December 4, 2020 / by 


House Judiciary Cuffs Joe Arpaio, The Most Abusive Sheriff In America

You have probably heard of the shamelessly self professed "Toughest Sheriff in America", Maricopa County Arizona Sheriff Joe Arpaio. For years he has been making a PR spectacle of himself, all the while running an unconstitutionally deplorable jail system, letting inmates die under tortuous conditions, and violating the civil rights and liberties of everybody in sight, especially minorities. Today, the House Judiciary Committee made public a critical and public step to rein in the Most Abusive Sheriff In America.

From the HJC press release:

House Judiciary Committee Chairman John Conyers, Jr. (D-Mich.), and Immigration Subcommittee Chairwoman Zoe Lofgren (D-Calif.), Constitution Subcommittee Chairman Jerrold Nadler (D-N.Y.), and Crime Subcommittee Chairman Bobby Scott (D-Va.) called on Attorney General Eric Holder and Homeland Security Secretary Janet Napolitano to investigate allegations of misconduct by Maricopa County (Arizona) Sheriff Joe Arpaio.

Sheriff Arpaio has repeatedly demonstrated disregard for the rights of Hispanics in the Phoenix metropolitan area. Under the guise of immigration enforcement, his staff has conducted raids in residential neighborhoods in a manner condemned by the community as racial profiling. On February 4, 2009, Arpaio invited the media to view the transfer of immigrant detainees to a segregated area of his "tent city" jail, subjecting the detainees to public display and "ritual humiliation." Persistent actions such as these have resulted in numerous lawsuits; while Arpaio spends time and energy on publicity and his reality television show, "Smile… You’re Under Arrest!", Maricopa County has paid millions of dollars in settlements involving dead or injured inmates.

It is time for the federal government to step in and uphold the rule of law in this country, even in Maricopa County."

"Law enforcement is not a game or a reality show, it is a public trust," said Scott. "There is no excuse for callous indifference to the rights of the residents of Arizona, whether in their neighborhoods or as pretrial detainees."

The full official text of the letter to Napolitano and Holder is here.

It is high time that somebody on the national scene notice, and the Federal government take action on, the egregious and violative conduct of Joe Arpaio.

Joe Arpaio is a two bit carnival barker and huckster, not a dedicated law enforcement official. The opportunistic man came into office running against a fellow Republican and incumbent Maricopa County Sheriff, Tom Agnos, by bad mouthing Agnos and arguing that the entire Maricopa County Sheriff’s Department needed to be cleaned up. In fact, Arpaio’s winning campaign was predicated upon his willingness to mock the very department he was running to lead and promise to expose the dirty laundry of Agnos and the Sheriff’s Department for its involvement in the infamous Buddhist Temple Murder case (link is a fascinating three part story), a seminal case in textbooks on coerced confessions (from the fact that four separate coerced false confessions were obtained to a single crime). Arpaio promised to restore honor to the department, and also swore he would serve only one term in office. Five terms and seventeen years later, Arpaio has failed miserably on both promises.

The upshot of the House Judiciary Committee’s missive to Attorney General Holder and DHS Secretary Napolitano is that Arpaio’s:

…repeated course of conduct, which values publicity opportunities over the civil rights of residents of Arizona, is too disturbing to leave enforcement of the civil rights laws to private litigants. There are several tools at the federal government’s disposal to address these allegations, and we urge their prompt consideration and application.

In short, the HJC is demanding that a full panoply of federal civil and criminal laws and remedies be brought to bear by the arms of federal law enforcement. One of the grounds for the HJC demand is Arpaio’s acts earlier this month, described in the letter as follows:

Most recently, on February 4, after making sure to alert the media, Arpaio reportedly paraded approximately 200 suspected illegal immigrants in shackles to a segregated area of his "tent city" county facility, where they will supposedly remain until they are adjudicated and have served any sentences they face for local violations. The New York Times described this conduct as "ritual humiliation." The men who Arpaio is displaying like trophies are reportedly in pretrial detention, not having been convicted of any crime.

If you want to understand the true extent of Sheriff Joe’s war on brown people, the Phoenix New Times’ expose "Guadalupe Made It Clear That Joe Arpaio’s Attacking Anyone With Brown Skin" is an absolute must read. Seriously, it is a long piece, but to call it chilling and important would be an understatement, and it is superb start to finish. Here is a taste:

With spirited protesters and helmeted deputies on horseback, the night of April 3 in Guadalupe was like some historical reenactment, albeit in miniature, of a late-’60s anti-war melee. You know, the kind chronicled by Norman Mailer in one of his seminal "non-fiction novels" of the era, such as Miami and the Siege of Chicago or The Armies of the Night.

Following up on his criticism of Arpaio during a César Chávez luncheon in March, Phoenix Mayor Phil Gordon addressed a letter to the U.S. Justice Department asking for an investigation of the sheriff. The letter was dated April 4, the second day of the MCSO’s Guadalupe sweep, and the MCSO’s actions in Guadalupe figured prominently in the missive.

Egregious to be sure, but hardly the only such acts by Arpaio, and certainly not the worst. Let’s go through some of the others alluded to in the letter, although not described in detail.

Arpaio was little more than halfway through his first term in office when his policies and jail conditions first came under investigation for abuse by the US Department of Justice. Shortly after that, and still during his first term in office, young Scott Norberg died in Arpaio’s jail as a result of said policies:

[Norberg] was in Arpaio’s jail just 15 hours before he was handcuffed by guards, kicked, stomped on, and then strapped into a restraint chair. There, guards held a towel over his head, literally suffocating him. Medical records later revealed that he had been shot with a stun gun at least 14 times and beaten so badly that his larynx cracked.

That one cost the taxpayers of Maricopa County $8.25 million, but did not deter the Most Abusive Sheriff in America; instead, he seemed to get off on the notoriety. There were more unnatural deaths in Arpaio’s jails, from a variety of causes, after Norberg. The belligerent Arpaio finally stopped the deplorable use of the restraint chair in 2006 after fighting demands by citizens and federal overseers on the issue for nearly a decade.

