Last night (well for me, early morning by the blog clock) I did a post on the decision in the SDNY case of Hedges et. al v. Obama. It was, save for some extended quotations, a relatively short post that touched perhaps too much on the positive and not enough on the inherent problems that lead me to conclude at the end of the post that the decision’s odds on appeal are dire.

I also noted that it was certain the DOJ would appeal Judge Forrest’s decision. Well, that didn’t take long, it has already occurred. This afternoon, the DOJ filed their Notice of Appeal.

As nearly all initial notices of appeal are, it is a perfunctory two page document. But the intent and resolve of DOJ is crystal clear. Let’s talk about why the DOJ is being so immediately aggressive and what their chances are.

I woke up this morning and saw the, albeit it not specifically targeted, counterpoint to my initial rosy take offered by Ben Wittes at Lawfare, and I realized there was a duty to do a better job of discussing the problems with Forrest’s decision as well. Wittes’ post is worth a read so that the flip side of the joy those of us on the left currently feel is tempered a bit by the stark realities of where Katherine Forrest’s handiwork is truly headed.

Wittes makes three main critiques. The first:

So put simply, Judge Forrest’s entire opinion hinges on the idea that the NDAA expanded the AUMF detention authority, yet she never once states honestly the D.C. Circuit law extant at the time of its passage—law which unambiguously supports the government’s contention that the NDAA affected little or no substantive change in the AUMF detention power.

Secondly:

Second, Judge Forrest is also deeply confused about the applicability of the laws of war to detention authority under U.S. domestic law. She does actually does spend a great deal of time talking about Al-Bihani, just not about the part of it that really matters to the NDAA. She fixates instead on the panel majority’s determination that the laws of war do not govern detentions because they are not part of U.S. domestic law. Why exactly she thinks this point is relevant I’m not quite sure. She seems to think that the laws of war are vaguer and more permissive than the AUMF—precisely the opposite of the Al-Bihani panel’s assumption that the laws of war would impose additional constraints. But never mind. Someone needs to tell Judge Forrest that the D.C. Circuit, in its famous non-en-banc en-banc repudiated that aspect of the panel decision denying the applicability of the laws of war and has since assumed that the laws of war do inform detention authority under the AUMF. In other words, Judge Forrest ignores—indeed misrepresents—Al-Bihani on the key matter to which it is surpassingly relevant, and she fixates on an aspect of the opinion that is far less relevant and that, in any case, is no longer good law.

Lastly, Ben feels the scope of the permanent injunction prescribed by Forrest is overbroad:

Judge Forrest is surely not the first district court judge to try to enjoin the government with respect to those not party to a litigation and engaged in conduct not resembling the conduct the parties allege in their complaint. But her decision represents an extreme kind of case of this behavior. After all, “in any manner and as to any person” would seem by its terms to cover U.S. detention operations in Afghanistan.

First off, although I did not quote that portion of Ben’s analysis, but I think we both agree that Judge Forrest pens overly long and loosely constructed opinions, if the two in Hedges are any guide. This is what I often refer to as “rambling”, and it is that.

Secondly, I note, significantly, Ben does not mention, much less meaningfully challenge, Forrest’s discussion on, and finding of, standing for the Hedges Plaintiffs. He should, it is every bit as big of an appellate concern as the three areas he does list. Forrest, in effect, used the disdain the Obama DOJ displayed to the court in not affirmatively presenting evidence and otherwise engaging in the initial March hearing on the merits of the plaintiffs’ situation as her basis for finding standing under Lujan v. Defenders of Wildlife.

Forrest does an admirable job laying out a foundation for her finding of standing, but the 2nd will take some issue and it is almost certain the Roberts Court who, are ideologically led by Scalia in their ever more restrictive view of standing, will reverse Forrest. If I am writing the inevitable DOJ appeal, that is where I start. And if an appellate court, as I suspect, starts there and disagrees with Forrest, the inquiry may end right there without getting into further merits. I would not bet against just that happening.

Standing issue aside, Ben Wittes’ demurrers to the Hedges opinion are also salient. Initially, I was going to deconstruct the heart of Ben’s take via some older material from another Lawfare protagonist I very much respect, Steve Vladeck. Due to other duties interrupting the writing of the instant post, Steve has come along and done that for me in a post at Lawfare:

Indeed, I’m not perplexed by the theory behind Judge Forrest’s analysis, but by its application to these facts. Consider section 1021(e) of the NDAA, a.k.a. the “Feinstein Amendment”:

Nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States.

