    No one…not even a “politician” should be above the laws of this country and exempt from criminal prosecution!

  28. readerOfTeaLeaves says:

    Back in fall 2005 or 2006, Pat Fitz was closing in on something related to L’Affair Plame. The wingnuts went batshit and EW’s old blog over at TNH got all kinds of trolly comments about how “Fitz is an out of control Prosecutor!”

    It was kind of funny, but this looks like the panic stricken Guilty Ones are doing a revised number on Holder.

    Time for popcorn.
    I think that I might put garlic powder on my Kit Bond Version Of Trying To Set Up Eric Holder.


  29. JohnK47 says:

    In response to bmaz

    You cast Obama’s teaching experience at the U of Chicago in the worst possible light. U of C officials have posted an explanation of his status on the faculty in far more glowing terms.

    And BTW: the part-time nature of Obama’s job was his doing, not the university’s. Obama turned down an offer to go full-time because of the demands of his work in the legislature.

    Beyond that, one needn’t be a full-time faculty member to qualify as a constitutional scholar.

    • bmaz says:

      Jeebus, this is one lame issue to be arguing over. You really think that any mope who lectures a base Con Law class is a “Constitutional Scholar”? If so, your standards are a hell of a lot lower than mine. Secondly, can you point out anything i said that was incorrect? I did it from memory, there may be; if so, feel free to specify. I will accept correction if wrong. Listen, feel free to consider Obama the highest best and brightest Constitutional scholar that ever lived, that is your prerogative. Personally, I encounter lawyers every day who appear to have a better grasp. They are not “scholars either. But, hey, whatever. By the way, can you point to anything I said that was incorrect??

    • mercury says:

      Yeah, I’ve read the same things as TheraP and yourself regarding Obama’s history as a scholar (or lawyer, or teacher or whatever the fuck — I’m not a college grad myself just a workin’ plebe.)

      But I guess it’s just not good enough! “Meet the new boss blah blah blah”. Jeez.

  30. Hmmm says:

    EPU’d: The part I have not been seeing the logic of in the “Phew, he’s out of committee!” narrative is this: Do we have any reason to believe there will not now be holds?

  31. Hmmm says:

    Also EPU’d elsewhere: Why does the GOP have their A-Team right now on the Coleman challenge, of all things? Is something non-obvious at stake?

  32. Hmmm says:

    I suppose there is also the possibility that Bond is not familiar enough with the law that when Holder said “having an OLC opinion is a mens rea defense”, Bond heard “there is no point in prosecuting”, as though there couldn’t be any other factors to consider in the cases. Nummer’n a hake, that Bond.

  33. JohnK47 says:

    bmaz: “Obama is NOT, and never has been, a Constitutional scholar. He was a part time paid adjunct lecturer.”

    JohnK47: Yes. I’d argue your statement is “incorrect” (illogical) as constructed. Assertion: not a scholar. Support: he was part-time. Unless, of course, you’d concede Obama would have instantly achieved scholar status had he accepted UofC’s offer to go full-time.

    That said, of course you’re right. Obama’s prowess among constitution experts is a lame distraction. What’s important is that he obviously knows more about the constitution than Bush did.

    And if we’re lucky, he might even help restore our Fourth Amendment.

    • bobschacht says:

      Well, gee. I hear there’s some pretty good university (used to be pretty good, anyways) that seems to think John Yoo is a Constitutional Scholar, isn’t there? I suspect that Obama could make mince meat of Yoo in any Constitutional debate.

      I think there oughta be some room between UChi’s puffery and bmaz’s dissing of Obama’s credentials.

      I’d like to know if the U Chi offer of a “chair” was made before Obama’s nomination. If they really offered him an endowed chair before he became the Democratic nominee, then I’d say bmaz is guilty of bad-mouthing a legit honor that really does mean something.

      Now, Cass Sunstein, he’s something else…. *g*

      Bob in HI

  34. Stephen says:

    Apparently Holder’s aide denied that Holder made any assurances to Bond. Does that denial hold water? From what I understand Holder has made no formal denials himself or said anything for that matter.

  35. JerryArrigoni says:

    Just what the hell is the definition of Obstruction of Justice, anyway? If I went to Holder and told him that I would help him get appointed if he didn’t pursue any prosecutions. I could be charged with the felony of Conspiracy to Obstruct Justice. And if I did manage to get him appointed, I would have obstructed justice and could be held culpable. Another felony. Just why is Sen. Bond Immune to prosecution?

  36. selise says:

    …projecting what you want to see happen, and not listening to what Obama has said he wants to happen

    in general i agree with this – but i would go even further. what obama says does not necessarily reflect what he wants to happen. so far, obama has been selling himself – not policies.

    therefore i’ve been arguing that the best way to judge is to watch what obama does – not what we want or even what obama says.

    • TheraP says:

      I’m with you, Selise. I’m watching what he does. And I’ve seen him appoint these folks. Folks who are capable to elite racing (as I put it) – once the gates are opened. To my mind we have moral duty, in addition to a legal duty for Justice to be served. Yes, I definitely want that. No doubt about it. But not in a way that would distract the country. A quiet, methodical investigation need not do that. Or they could extradite. It matters not to me. I’m waiting to see. Somehow, Justice must be served. The Law obeyed.

      Selise, is there any way you could send my email address to IllPhd? I know you folks are very busy here and I’ll understand if that’s “above and beyond” at this point.