What caused Arpaio to finally give up his demonic obsession with the restraint chair that killed Scott Norberg? Ah, glad you asked:

On March 29, 2006, a $9 million court judgment was leveled against Arpaio and the county in the beating and restraint-chair death of inmate Charles Agster III.

Agster, 33 and mentally retarded, was arrested for trespassing on August 6, 2001. Detention officers at the Madison Street Jail pulled a hood over his head and slammed him into a medieval-looking restraint chair. The hood around Agster’s throat smothered him to the point that he became brain dead. He was pronounced legally dead three days later on August 9, 2001.

Agster’s death should have been prevented. Two years before he was killed, the county had paid $8.25 million to settle the Norberg suffocation suit.

There was at least one more death at the restraints of Arpaio’s cherished chair, Clint Yarborough in 2005. It should be noted that neither Norberg, Agster, nor Yarbrough were ever tried or convicted for the charges they were arrested on; none of them lived to see their first court date and died innocent men under the law. Those are just the deaths associated with the medieval restraint chair, there have been numerous deaths from improper or complete lack of medical care, neglect and other perils.

One of the other examples of the decrepit conditions Arpaio presided over is that of Kathleen Carey:

Like most attorneys, Kathleen Carey leads a busy life. So she didn’t take much time to examine what looked like a pimple on her arm. Twelve days later, Carey’s arm had ballooned to nearly twice its normal size, and pus was oozing from a boil where the zit had been.

After $180,000 in medical bills, four doctors, and two hospitals, Carey learned that the supposed pimple was actually the flesh-eating "superbug" bacteria commonly known as MRSA staph infection. You may recognize MRSA from recent news reports, following a study concluding that more Americans die each year from antibiotic-resistant MRSA infections than from HIV/AIDS.

MRSA commonly spreads through hospitals, but Carey hadn’t been to a hospital or doctor for months before her infection. So where did she get the potentially fatal infection?

Carey says she knows exactly where she got it — the Maricopa County Jail. She wasn’t there as an inmate, but as an attorney visiting her client.

Carey is one of many Maricopa County residents who’ve never been booked into Sheriff Joe Arpaio’s jails but who are paying dearly for conditions inside his lockups.

Vermin, filth, medical care suggestive of POW camps, chronic mismanagement, the wanton destruction of records, and a steady parade of corpses in Maricopa County jails have cost taxpayers an astonishing — and until now, undisclosed — 41.4 million dollars.

Don’t know if you caught that or not, but that is nearly $42 million dollars (and that was as of over a year ago, the figure is now higher) that Maricopa County has paid out due to the Most Abusive Sheriff in America’s detention policies and procedures. Want to know how that compares to other big municipalities? Get a load of this:

There simply isn’t another jail system in America with this history of taxpayer-financed litigation.

New York City, Los Angeles, Chicago, and Houston, for example, collectively housed more than 61,000 inmates per day last year. From 2004 through November of this year, these same county jails had a combined 43 prison-conditions lawsuits filed against them in federal courts.

In the very same three-year time frame, despite housing a mere 9,200 prisoners per day, Sheriff Arpaio was the target of a staggering 2,150 lawsuits in U.S. District Court and hundreds more in Maricopa County courts.

With a fraction of the inmate population, Arpaio has had 50 times as many lawsuits as the New York, Los Angeles, Chicago, and Houston jail systems combined.

But Sheriff Joe’s reign of terror does not end with the immigrant bashing and inhuman detention policies and facilities. When the Most Abusive Sheriff in America disagrees with colleagues, even fellow police officers, he attacks them with not only rhetoric, but the heavy dark hand of his department:

The sheriff raided municipal buildings in Mesa in what appeared to be nothing more than a blatant political maneuver against Arpaio’s perceived enemy, Mesa Police Chief George Gascón.

As a public safety effort, the pre-dawn October 16 incursion into Mesa City Hall and its library was laughable — it netted just three undocumented workers. A couple of former county Superior Court judges criticized Arpaio’s action in the East Valley Tribune, with former chief judge of the court Colin Campbell calling the raid "bizarre" and "extraordinary."

Last, but far from least, Sheriff Joe has waged a jihad against the local investigative weekly newspaper in Phoenix/Maricopa County, the Phoenix New Times. Arpaio long felt the New Times coverage of him was too strident; not content to address his concerns in the media and public sphere, Arpaio arrested the publishers, Michael Lacey and James Larkin, on trumped up asinine charges (that were almost immediately dismissed without ever seeing the light of a courtroom). However, if you cherish the First Amendment and the freedom of the press, Larkin and Lacey’s arrests by Arpaio were not even the worst part.

In a breathtaking abuse of the United States Constitution, Sheriff Joe Arpaio, Maricopa County Attorney Andrew Thomas, and their increasingly unhinged cat’s paw, special prosecutor Dennis Wilenchik, used the grand jury to subpoena "all documents related to articles and other content published by Phoenix New Times newspaper in print and on the Phoenix New Times website, regarding Sheriff Joe Arpaio from January 1, 2004 to the present."

Every note, tape, and record from every story written about Sheriff Arpaio by every reporter over a period of years.

In addition to the omnibus subpoena, which referred to our writer Stephen Lemons directly, reporters John Dougherty and Paul Rubin were targeted with individual subpoenas.

More alarming still, Arpaio, Thomas, and Wilenchik subpoenaed detailed information on anyone who has looked at the New Times Web site since 2004.

Every individual who looked at any story, review, listing, classified, or retail ad over a period of years.

The article the passage immediately above was quoted from, "Breathtaking Abuse of the Constitution", was written personally by the two publishers, Mike Lacey and Jim Larkin, and is as chilling as was Arpaio’s attempt to silence them. Again, it is a feature length article, but a serious must read.

This post could easily be three or four times the already tedious length and still not have room to touch on the bill of craven particulars against the Most Abusive Sheriff in America, Joe Arpaio. But it is a start, and renders an idea as to why Chairman Conyers, Representative Nadler and the others on the House Judiciary Committee have requested the civil and criminal powers of the United States Government be brought to bear on Joe Arpaio. He isn’t the toughest, he’s the most abusive. It is imperative that Attorney General Holder and DHS Secretary Napolitano heed the call and address the long overdue matter. Secretary Napolitano, of all people, ought to understand the menace to society as a whole, and the citizenry of Maricopa County in particular, that Arpaio poses. It is time for it to be stopped.