As Marty and I explained in this post, the entire point of the Feinstein Amendment was to quell concerns that the NDAA might covertly authorize the detention of U.S. citizens or other individuals within the United States. It did so by emphasizing that it merely preserved the (entirely ambiguous) status quo in such cases. This proviso didn’t resolve the scope of the government’s authority to detain such individuals; it merely provided that the NDAA didn’t change that question in any meaningful way.

As such, the Feinstein Amendment appears to necessarily foreclose the argument that what’s “new” in the NDAA could encompass any power to detain individuals covered by section 1021(e), i.e., “United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States.” Such individuals might still be subject to detention under the AUMF, but thanks to the Feinstein Amendment, only under the AUMF. And so, to the extent that Judge Forrest’s analysis turns on the conclusion that the NDAA confers detention authority not provided by the AUMF, one would think she’d have to explain why the Feinstein Amendment doesn’t limit the “newness” of the NDAA exactly to those individuals with less clearly established constitutional rights, e.g., non-citizens arrested and detained outside the territorial United States.

You may say to yourself, well what is there particularly positive about Vladecks’ take? And it is a decent question. The answer is, admittedly, nuanced and somewhat thin. But it starts with the fact Steve is willing to consider Forrest’s “central premise”. And, indeed, contra Ben Wittes, I think it is more than possible to envision the Katherine Forrest framing in a world that is capable of distinguishing between Ex Parte Milligan and Ex Parte Quirin in a more liberal Founding Fathers view as opposed to the militaristic “War On Terror” view such as is the single minded view of the Bush/Cheney to Obama Executive Branch unitary theory.

Secondly, and as Wittes appropriately notes, Judge Forrest is in no way bound by the hideous precedent that has been laid down by the DC Circuit. No, Forrest operates in the 2nd Circuit and is not bound by the crazed opinions of Janice Rogers Brown and the War On Terror Stockholm Syndrome infected DC Circuit that seems to have lost all perspective of that from whence we came. Give Katherine Forrest credit, I think she understands the slippery and craven hill she is heroically trying to climb, and that is why she engages in such rambling attempts to buck up her position.

As to Ben’s last beef, the overbreadth of the permanent injunction, well, yeah, that is the nature of the beast, no? Seriously, when any federal court is interpreting a statutory decree of Congress on a “facial”, as opposed to “as applied” basis, especially one as far reaching and contra to Founding principles as Section 1021(b) of the NDAA, the injunction has to really be that broad to engage the “face” of the statute. So, that one is not really the crux of the consideration in this case.

In conclusion, I have to, regrettably, agree with my friend Ben Wittes, the shelf life of the joy from Katherine Forrest’s decision in Hedges et. al v. Obama is remarkably short. That does not mean it does not have immense value though. Doomed as it may be, it is a significant and principled pushback at the treachery engaged in by the DC Circuit in the “Detainee Cases”. It almost certainly will not hold up, but I have not in recent times (maybe not since Vaughn Walker) had more respect for what a federal judge has tried to do to protect the Constitution and principles this country was built on.

You may remember back in mid May Chris Hedges, Dan Ellsberg, Jennifer Bolen, Noam Chomsky, Alexa O’Brien, Kai Wargalla, Birgetta Jonsdottir and the US Day of Rage won a surprising, nee stunning, ruling from Judge Katherine Forrest in the Southern District of New York. Many of us who litigate felt the plaintiffs would never even be given standing, much less prevail on the merits. But, in a ruling dated May 16, 2012, Forrest gave the plaintiffs not only standing, but the affirmative win by issuing a preliminary injunction.

Late yesterday came even better news for Hedges and friends, the issuance of a permanent injunction. I will say this about Judge Forrest, she is not brief as the first ruling was 68 pages, and todays consumes a whopping 112 pages. Here is the setup, as laid out by Forrest (p. 3-4):

Plaintiffs are a group of writers, journalists, and activists whose work regularly requires them to engage in writing, speech, and associational activities protected by the First Amendment. They have testified credibly to having an actual and reasonable fear that their activities will subject them to indefinite military detention pursuant to § 1021(b)(2).