      • selise says:

        hi. i’m so sorry, i don’t have IllPhd’s email addy. maybe one of the mods or bmaz? or if not, if you don’t want leave your email addy in a comment and are both willing to trust me as a go between, you can email me via the contact link (upper right hand corner) when you click on my name and i’ll pass it on if IllPhd will do the same.

        • TheraP says:

          Sorry, selise, I thought I replied to you – but I replied to myself instead! (so much for proofreading…)

          As you can see from @144, bmaz had already done so. Thanks a million for your willingness to assist. (I owe you one too!)

          Have a good day. And thanks for all you do!!!

      • lllphd says:

        therap, again, very much agreed. for obama to be talking gangbusters about this would essentially be like a prosecutor giving up all his chits to the press before he’s even gone to a grand jury. that is NOT a smart way to execute a prosecution.

        i’ve said it before that bmaz shows exquisite legal brilliance here, but even the law guys have to make decisions with finesse. take fitz’s blago decision as just one example. he was legally bound to stop a crime before it was committed, but he had to be exceedingly careful not to sabotage the rest of his case against him. very delicate operation.

        in my line of work, i spent a decade helping brain surgeons make decisions about how much tissue they could excise in epilepsy patients without disturbing eloquent cortex. this provides an excellent analogy, actually. there is no argument that the bush crimes represent disease, but there is also no argument that obama holds a very tenuous (despite the polls, the way the media operate he could be toast by friday if he makes too bold a move) position that is both fragile and exceedingly important for calling the surgery a success. if he cuts too deep too fast, the patient will be silenced, even though the immediate threat of the disease has been aggressively removed.

        we want this patient to be as fully functioning as possible when all is said and done. the legal eagles here should consider more carefully the risks involved in what they’re proposing.

        and again, jeebus, we are just over one week into this operation. where is the patience? where is the stamina? i’ll say it again, the nay-sayers around here remind me all too much of the whining fundamentalists who didn’t get their marriage act or their place at the table, like, immediately. i for one have no interest in our progressive movement becoming just another version of ‘principled’ tyranny, no matter how much i agree with the principles bmaz and his crew here state them.

        and YES, PLEASE, anyone out there who can please send one of us, therap or me, contact info. i realize this is not a service you provide, but it should hopefully advance ‘the cause.’ thanks in advance.

        • TheraP says:

          I sent you an email.

          In your work, you’ve had to be very discerning. Very patient. (I’m thinking of Kennedy right now… his surgery… the care, the need to do as much good as possible and as little harm as possible.)

          I’m a clinical psychologist. Mostly retired at this point. Ok. switching over to email mode. Over and out for now.

  37. wigwam says:

    In this video from the Rachel Maddow show, Russ Feingold says that he checked with Holder’s people and the President’s people, and they assured him that Holder made no problem not to prosecute.

  38. bmaz says:

    No saluting! The problem is that there is not time to wait for the wind. Time has long been wasting. Every day that passes, the statute of limitations expires on another set of criminally overt acts. HUGE ones are going to start expiring in March, less than sixty days from now. If it is going to be done, you have to get on with it. Prosecutions have to be undertaken because that is what justice demands, not only after you sell the thing as a politically acceptable thing.

    • selise says:

      The problem is that there is not time to wait for the wind


      legal. financial. environment.

      we are so fucking far behind the curve and time’s a wasting.

    • TheraP says:

      There is a statute of limitations for war crimes? Or do you mean only national crimes?

      I understand the time frame. Ok, then let’s go for it! I’ve written many, many blogs on this myself. At TPM. Been attacked up the whazoo for it. I will continue to do everything I can. (in every venue I can)

      You are dear to me, bmaz. May Justice prevail.

    • lllphd says:

      bmaz, i know the urgency, but i’m not so interested in getting the bush creeps on EVERYthing they did wrong, just a few or even a couple will do.

      or even one. you know, ness had to be content nabbing capone on tax evasion. but he got him, and he was thrown in the slammer. and in the process, the public was fully apprised of all the dreadful things that had gone on.

      this is of course not the scenario i am hoping for, and we’ll have to wait and see how it does unfold. i mean, rove and w and the big dick will be looking pretty ridiculous when the only response they can muster for the fox guys is “well, gosh, but hey, the law has statutes of limitation, and we were able to beat that, so heh heh we’re walking free.” a bit like OJ’s position after his acquittal.

      again, not my preference, but there are so many crimes that have been committed out there, pick one. if the clock runs out, pick another. and another. they’ve left us quite a legacy of scandals to choose from.

      still, we do need to keep feets to fires, so onward and upward. thanks for being so persnickity about these matters. i just hope you’re keeping your blood pressure under control. we need you!

      • TheraP says:

        That is exactly what I’ve been writing. Justice is served if only one case is brought. Yes, we’d like transparency on what occurred but that can be separate from nailing someone for one prosecutable crime.

        Here’s a thought. If Obama had a work group going through all the executive orders all summer, to line up what needed to be undone, then what if there was also a work group addressing these criminal issues? It’s not out of the realm of possibility. But naturally, if such a thing has been going on, Obama would never advertise that, would he? Or anyone else of course.

        But bushco is running scared. Definitely running scared!

        • lllphd says:

          could not agree more. on all of what you said.

          your speculation on obama’s working group also dovetails with mine. i just cannot believe he has not been thinking hard about these things. and considering best strategies, and with the biggest picture in view.

          he’s a canny lad; and i trust his judgment, and his moral intent.