People Might LIKE Haggis, But They Don’t Want to Eat It

Normally, I leave the off-season Senate race tracking to the Senate Guru. But he points to a wacky poll on Arlen "Scottish Haggis" Specter that I thought worth sharing.

Pennsylvania voters approve 56 – 30 percent of the job Sen. Arlen Specter is doing, with Democratic approval at 62 – 26 percent, higher than the Republican support of 55 – 33 percent and 49 – 35 percent backing from independent voters.

But by a narrow 43 – 40 percent margin, voters say Sen. Specter does not deserve to be reelected. Republicans split 42 – 42 percent, as do Democrats 41 – 42 percent, while independent voters say no 45 – 36 percent.

"Pennsylvania voters are sharply divided over whether Sen. Arlen Specter should be reelected next year, with Republicans almost as negative as Democrats, probably because the GOP Senator is one of only three from the party supporting President Barack Obama’s Stimulus Package," Richards said.

"But Specter always has been politically controversial and has needed votes from both parties to stay in office."

So Pennsylvanians like their "offal" Senator (I just know I’m going to catch heat from my PA relatives for that), but they don’t necessarily want him re-elected. Specifically, Democrats approve of Specter, as do Republicans (but much less so).

Most interesting, though, this archetypal representative of the mushy middle really doesn’t excite Independents–precisely the group that such mushy middle-dom is supposed to entice. 

What would David Broder say?


I avoided today’s debate on the simulus package (I shouldn’t have, because real Dems actually spoke, unlike last night, but I had to make an apple pie for mr. ew). But both in last night’s "debate" and the media today, it’s clear Republicans are pushing one meme above all others.

In spite of the fact that this bill was heavily crafted by Susan Collins, has the support of Arlen "Scottish Haggis" Specter, and probably Olympia Snowe, Republicans claim, it’s not a bipartisan bill. Whereas having Sanctimonious Joe vote with Republicans two years ago qualified as a bipartisan bill, this one doesn’t because, they say, they were locked out of the room where this was crafted. (In reality, a bunch of "moderates" left on their own accord, but truth is not a Republican strong point.)

But that’s not the most offensive part of their claim that this is not a bipartisan bill. AFAIK, Tom Coburn’s amendment remains a part of this bill, which basically prohibits these funds from going to support things like museums and parks.

Tom Fricking Coburn, one of the most conservative members of the Senate, has contributed to this bill. But that doesn’t qualify it as a bipartisan bill, for these fuckers.

And that’s not all. As Lithium Cola points out, using the work of Haley Edwards, the reason the Senate had to cut education and funds for states and Head Start is because Chuck Grassley insisted on putting the annual patch for the Alternative Minimum Tax in this stimulus package.

Haley Edwards at the Columbia Journalism Review points out a big part of why the Senate version of stimulus bill was more expensive than the House version and so "needed" to be cut back by scrapping projects to build schools and so on. The House version didn’t include the standard annual modification of the Alternative Minimum Tax, and the Senate version does.

But why, you might ask, is the Senate package so much more expensive than the House bill?

It’s got much to do with a single $64 billion tax cut benefitting the wealthiest 20 percent of Americans—a fact that was largely buried in reporting about the squabbling over which spending programs to cut.

Haley adds, "that’s one of the reasons why the House’s stimulus measure seemed to be $80 billion dollars cheaper than the Senate’s. It was really only about $30 billion cheaper—after you subtract the $64 billion revenue loss that happens every year when lawmakers curtail the scope of the AMT."

This raises an interesting question. Why is the usual AMT alteration being shoved through by the Senate as part of the stimulus package? Back on January 28 the Wall Street Journal noted:

The Obama administration indicated it would agree to a $69 billion Senate proposal to shield tens of millions of middle-income Americans from the so-called alternative minimum tax, a priority of Iowa Sen. Charles Grassley, the top-ranking Republican on the Senate Finance Committee. The panel later folded the change into the Senate bill.

Although it is standard in the tradmed to say that the AMT benefits "millions of middle-income Americans," it is to put it mildly stretching things to put it that way. Haley points to a study at the Tax Policy Institute which shows that slashing the AMT increases the incomes of Americans in the top quintile by 1.3%, Americans in the next-highest quintile by .7%, the middle quintile by .1%, and does nothing at all for Americans in the bottom 40% of incomes. 

Chuck Grassley … Chuck Grassley … not as reactionary as Tom Coburn, sure, but last I checked he’s a Republican too. So Grassley is responsible for putting in a benefit for the upper middle class which led to the removal of things that benefit children and cash-strapped states. And most of those cuts were done at the direction of moderate-but-still-solidly Republican Susan Collins.

Tom Coburn, Chuck Grassley, and Susan Collins. They’re the ones responsible for the way this bill looks. 

And fricking Coburn and Grassley won’t even have the decency to vote for their own handiwork. That’s the new definition of "bipartisan": three Republicans screw with a bill, and in the end, only one of them even votes for it.

Feingold Sez: No More Clusterfuck Senate Appointment Processes

Talk about a good way to capture the sentiment of a lot of fed up people:

Feingold to Introduce Constitutional Amendment Ending Gubernatorial Appointments to Senate Vacancies 

Washington, D.C. – U.S. Senator Russ Feingold, Chairman of the Senate Judiciary Subcommittee on the Constitution, issued the following statement today on plans to introduce an amendment to the U.S. Constitution to end appointments to the Senate by state governors and require special elections in the event of a Senate seat vacancy.

The controversies surrounding some of the recent gubernatorial appointments to vacant Senate seats make it painfully clear that such appointments are an anachronism that must end.  In 1913, the Seventeenth Amendment to the Constitution gave the citizens of this country the power to finally elect their senators.  They should have the same power in the case of unexpected mid term vacancies, so that the Senate is as responsive as possible to the will of the people.  I plan to introduce a constitutional amendment this week to require special elections when a Senate seat is vacant, as the Constitution mandates for the House, and as my own state of Wisconsin already requires by statute.  As the Chairman of the Constitution Subcommittee, I will hold a hearing on this important topic soon.