At the March hearing, the Government was unable to provide this Court with any assurance that plaintiffs’ activities (about which the Government had known–and indeed about which the Government had previously deposed those individuals) would not in fact subject plaintiffs to military detention pursuant to § 1021(b)(2). Following the March hearing (and the Court’s May 16 Opinion on the preliminary injunction), the Government fundamentally changed its position.

In its May 25, 2012, motion for reconsideration, the Government put forth the qualified position that plaintiffs’ particular activities, as described at the hearing, if described accurately, if they were independent, and without more, would not subject plaintiffs to military detention under § 1021. The Government did not–and does not–generally agree or anywhere argue that activities protected by the First Amendment could not subject an individual to indefinite military detention under § 1021(b)(2). The First Amendment of the U.S. Constitution provides for greater protection: it prohibits Congress from passing any law abridging speech and associational rights. To the extent that § 1021(b)(2) purports to encompass protected First Amendment activities, it is unconstitutionally overbroad.

A key question throughout these proceedings has been, however, precisely what the statute means–what and whose activities it is meant to cover. That is no small question bandied about amongst lawyers and a judge steeped in arcane questions of constitutional law; it is a question of defining an individual’s core liberties. The due process rights guaranteed by the Fifth Amendment require that an individual understand what conduct might subject him or her to criminal or civil penalties. Here, the stakes get no higher: indefinite military detention–potential detention during a war on terrorism that is not expected to end in the foreseeable future, if ever. The Constitution requires specificity–and that specificity is absent from § 1021(b)(2).

Those were the stakes in the litigation and Katherine Forrest did not undersell them in the least. Now, truth be told, there is not really a lot of new ground covered in the new decision that was not touched on in the earlier ruling, but it is even more fleshed out and also formalizes a declination of the government’s motion for reconsideration filed in June as well as argument on the additional grounds necessary for a permanent injunction over the preliminary injunction initially entered. As Charlie Savage pointed out, it is a nice little gift coming on the same day the House voted 301-118 to re-up the dastardly FISA Amendments Act.

And Forrest really did go out of her way to slap back the government’s bleating that courts should stay out of such concerns and leave them to the Executive and Legislative Branches, an altogether far too common and grating refrain in DOJ arguments in national security cases (p 11-12):

The Court is mindful of the extraordinary importance of the Government’s efforts to safeguard the country from terrorism. In light of the high stakes of those efforts as well as the executive branch’s expertise, courts undoubtedly owe the political branches a great deal of deference in the area of national security. See Holder v. Humanitarian Law Project, 130 S. Ct. 2705, 2711 (2010). Moreover, these same considerations counsel particular attention to the Court’s obligation to avoid unnecessary constitutional questions in this context. Cf. Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 347 (1936) (Brandeis, J., concurring) (“The Court will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of.”). Nevertheless, the Constitution places affirmative limits on the power of the Executive to act, and these limits apply in times of peace as well as times of war. See, e.g., Ex parte Milligan, 72 U.S. (4 Wall.) 2, 125-26 (1866). Heedlessly to refuse to hear constitutional challenges to the Executive’s conduct in the name of deference would be to abdicate this Court’s responsibility to safeguard the rights it has sworn to uphold.

And this Court gives appropriate and due deference to the executive and legislative branches–and understands the limits of its own (and their) role(s). But due deference does not eliminate the judicial obligation to rule on properly presented constitutional questions. Courts must safeguard core constitutional rights. A long line of Supreme Court precedent adheres to that fundamental principle in unequivocal language. Although it is true that there are scattered cases–primarily decided during World War II–in which the Supreme Court sanctioned undue deference to the executive and legislative branches on constitutional questions, those cases are generally now considered an embarrassment (e.g., Korematsu v. United States, 323 U.S. 214 (1944) (upholding the internment of Japanese Americans based on wartime security concerns)), or referred to by current members of the Supreme Court (for instance, Justice Scalia) as “wrong” (e.g., Ex parte Quirin, 317 U.S. 1 (1942) (allowing for the military detention and execution of an American citizen detained on U.S. soil)). Presented, as this Court is, with unavoidable constitutional questions, it declines to step aside.