The Reid/Durbin Fabrication On Burris

burris1thumbnail.thumbnail.jpgBy now you know how poorly Harry Reid and Dick Durbin have played their aces and eights hand on the Roland Burris appointment to Barack Obama’s former Senate seat. Reid and Durbin went all in with their chips on the Illinois Secretary of State and, predictably, lost their pleated dandy shirts.

Illinois law and the Constitution have always been contra to Reid and Durbin’s intransigence on Burris, but the disingenuous duo have always fallen back on their precious ancient Senate Rule II. They have steadfastly portrayed themselves as honorable protectors of the high ground of ethics, and citizens and the rubes in the media have bought off on it. To wit, Durbin grandly proclaimed late Friday:

…the Senate seat could remain vacant until Blagojevich is removed from office and the lieutenant governor takes over, making a fresh appointment.

He said the Senate cannot waive a 125-year-old rule requiring the signatures of both the governor and the secretary of state on any election or appointment.

Now, it is hard to tell whether these lustrous paragons of virtue are being intentionally dishonest, or are simply tragically ignorant of the questionable foundation of the argument they rely on. But it is one or the other. First off, as Jane pointed out Friday,

the 1884 Senate rule Durbin and Reid rely on was promulgated before the passage of the 17th Amendment as well as before the Supreme Court decision in Powell v McCormack. Reid and Durbin are duplicitous in thinking their antiquated Senate rule trumps the official selection pursuant to the 17th Amendment and Illinois statutory law.

So, there is that. But, guess what? After all this, it turns out the vaunted Senate Rule II isn’t even the bright line mandate they have been stating. In fact, Senate Rule II is simply an antiquated suggestion for a document template. While subparagraph 2 of Rule II mandates that the Secretary of the Senate keep a journal of all certificates signed by the governor and secretary of state of the appointing electing and/or appointing state for each Senator, the operative language on the form of the certificate is, contrary to what Reid and Durbin have been stating, not mandatory in the least. From the official Senate Rules:

3. The Secretary of the Senate shall send copies of the following recommended forms to the governor and secretary of state of each State wherein an election is about to take place or an appointment is to be made so that they may use such forms if they see fit. (emphasis added)

So, not only has any "mandatory" effect of Rule II been modified and/or abrogated by the 17th Amendment and Powell v. McCormack, but the thing is suggestive at best in the first place.

But, wait, there’s more! The Senate Pinocchios are at it again when they say the Senate "cannot waive" strict compliance with, and that there has never been any diversion from, Senate Rule II. Indeed, the Senate has done just that, and quite recently too. And it was in another case of a highly dubious cronyish appointment in a hotbed of corruption state. Yep, it’s our old friends in Alaska. Go figure.

When Frank Murkowski was elected Governor of Alaska in 2002, he resigned his Senate seat and appointed his daughter Lisa to fill the seat. There was no countersignature from the Alaska Secretary of State on the appointing certificate. There couldn’t be, because Alaska is one of six states that do not have a Secretary of State. Now, in fairness, there is reason to believe the Alaska Lieutenant Governor countersigned Murkowski’s nepotistic appointment certificate; however, the episode is proof of the complete intellectual dishonesty of the position that Reid and Durbin have been publicly peddling. If the Senate can accept the technically non-compliant countersignature of a Lt. Governor, exactly how do Reid and Durbin intend to refuse the word of the Illinois Supreme Court and the independent acknowledgement of authenticity just supplied by the actual Illinois Secretary of State?

There is not one single aspect of this imbroglio in which Roland Burris, and master tormenter Blagojevich, have not handed Reid and Durbin their rear ends on a silver platter. Now it turns out even their vaunted fallback is founded on vapor. It is time for them to quit while they are only terminally behind.

The Constitution and Roland Burris

USA Today relates that Harry Reid and the Senate Democrats have, predictably, caved:

Senate Democrats will allow Roland Burris to take the seat vacated by President-elect Barack Obama, the Associated Press reports.

this has been an Emptywheel Breaking News Update. Now back to your previously scheduled programming, er post, which describes exactly why Reid, Obama and the Senate Dems have engaged in one of the worst opening acts for an incoming US Congress ever. Fools on the Hill they are.

Roland Burris went to the hill in Washington DC Tuesday to claim the Senate seat he has been appointed to; but, as Jane Hamsher reports:

The Secretary of the Senate turned Burris away.

Chris Cilizza is on my teevee saying "everything in the Senate is like high school."

No kidding. The optics of this are just awful.

Harry Reid and Senate Democrats, not to mention Barack Obama, have indeed ginned up an extremely ugly mess with their anti-Burris, at all cost, stance; but, as I have been pointing out from the start (see here and here), their little passion play is also unconstitutional. Preeminent Constitutional scholars Bruce Fein and Erwin Chemerinsky agree.

Many people have argued that the Constitution, specifically Article I Section 5, gives Reid, Obama and the Senate Dems the leeway they need to exclude Burris. Not so fast says Fein:

In Powell v. McCormack (1969), the United States Supreme Court held that under Article 1, section 5, "in judging the qualifications of its members, Congress is limited to the standing qualifications [age, citizenship and residency] prescribed in the Constitution." The court made no distinction between representatives and senators, or between elected or appointed members of Congress. Speaking for the court, Chief Justice Earl Warren (whom President-elect Barack Obama admires) amplified that James Madison, father of the Constitution, and Alexander Hamilton in the Federalist Papers, were emphatic that Congress could not erect qualifications beyond the constitutional floor. Madison argued at the Constitutional Convention that it would be "an improper and dangerous power in the Legislature. The qualifications of electors and elected were fundamental articles in a Republican Gov’t and ought to be fixed by the Constitution. If the Legislature could regulate those of either, it can by degrees subvert the Constitution." Hamilton echoed: "The qualifications of the persons who may choose or be chosen … are defined and fixed in the Constitution, and are unalterable by the legislature."

I know nothing of Roland Burris, in fact had never heard of him prior to this affair. I wish the vacancy of Illinois’ junior Senate seat could have been resolved much more cleanly, but Fein, and the authorities he cites, are dead on correct.

Oh, and Bruce has a bit to say about Harry Reid’s charade Tuesday morning wherein he had the Secretary of the Senate deny Burris’ credentials:

Democrats plan to exclude Mr. Burris by enforcing a rule requiring that credentials presented by incoming senators be countersigned by both a state’s governor and secretary of state. The rule, however, is unconstitutional as applied to senators from states that do not require countersignatures. The Illinois secretary, Jesse White, has asserted that he will not sign Mr. Burris’ documents, but it is unclear whether Illinois law requires that endorsement or whether it may be arbitrarily withheld – questions currently before the Illinois Supreme Court.

If the countersignature strategy fails, Democrats plan to raise an objection to Mr. Burris’ swearing in on the Senate floor and have his qualifications referred to the Rules Committee for up to 90 days. Democrats hope Mr. Blagojevich would have then been replaced by Mr. Quinn, who would be expected to revoke Mr. Burris’ appointment.

Neither of these maneuvers to block Mr. Burris’ appointment enjoys a crumb of legal constitutional standing.

Professor Erwin Chemerinsky, dean of the University of California Irvine Law School, concurs in every aspect of Fein’s analysis (as well as mine) and states:

The problem here is that Burris unquestionably was lawfully selected. According to the 17th Amendment, "When vacancies happen in the representation of any state in the Senate, the executive authority of such state shall issue writs of election to fill such vacancies." Illinois law gives this power to the state governor, and that is Blagojevich until he is impeached and found guilty.

Allowing the Senate to exclude Burris on any except the narrowest of grounds would create a dangerous precedent. It could open the door to the Senate or the House overturning the will of the people and excluding representatives under one or another pretext. If Burris — whose appointment meets the legal test, no matter what you think of Blagojevich — is not seated, other properly elected (or appointed) representatives also are at risk.

The Supreme Court’s conclusion could not be clearer or more on point: "In short, both the intention of the framers, to the extent that it can be determined, and an examination of basic principles of our democratic system persuade us that the Constitution does not vest in the Congress a discretionary power to deny membership by a majority vote."

Again, it may be uncomfortable, but this is exactly right. Has the irrefutable logic of the full panoply of legal authorities started to sink in to the high and mighty Democratic Senators who have feigned such outrage (shock I tell you, shock) at the thought of kindly 71 year old Roland Burris actually sitting with them in the august trappings of the ultimate club? At first blush, it appears that it may have. From the New York Times:

Mr. Burris, who was rebuffed by the Senate clerk earlier in the day, gained the support of Senator Dianne Feinstein of California, the chairman of the Rules Committee, who broke with many of her Democratic colleagues and said that Mr. Burris should be seated despite having been appointed by Gov. Rod R. Blagojevich, who is facing corruption charges.

Regardless of the charges against him, the governor still has the right to fill the Senate vacancy, Ms. Feinstein said, and keeping Mr. Burris from taking his seat could have implications for appointments by other governors.

Now, of course, it is pretty good odds that Dianne Feinstein’s sudden conversion to the Burris point of view (she was one of the fifty original signatories on Reid’s initial anti-Roland Burris letter) is just catty payback to Obama for snubbing her on the Leon Panetta CIA Director appointment heads up, but it is what it is. In a hilarious sidelight, the Times gave an indelible example of the perils of stripping down your reporting and research staff to cut costs when they reported:

Ms. Feinstein’s support is important because her committee has a say in whether Mr. Burris is qualified to serve.

Ahem, crack NYT reporters Carl Hulse and David Stout might want to take a look at the new configuration for the Senate for the 111th Congress that has Senator Feinstein as chair of the Senate Select Intelligence Committee, not the Rules Committee, her former post and which would have been critically involved in potential Burris fights carried on by Harry Reid. The Intel Committee, not so much. Nice angle while it lasted I guess, eh boys?

Back to the point, however, it is not just Constitutional scholars backing up the legitimacy of Burris’ appointment from the outside, he has one inside, on his legal team, too. Former Baltimore Mayor, Rhodes Scholar and current Provost and Dean of Howard University Law School Kurt Schmoke. Kurt is one tenacious and brilliant advocate, and is representing Roland Burris. Schmoke and Burris’ other lead attorney, Tim Wright, appeared Tuesday on MSNBC’s Hardball and made it quite clear that Burris will not back down and will not be intimidated by Harry Reid, Obama and the rest of the politically self serving Democratic Senators. The Burris team knows they have the legal and Constitutional arguments in their favor and they appear ready to back up their claims.

Irrespective of what one thinks of Mr. Burris, the more important principle by far is adherence to the letter and intent of the Constitution, as well as deference to the individual states’, in this case Illinois, right to determine their own succession. As Fein notes:

The Senate leadership – both Majority Leader Harry Reid, Nevada Democrat, and Minority Leader Mitch McConnell, Kentucky Republican – are committed to flouting their constitutional obligation to seat Sen.-designate Burris. President-elect Obama, a former professor of constitutional law at the University of Chicago, concurs in their lawlessness. Political expediency is their common North Star.

Neither of these maneuvers to block Mr. Burris’ appointment enjoys a crumb of legal constitutional standing. That Mr. Blagojevich was under a dark criminal and impeachment cloud when he elevated Mr. Burris is beside the point. President William Jefferson Clinton did not forfeit his power to appoint, sign legislation or negotiate treaties during his impeachment ordeal. And Democrats are not questioning Mr. Blagojevich’s general authority to discharge his gubernatorial responsibilities until or unless he is impeached, convicted and removed from office. Mr. Burris’ appointment has been made a lone exception for partisan political reasons, simpliciter. (emphasis added)

The extra-constitutional stance of Reid, Obama and the Senate Dems, out of sheer political expediency, sets a horrible standard, ripe for future abuse and mischief. Erwin Chemerinsky explains why:

Allowing the Senate to exclude Burris on any except the narrowest of grounds would create a dangerous precedent. It could open the door to the Senate or the House overturning the will of the people and excluding representatives under one or another pretext. If Burris — whose appointment meets the legal test, no matter what you think of Blagojevich — is not seated, other properly elected (or appointed) representatives also are at risk.