If you relish such things, especially the rare ones where the good guys win, the whole decision is at the link. If you would like to read more, but not the entire 112 pages, the summary portion is contained in pages 3-14. For those longtime readers of Emptywheel, note the citation to Ex Parte Milligan on pages 12, 37, 51 and 79. Our old friend Mary would have been overjoyed by such liberal use of Milligan, especially this passage by Judge Forrest on pages 79-80:

A few years later, in Milligan, the Supreme Court held:
“Neither the President, nor Congress, nor the Judiciary can disturb any one of the safeguards of civil liberty incorporated into the Constitution, except so far as the right is given to suspend in certain cases the privilege of the writ of habeas corpus.” 71 U.S. at 4. The Court stated, “No book can be found in any library to justify the assertion that military tribunals may try a citizen at a place where the courts are open.” Id. at 73.

Indeed. Keep this is mind, because the concept of military tribunals not being appropriate to try citizens “at a place where the courts are open” is a critical one. Although the language invokes “citizens”, the larger concept of functioning courts being preferable will be coming front and center as the Guantanamo Military Tribunals move through trial and into the appellate stages, and will also be in play should Julian Assange ever really be extradited for trial in the United States (a big if, but one constantly discussed).

So, all in all, yesterday’s decision by Judge Forrest has far ranging significance, and is a remarkably refreshing and admirable one that should be widely celebrated. That said, a note of caution is in order: Enjoy it while you can, because if you are the betting type, I would not lay much of the family farm on Forrest’s decision holding up on appeal.

There was talk on Twitter that the Supreme Court would reverse, but I am not sure it even gets that far. In fact, unless Chris Hedges et. al get a very favorable draw on the composition of their appellate panel in the 2nd Circuit, I am dubious it goes further than that. And one thing is sure, the government is going to appeal.

[UPDATE:Okay, from the SCOTUSBlog “The entire ACA is upheld, with exception that federal government’s power to terminate states’ Medicaid funds is narrowly read.” Key language from the decision on the mandate:

The money quote from the section on the mandate: Our precedent demonstrates that Congress had the power to impose the exaction in Section 5000A under the taxing power, and that Section 5000A need not be read to do more than impose a tax. This is sufficient to sustain it.

And, boy howdy, was I wrong. I steadfastly maintained that CJ Roberts would never be the swing vote on a 5-4 majority, but would only join a liberal majority on the heels of Tony Kennedy. WRONG! The mandate survives solely as a result of Roberts and without Kennedy. Wow.

Final update thought. While I think the mandate should have been constructed as a tax, it clearly was not in the bill passed. You want to talk about “legislating from the bench”? Well hard to see how this is not a remarkable example of just that. I am sure all the plebes will hypocritically cheer that, and fail to note what is going on. Also, if the thing is a “tax” how is it not precluded as unripe under the AIJA? don’t have a fine enough reading of the opinion – read no reading yet – to discern that apparent inconsistency.

As to the Medicaid portion, here is the key opinion language on that:

Nothing in our opinion precludes Congress from offering funds under the ACA to expand the availability of health care, and requiring that states accepting such funds comply with the conditions on their use. What Congress is not free to do is to penalize States that choose not to participate in that new program by taking away their existing Medicaid funding.

Oh well, people on the left have been crying for this crappy law, now you got it. Enjoy. I will link the actual opinion as soon as it is available.

And here is THE FULL OPINION]

Well, the long awaited moment is here: Decision Day On The ACA. If you want to follow the live roll out of the Supreme Courts decisions, here is a link to the incredibly good SCOTUSBlog live coverage. Coverage starts at 9 am EST and the actual Court proceedings starting at 10 am EST.

This post will serve two functions. The first is to lay just a very brief marker, for better or worse (undoubtedly the latter I am afraid), going into decision day, hour and moment, and a ready location to post the decision of the court and link the actual opinions. The minute they are known and links available, they will be put here in an update at the top of the post. That way you can start the discussion ahead of the decisions, lay a record of your predictions ahead of time AND have a place to immediately discuss the rulings as they come in and immediately afterward.