But the taint of Blagojevich’s alleged crimes does not justify ignoring the Constitution. For the last eight years, the Bush administration has ignored or twisted the Constitution to serve what it believed were higher ends. It would be an enormous mistake, as a new administration prepares to take charge, for Democrats to send the Senate down that same path. (emphasis added)

Once again, as painful as it may be, the Constitutional experts have hit the nail on the head here: Roland Burris and his esteemed legal team are correct; Burris is entitled to his seat in the United States Senate. On a positive note, with Inhofe, Cornyn and Kyl still around, Roland Burris will be far from the worse the Senate has to offer; and, unlike his new friend Dianne Feinstein, he hasn’t personally underwritten the evisceration of the Fourth Amendment and establishment of a US torture regime. So he’s got that going for him.


From WGN in Chicago Breaking News Desk:

Illinois Secretary of State Jesse White said this morning he has been made "the fall guy" by the U.S. Senate, which he said is using him as an excuse not to seat Roland Burris.

"They could have seated him without my signature; my signature is not required," he told WGN-720AM’s John Williams.

The Senate barrred Burris Tuesday, saying he lacked proper credentials in that his appointment was not signed by White.

But White said today that "my signature is mostly ceremonial, rather than a point of law."

"They played a little bit of a game with him [Burris] yesterday," he added.

Asked by Williams if he had been made "the fall guy," White responded: "You’re absolutely correct."

(For the full interview (audio), click here.)

White said he had pledged, shortly after Gov. Rod Blagojevich was accused of trying to make a deal for his appointment to the Senate seat, not to sign off on anyone selected by Blagojevich. And he said he will continue to honor that pledge unless ordered otherwise by a court.

Yet at the same time he said he thought Burris should be admitted to the Senate and said he had the highest possible regard for him. He predicted Burris eventually will be seated.

If that is not about the last nail in the coffin of political opportunist shame for Harry Reid, the self important elitist Senate Democrats and, maybe worst of all, supposed Constitutional authority President-Elect Barack Obama, it is hard to imagine what would be. Real men of political genius.

Reid On Tape Manipulating Illinois Senate Seat Before Blago's Arrest

Thursday I described The Ugly Legal Optics Of Harry Reid’s Burris Battle. There is a new cloud dimming the already ugly optics. An article that just hit the website of the Chicago Sun Times reports Harry Reid already had his heavy ham fisted hand deep in Illinois state politics well before Blagojevich was arrested:

Days before Gov. Blagojevich was charged with trying to sell President-elect Barack Obama’s U.S. Senate seat to the highest bidder, top Senate Democrat Harry Reid made it clear who he didn’t want in the post: Jesse Jackson, Jr., Danny Davis or Emil Jones.

Rather, Reid called Blagojevich to argue he appoint either state Veterans Affairs chief Tammy Duckworth or Illinois Attorney General Lisa Madigan, sources told the Chicago Sun-Times.

Sources say the Senate majority leader pushed against Jackson and Davis — both democratic congressmen from Illinois — and against Jones — the Illinois Senate president who is the political godfather of President-elect Barack Obama — because he did not believe the three men were electable. He feared losing the seat to a Republican in a future election.

This is certainly a stunningly rich development from about every perspective imaginable. Harry Reid has threatened to use the Capitol Police to forcefully haul Roland Burris off the Senate floor should he try to enter because he feels Burris is tainted by Blagojevich’s shady machinations of the open Senate seat. Only it turns out that Reid is the one smack in the middle of Blago’s machinations, not Burris. And it would appear he is on Pat Fitzgerald’s wiretaps doing so.

Blagojevich spokesman Lucio Guerrero confirmed that Reid (D-Nev.) and U.S. Sen. Robert Menendez (D-N.J.) — the new chief of the Senate Democratic political operation — each called Blagojevich’s campaign office separately Dec. 3. Sources believe that at least portions of the phone conversations are on tape.

Before their contacts, Obama’s chief of staff Rahm Emanuel called Blagojevich to tell him to expect to hear from Senate leadership because they were pushing against Jackson and others, according to statements the governor made to others.

The Reid-Menendez calls came a day before a Dec. 4 conversation overheard on government wiretaps where Blagojevich says he “was getting ‘a lot of pressure’ not to appoint Candidate 5.” Candidate 5 is Jackson.

Did I mention that this is a nightmare from every available tangent? Not only is Harry Reid on tape with his finger stuck in the Illinois state pie, we now have Rahm Emanuel, the President-Elect’s Chief of Staff, running flak for Reid’s heavy handed interposition. Now it is certainly understandable that Emanuel and his boss, Obama, would have interest in Obama’s former Senate seat; but, again, the appearance here is unseemly at best.

That said, the main story for the moment is Harry Reid and the Senate leadership. There is no basis for believing Harry Reid is a racist, or that his actions here are particularly racially motivated, but it is no longer possible to dismiss the overtones that the picture must be starting to paint for some African American citizens in Illinois. Reid has been steadfastly determined to block the appointment of three black elected politicians – Emil Jones, Danny Davis and Jesse Jackson, Jr. because they are supposedly "not electable"; in favor of a white woman, Tammy Duckworth who has, you know, been previously found unelectable by the voters of Illinois. Or another white woman, Lisa Madigan, who managed to get elected mostly on the coattails of her powerful Chicago machine daddy. Lovely; what a picture that paints.

Oh, and now that nice gentlemanly 71 year old Roland Burris, another black man, who has previously been elected to statewide office in Illinois, can’t be permitted in the hallowed Senate doors either. George Wallace must be laughing his butt off at Reid’s bad optics and unseemly folly. And this is all occurring over the seat of the only black man in the lilly white United States Senate that was just vacated by the groundbreaking President-Elect Barack Obama. Malignant idiocy abounds.

Harry Reid will be the featured guest on Meet the Press Sunday morning. Jane Hamsher has already raised the curious difference between how Reid and the Democratic leadership has treated Roland Burris and how they handled and accepted Joe Lieberman, Harriet Miers, Karl Rove, Ted Stevens and Larry Craig, or for that matter the evisceration of Habeas Corpus, the Fourth Amendment and the Geneva and UN Conventions against torture. No moral leadership whatsoever was shown on any of those; anybody think it will occur to self aggrandized inquisitor David Gregory to examine Harry Reid over the discrepancy?

I’m taking odds, because I don’t think David Gregory has the journalistic chops or the moral guts to ask the hard questions that have been asked here. Any takers?

The Ugly Legal Optics Of Harry Reid's Burris Battle

Earlier this morning, Jane wrote a fantastic post, "Burris and Blago: What Happens Now?", that lays out most all of the concerns with the obstreperous position taken by Harry Reid and the Democratic leadership. I would like to follow up on a couple of legal points inherent in the discussion.

Illinois Secretary of State Jesse White: As you have probably heard, Illinois Secretary of State Jesse White has refused to certify Blagojevich’s appointment of Roland Burris. The problem I see with this is that there is no legal basis whatsoever for SoS White’s conduct in this regard.

White appears to be abrogating Illinois law all by himself, and he simply does not have the power to do that. Signing the certification is a ministerial act, not an established right of veto. The decision on who to appoint is the governor’s and the governor’s alone under Illinois law; there is no power promulgated for the SoS to have decision making authority. If White can simply refuse to sign the certification, and that stops the process in it’s tracks, he would have unmitigated veto power over the appointment. He does not.

Burris has obviously figured this out and has brought action demanding the Secretary of State endorse the certification.

Burris’s lawyers argued that White’s duties are strictly ministerial and that he doesn’t have the discretion to withhold his certification of Blagojevich’s selection.

“Any additional state requirement that Roland Burris must seek or obtain approval of the secretary of state to qualify as U.S. senator would be unconstitutional,” Wright said in the filing.

Whether you like Burris or not, whether you despise Blagojevich or not, Burris has now been duly appointed by a sitting governor; his appointment, absent evidence to the contrary, is valid on its face. White should sign the certification forthwith, refusal to do so is outside of his authority and is costing the citizens of Illinois valuable court time, resources and money; effectively a breach of White’s fiduciary duty to the state.

Harry Reid has lobbied against Illinois having a special election to fill Obama’s Senate seat, which they could easily hold concurrent with the election they will be forced by law to have for Rahm Emanuel’s open seat in Illinois’ 5th district. Reid is likely personally responsible for there being no opportunity for the public to vote on the next senator; now Reid is urging extra-legal (effectively ultra-vires) action by Illinois. He should butt out.

Powell v. McCormack: But wait, there is more! Yep, Harry Reid, who couldn’t be bothered to bring his legislative acumen to bear to protect the 4th Amendment in the FISA battle, is now going to expend every inch of his soul, including having capitol police physically restrain a duly appointed black man from taking his seat in the Senate. Again, simply brilliant optics. Or not; really not. As Jane indicated, there are basically two views on the propriety of this blocking action, that is not viable (the "Lemieux position") and that it is complicated, but viable (the "Balkin position").

I have read both Balkin and Lemieux. In my somewhat suspect eyes, Lemieux has the, by a good measure, more legally sound take. Doesn’t mean a more contrived view like Balkin’s won’t carry the day if this matter is litigated; but I sure think Lemieux’s is a lot cleaner and truer to Powell v. McCormack and the Constitutional intent.

…missed in many discussions about the Burris appointment is the fact that the Senate is probably unable to prevent him from being seated as a matter of constitutional law. The Supreme Court ruled 8-1 (and 8-0 among justices deciding on the merits) in Powell v. McCormack that "in judging the qualifications of its members, Congress is limited to the standing qualifications prescribed in the Constitution." It is possible to distinguish the cases — the fact that Burris is appointed obviously mitigates the problems with Congress interfering with the integrity of elections that Douglas discusses in his concurrence. Still, the bottom line of Warren’s majority opinion is unequivocal and directly on point; if Burris were to litigate an exclusion a lower court would almost certainly rule in his favor, and I doubt that the Supreme Court would overrule. The Senate could expel him after seating with a 2/3 majority, but (absent strong evidence that Burris obtained the appointment illegitimately) this seems unlikely. Reid’s remedy is likely to be to prevent him from joining the Democratic caucus.

Again, we don’t have to like it, but the better take on the law rests with Burris being seated pursuant to his appointment. If there is no evidence of corruption or wrongdoing with his appointment process (and acts he took that you disagree with when he was previously in elected office do not count in that consideration), and there is none I have seen, Burris ought to be seated so that Illinois is fully represented and so that Democrats have a full complement of Senators for the difficult work that will start on January 20. Harry Reid is making an ass out of himself and Democratic Leadership (to the limited extent there actually is Democratic Leadership).

You have to hand it to Reid, though — managing to look less responsible and likable than Rod Blagojevich is a very impressive feat of sheer political incompetence.

Rahm and “that 5th CD Thing”

At his shiny new shack out back of the Big Orange Satan, Kagro X links to this article describing how Rahm is uninvolved (publicly at least) in the fight to replace him.

Rahm Emanuel’s role in attempting to influence Gov. Blagojevich’s choice of a U.S. Senate replacement for President-elect Barack Obama could impact the heated race to fill another important vacancy: Emanuel’s own seat in Congress.

Ald. Pat O’Connor (40th), Mayor Daley’s unofficial City Council floor leader, had hoped to emerge from the crowded field of candidates in the 5th Congressional District by winning Daley’s support and by persuading Emanuel to use his formidable powers of persuasion to clear the field.

But now that the Chicago Sun-Times has lifted the veil on Emanuel’s efforts to persuade Blagojevich to appoint Obama family friend Valerie Jarrett to the U.S. Senate, Emanuel has — as one veteran ward boss put it — "gone underground."

The new White House chief of staff is reluctant to get involved in the 5th District race, which has attracted more than two dozen candidates.

Of course, the Sun-Times presents this as a reaction to the news that Rahm was involved in discussions over Obama’s seat.

But I would suggest that it’s one more piece of evidence that suggests Rahm was involved in discussions–real or imagined–over his own seat.