Many friends and other pundits involved in the healthcare SCOTUS discussion have been working for weeks on alternative drafts of posts and articles to cover every contingency so they can immediately hit the net with their takes. That is great, and some of them will be a service. But I have just been too busy lately to expend that kind of energy on something so canned. Sorry about that. So my actual analysis and thoughts will mostly have to come later, but they will be on the merits, such as they may be, when the actual decisions are in. Also, I will be in comments and on Twitter (under “bmaz” of course).

Okay, with the logistics out of the way, I have just a few comments to lodge on the front end of this gig. First off, the ACA/PPA started off as truly about health insurance, not about health care from the start, and that is, still, never more true than today. Marcy laid out why this is, and why a LOT of people may get, or be forced into, purchasing health insurance, but there is a real question as to whether they will be able to afford to actually use what they will be commanded to buy. See here, here and here as a primer. Those points are pretty much as valid today as they were back when she wrote them.

Secondly, I have no real actual idea how the ruling will come down as to the merits. But, just for sport and grins, I guess I should take a stab at what I think after all the briefing and oral arguments, so here goes. The Anti-Injunction Act argument that the issue is a tax matter and therefore cannot be ripe for consideration until implemented and applied, will be rejected. The individual mandate is struck by a very narrow majority in a very carefully worded opinion written by John Roberts. The remainder of the ACA is deemed severable and is left to stand, and the Medicaid provisions are left intact, again by a narrow majority. Here is the thing, I would not bet one red cent of my own money on the foregoing; but if I could play with your money, I guess that is how I would roll. Maybe. Note that, before oral argument, my prediction was that the mandate would be upheld; I may regret not sticking with that call.

The real $64,000 question is the mandate, and that could just as easily be upheld, in which case it will likely be by a 6-3 margin (I still think Roberts writes the opinion, and if that is to uphold that means it will be 6-3). Here is what I will unequivocally say: however this goes down as to the mandate, it is a very legitimate issue; the arguments by the challengers, led by Randy Barnett, are now, and always were, far more cognizant than most everyone on the left believed or let on. I said that before oral argument, I said that after oral arguments and I say that now. Irrespective of what the actual decision turns out to be. Oh, and I always thought the hook liberals desperately cling to, Wickard v. Filburn, was a lousy decision to start with.

I have been literally stunned by the ridiculous hyperbole that has been blithely bandied about on the left on the ACA cases and potential striking of the mandate. Kevin Drum says it would be “ridiculous”, James Fallows says it would be a “coup!”, Liz Wydra says the entire legitimacy of SCOTUS is at issue, So do the Jonathans, Chait and Cohn. A normally very sane and brilliant guy, Professor David Dow, went off the deep end and says the justices should be impeached if they invalidate the mandate. The Huffington Post, and their supposed healthcare expert, Jeffrey Young, ran this insanely idiotic and insulting graphic. It is all some of the most stupefyingly hyperbolic and apoplectic rubbish I have ever seen in my life.

Curiously, the ones who are screaming about, and decrying,”politicization of the Court”, my colleagues on the left, are the ones who are actually doing it with these antics. Just stop. Please. The mandate, and really much of the ACA was ill conceived and crafted from the get go. Even if the mandate is struck, the rest of the law can live on quite nicely. Whatever the decision of the court, it will be a legitimate decision on an extremely important and very novel extension of Commerce Clause power that had never been encountered before.

One last prediction: Irrespective of the outcome today, the hyperbole will continue. So, there is the warm up. Let’s Get Ready To Rumble!

Whoooosh! And, like that, the complete acquittal in USA v. William Roger Clemens came and went. The five year long, over $10 million Clemens prosecution was a joke on the tax paying American public.

And so it goes for one defendant accused by the Department of Justice. What about other defendants who have come within the purview of the DOJ for false statements, perjury and obstruction of Congress? Say, for instance, our old friend Scott Bloch.

A friend of mine asked if the following order entered yesterday in Bloch’s case by DC District Court Magistrate Judge Deborah Robinson meant Scott Bloch must report immediately to Jail?