After all, aside from calling the Special Election, Blago is not involved in this election: Richard Daley is the kingmaker here, not Blago. So why would Rahm’s involvement in discussions about the Senate seat prevent him from getting involved in discussions about his own seat?

As I’ve discussed, there’s evidence that Rahm and Blago (or Rahm and Blago’s flunkies) talked about more than the Senate seat.  The only mention of Rahm in the complaint, after all, includes this passage:

On November 13, 2008, ROD BLAGOJEVICH talked with JOHN HARRIS. ROD BLAGOJEVICH said he wanted to be able to call “[President-elect Advisor]” and tell President-elect Advisor that “this has nothing to do with anything else we’re working on but the Governor wants to put together a 501(c)(4)” and “can you guys help him. . . raise 10, 15 million.” ROD BLAGOJEVICH said he wanted “[President-elect Advisor] to get the word today,” and that when “he asks me for the Fifth CD thing I want it to be in his head.” (The reference to the “Fifth CD thing” is believed to relate to a seat in the United States House of Representatives from Illinois’ Fifth Congressional District. Prior intercepted phone conversations indicate that ROD BLAGOJEVICH and others were determining whether ROD BLAGOJEVICH has the power to appoint an interim replacement until a special election for the seat can be held.). [my emphasis]

Blago’s statements here may have been entirely delusional. But in mid-November, at least, Blago believed that Rahm was going to come to him with a specific ask regarding his own seat–not Obama’s.

Now that doesn’t mean that Rahm actually did make a request of Blago. Nor does it mean that, if there was a request, there was anything improper about it. 

But even what we see in the complaint shows evidence that Blago thought he had something of value to give wrt the House seat. Rahm knows that–if I noticed it in the complaint, I guarantee you he has. So he’s got to make sure he doesn’t appear to be furthering goals that Blago believed he had a role in influencing.

I don’t know Chicago politics, but with Daley’s blessing, you gotta believe that O’Connor may win the election anyway. Still, if being mentioned in the complaint against Blago prevents Rahm from trying to game his replacement (and with it, prepare for a return to the House and a run for Speaker), I consider that a good thing.

Bob Corker’s Chumps in the Senate

I’d like to second a point Trapper John just made at the Great Orange Satan. Senate Democrats have no business hailing Bob Corker’s bad faith claim to broker a compromise on Thursday night.

Let’s make this very plain.  Bob Corker just led the charge to kill the American auto industry, and with it some 10% of the American economy, because he wasn’t allowed to bust the UAW.  As such, Bob Corker is definitionally one of the most traitorous and despicable human beings ever to track slime across the floors of the Senate. He is attempting to take advantage of the financial crisis to literally dismantle the American middle class. He is beneath the contempt with which partisans regard even their most radical and craven domestic political opponents.  And to see three of the most prominent leaders of the party that portrays itself as the party of working Americans line up to commend this sanctimonious puppet of big money, this enemy of working Americans . . . well, it’s disgusting.  There’s really no other word for it.

I’d add one thing to Trapper’s post. Trapper is right that Corker should not be celebrated because of the way he attacked the notion that our workers ought to be able to sustain a middle class life.

Also, Democratic Senators ought to be a little more skeptical about Corker’s alleged good faith when considering his actions on Thursday.

As I pointed out the other night, Corker demanded that workers make date-certain concessions, without making the same demands of the other parties: the bond-holders in particular.

But since Thursday, it has become increasingly clear that the bond-holders appear to be the only other stake-holder Corker was demanding real concessions from. In the statements I’ve seen him make, for example, I don’t think I’ve ever heard him ask for concessions from dealers. Take his description of negotiations on Fox yesterday.

We began a process by first getting the bondholders to take $0.30 on the dollar, a $0.70 haircut. That had to happen first by March 15 and if it didn’t…

WALLACE: And they agreed to that.

CORKER: They have agreed – they got – yes. They have agreed that if they don’t get there, the company has to file bankruptcy.

So General Motors was at the table, Chrysler was at the table, Ford was at the table. They were in the ante room. They agreed to that.

Secondly, we agreed to the fact that the VEBA payments was, without getting into a lot of details, $21 billion that General Motors has. Half of it would be paid in stock, half of it in cash.

So that’s off to the side. We had everything worked out except for one thing and that is that the UAW had to be competitive. [my emphasis]

Corker’s "everything" doesn’t, apparently, include concessions from dealers.

Or take his explicit dodge on dealer concessions on Thursday night:

The third issue is the dealership issue. I don’t think we can deal with that today. There’s two issues that we can deal with in this loan and solve the problem; okay? One is the capital structure. The other is the labor issue. [my emphasis]

That’s significant for two reasons. First, in every major discussion of how to improve GM’s competitive position–including GM’s own–cuts in the sheer number of dealers as well as cuts in the number of brands has been central. You’ve got to cut brands to make every brand they’re investing marketing and engineering support into more viable; you’ve got to cut dealers to bring up the profitability on each car and the viability of each individual dealer. Thing is, when GM cut Oldsmobile, they paid billions in cutting out those dealers. If there were an easier way to do this, it’d give GM a much quicker path to profitability.

But Bob Corker apparently didn’t include that in his plans at all.

There’s undoubtedly a very good reason for this. Car dealers, you see, are reasonably powerful constituents in every congressional district in this country. In fact, they tend to be (or used to be) wealthy. And conservative. The kind of people, in other words, that the Republican party wouldn’t want to offend for the purpose of making a political point. 

So, in spite of the fact that Corker boasts of having had the solution for the US automotive industry’s competitiveness in the palm of his hand until those mean union workers stole it away, he knows well he didn’t. He was completely ignoring one major part of the equation.

You can prove Bob Corker wasn’t negotiating in good faith by the way he asked only one party–the workers–to make date-certain concessions.

Or you can prove it by the way he refused to ask for concessions from those–largely conservative–small businessmen whose omnipresence around the country might cause a big political headache.

Bob Corker wanted to cause Democrats headaches, you see. But not Republicans. 

Unfortunately, those lauding his efforts in the Senate are unwilling to point this second bit out, and in so doing, calling his bluff. So we’re stuck with the unsavory prospect of being made chumps by Bob Corker even while his stature–and ability to attack union workers–continues to rise. 

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