By a petition filed on June 19, 2012, the United States Probation Office advised that Defendant requests permission to travel internationally in August, 2012. U.S. Probation Office Petition (Document No. [74]) at 1. In the petition, the Probation Office notes that on April 27, 2010, Defendant was released by this court pending sentencing, subject to the condition, inter alia, that he report his travel plans to the Probation Office. Id.; see also Release Order (Document No. 5). The release order was entered after Defendant appeared before the undersigned and entered a plea of guilty to a one-count information by which he was charged with criminal contempt of Congress. 04/27/2010 Minute Entry. However, by an order filed on August 2, 2011, Defendant was permitted to withdraw his plea. Memorandum Opinion and Order (Document No. 73) at 1, 13. In the interim, no other charge has been filed, and no further proceedings have been scheduled; accordingly, Defendant is not on release pending sentencing, and has not been since August 2, 2011, the date on which he was permitted to withdraw his plea. It is, therefore, ORDERED that the release order (Document No. 5) is hereby VACATED nunc pro tunc to August 2, 2011. (lcdar3)

No, my friend was joking; but, still, the laugh is superbly taken. Looks to me like Bloch is scott free (some pun intended) OR (Own Recognizance) pending any other charges. Where are the new charges and/or plea?

When, if ever, will the DOJ Public Integrity Section (PIN) get around to pursuing the blatant in your face, egregious, actual crime against Congress committed by a critical federal investigative and prosecutorial attorney appointed to protect federal employees and whistleblowers instead of the silly corporate and in-bred Congressional protection racket charges inherent in the Roger Clemens, Barry Bonds and John Edwards prosecutions?

Okay, if I was Bloch’s defense attorney, William Sullivan of Pillsbury, I would absolutely say this is bunk, put my client on OR or cut him loose considering the dilly dallying, thumbs in ass, conduct of the DOJ. Since I am not him, I would like to know what the heck is going on. It has been nearly a year since Royce Lamberth, somewhat surprisingly, allowed Bloch to withdraw from his plea.

In their collusive attempt to get Bloch’s plea withdrawn, the DOJ and Bloch avowed they had already been discussing alternative paths for either charging or plea. That was before Lamberth allowed the withdrawal, i.e. well over a year ago. What in the world is stopping the DOJ from prosecuting this Criminal? In that same time period, they tried Roger Clemens twice, the second one lasting over two months, but apparently they just can’t find the time to prosecute a real criminal like Scott Bloch, doing real damage to government and Congress

Here is the thing, the date of the “Geek Squad wipe” Bloch obstructively did to his government computers was 12/18/2006 – the statute has now presumptively run on that. House Oversight requested their depo/interview on 12/6/2007 and actually took it on 3/4/2008. So, probably, there are still offenses within the SOL but it is wasting away. This just is NOT that complicated of a gig IF you are not completely pulling punches.

Seriously, please, tell me why we are still hanging where we are? A misdemeanor level rookie municipal prosecutor could have convicted Bloch in about a day and a half, maybe two day, long trial. The crack team at DOJ lead by the heads of PIN just can’t get er done? Scott Bloch should be heading to prison, not off on an Independence Day holiday vacation.

The real question here is not when will Bloch be dealt with, but why has he not been standardly, and appropriately – yet – still, even as of this quite late date within the statute of limitations? This course of conduct by the DOJ of colluding with Bloch to have him avoid accountability is a mocking joke on both the Article I Congress and the Article III Court. Yet, no questions are asked, no explanations given by DOJ, and few, if any, answers demanded by the press or Congress. The Obama DOJ, from their first moment, unequivocally, and inexplicably, aligned and sided with the criminal defendant Bloch, and diametrically opposite the interest of the public and rule of law.

Why do you think that is? Take a look at this in contrast to the way Roger Clemens was treated by the United States Department of Justice. And the way the Banksters have NOT been treated to the “niceties” of the US Criminal Justice system.

Golly, I wonder why that is? If Barack Obama and Eric Holder’s DOJ cannot answer for the lack of viable Wall Street/Financial Products Industry prosecutions, and have such little to say after the catastrophically worthless persecution of Roger Clemens, maybe the DOJ could at least tell the people it represents what the hell it is doing with Mr. Scott Bloch.

Naw, that is probably just too much to ask from America’s finest.

Six up, and six down for William Roger Clemens. From Jim Bambach at Newsday:

Former Yankees pitcher Roger Clemens was acquitted Monday on all six counts in his trial on charges he lied to Congress when he denied using performance-enhancing drugs, ending a 41/2-year battle to clear his name.

The jury deliberated for less than 12 hours before reaching a verdict, capping a two-month trial at which 46 witnesses appeared, including the wives of Clemens and accuser Brian McNamee.

Yep, six counts alleged, six counts acquitted on. Not a hit on any of them. And if the jury deliberations had not have been broken up by a weekend, the verdict may well not have taken even the nine plus hours it did. From the clear call of the unanimous verdicts, I would also hazard a guess that the jury may not even have been out the short time it was but for the fact lead Clemens defense attorney Rusty Hardin opened a wee door in cross-examining the tainted prosecution star witness Brian McNamee, allowing for, eventually superfluous, rebuttal evidence to come in by the DOJ to try to bolster their flawed criminal witness McNamee. Even that was clearly nowhere enough for the wise jury.

The entire substantive DOJ case flowed through two discredited and sham witnesses, Brian McNamee and the always questionable Fed Investigator Jeff Novitsky. If they were not discredited before, let the record reflect they are now.

More from Bambach:

Clemens’ attorney Rusty Hardin called his client “a helluva man.”

“This is a celebration for us,” Hardin said. “Let me tell you something. Justice won out.”

The loss was a blow to the Justice Department and the prosecution, which last year caused a mistrial on the second day of the trial.

Prosecutors declined to comment on their way out of the courthouse.

Yes, the Brave Sir Robin like crack prosecutors at DOJ so ethically turned their heads and fled like Sir Robin. Brave Sir Robin.

The focus, though, is easy to peg on Brian McNamee, and does he deserve it. But, remember, the single person who pushed this puppet theater, in addition to George Mitchell and corporate interest, Bud Selig, was Jeff Novitsky. One still wonders if the story of the MLB, IRS, DEA, HOS/GRC(Waxman/Congress) and Novitsky “workgroup” will ever be fully disclosed; but the surface appearance is not all that attractive.

But, hey, let’s not re-cover what has already been said. Here is how I described the gig in February of 2008:

First off, if the Federal government thinks Roger Clemens was seriously involved in steroid and HGH use and promulgation, investigate and prosecute him. But the government doesn’t give a rat’s ass about that, they are hot after Clemens because he had the audacity to challenge the God/Petraeus like Mitchell report. And make no mistake about it, if you can’t believe the Clemens portion of the Mitchell report, you have to wonder about the the whole thing (save for a few general recommendations) and the quality of work that went into it. As I said below in the comments, the Congress is vested in the Mitchell report Very heavily, because they think it was the implementation of their last little dog and pony show with McGwire, Sosa and Palmeiro (by the way, you don’t see any of those guys being hammered like Clemens do you?) and because George Mitchell is very close to many in the Congressional leadership including, most notably, Henry Waxman. This is all about bucking up the Mitchell report and, additionally, the work of Novitsky, who is in the middle of the whole mess and the Barry Bonds portion, whom they are dying to nail.

The main issue that bugs the bejeebies out of me on this mess is a concept in criminal law known as “parallel prosecution”. Simply put, what this means is multiple prosecutions, by multiple coordinated governmental entities, of one individual, at the same time, usually in an effort to gain advantage over him or deny his ability to effectively defend himself. There are many examples of this in the law, the layman simply doesn’t think about it in those terms, so never really grasps the implications. One common example in drug crimes is the attempt by the government to civilly seize and forfeit the defendant’s property so that he has to give testimony and answer questions in order to keep his property while they are prosecuting him on the underlying criminal case where, of course, he has a 5th Amendment right to silence and to make the government prove his case. The problem with this is that the government is using an artifice to breach the defendant’s 5th Amendment right against giving testimony against himself. If he doesn’t stand in and give testimony and subject himself to full examination, he loses his property because of an alleged crime he has not even been convicted on; if he does fight, he is opening himself up to examination that can be used against him.

This is the problem with the Clemens scenario. Clemens was the big fish in the Mitchell report and, make no mistake about it, Mitchell needed a big fish for his report, and preferably a white one to offset some of the complaints made about the major focus on Barry Bonds in the past. It is my understanding that Mitchell did not originally want to name individuals in his report, but id so after being urged very strongly by congress and MLB to do so. The second that Clemens exercised his right to say “Hey, thats not right, I am innocent”, the weight of the world was reigned down on him. He immediately was accused of lying and became the subject of discussions of criminal charges because he was challenging the credibility of the mighty Mitchell report. But Clemens was not afforded the opportunity to have the Government put up or shut up with their evidence against him and to have his right to test that evidence for weight and veracity. Instead, he was immediately under the combined microscope of the IRS, FBI, DEA and the Department of Justice (yes they are all actively involved in this; you just don’t hear about it). Then, to top it off, the United States Congress starts getting in on the act and compelling testimony under oath. Before he has ever been charged with any crime. All because he had the audacity to say “I am not guilty”. And all of this, at the time of the Mitchell Report, was based on the unsubstantiated tales of a known, proven liar and suspected rapist, with no physical evidence and no corroboration. That is pretty chilling if you ask me.

Evidence counts, and this is always where the real evidence, put to even the most fundamental test, has led. I’ll be honest, for the worthy job the inestimable Rusty Hardin did on this case, the one huge thing he did wrong was to open the door on cross-ex of the government’s witnesses, most notably McNamee for allowance of rebuttal confirmation of McNamee’s alleged honesty as to other MLB players such as Andy Pettitte and Chuck Knoblaugh. But the jury clearly, and unequivocally, drew a judgment on where the credibility was between McNamee and Novitsky on the one hand, and Roger Clemens, on the other hand. The vote was the latter, and not the former.

The DOJ went six with Roger Clemens and the Rocket no-hit them. And William Roger Clemens hung a Golden Sombrero+2 on the DOJ. Hang that picture with John Edwards, Ted Stevens and Barry Bonds. Not real flattering for the PIN-Heads at DOJ.

[As a well deserved thanks, I would like to point out Jim Baumbach of Newsday, Mike Scarcella of ALM, TJ Quinn of ESPN and Del Wilber of the Washington Post. Their Tweeting and reporting was absolutely incredible, individually and as a whole. I know what scintillating coverage from court, especially the court of Judge Reggie Walton at the DC District Courthouse is all about; over five years ago the owner of this blog and some other kick ass girls (i.e Jane Hamsher, Jeralyn Merritt and Egregious) set the standard. I do not say this gratuitously, the new crew truly did yeoman’s, and incredible, work.]

Oh, and, again, after seeing this dynamic map of the incredible extent of the DOJ investigation of Roger Clemens, any more questions on why DOJ cannot get around to prosecuting banksters??

The long awaited, and much anticipated, DOJ Office of Professional Responsibility (OPR) Report on the misconduct in the Ted Stevens Prosecution has just been delivered to Congress, and thereafter immediately released to the public by the Senate Judiciary Committee. I know this will shock one and all but, at least as to real results, it is fairly weak tea.

Legal Times reports:

A Justice Department internal investigation of the botched prosecution of Ted Stevens concluded two prosecutors committed reckless professional misconduct and should be sanctioned through forced time off without pay.

DOJ officials recommended Joseph Bottini be suspended without pay for 40 days and James Goeke be suspended for 15 days without pay. DOJ did not find that either prosecutor acted intentionally to violate ethics rules, a finding that is contrary to a parallel criminal investigation. Bottini and Goeke have the option to appeal the misconduct finding to the Merit System Protection Board.
….
Department officials said Bottini and Goeke failed to disclose information a chief government witness, Bill Allen, provided to investigators and prosecutors at a meeting in 2008, before Stevens was charged. Allen’s credibility was central to the prosecution case that Stevens concealed gifts and other items on U.S. Senate financial disclosure forms.

OPR did not make any professional misconduct findings against any of the other Stevens prosecutors, including William Welch II, Brenda Morris and Edward Sullivan. OPR, however, concluded that Morris, then a supervisor in the Public Integrity Section, exercised poor judgment by failing to supervise “certain aspects of the disclosure process.”

A special counsel who conducted a parallel probe of the Stevens team, after the case was dismissed in April 2009, did not recommend criminal charges against any of the Stevens prosecution team.

However, the lawyer, Henry “Hank” Schuelke III, concluded that Goeke and Bottini committed intentional misconduct in concealing exculpatory information. The two prosecutors dispute that finding.

Yeah, that about sums it up.

Cover letter to the Senate Judiciary Committee

Here are all the relevant documents (note: the pdf on the report itself is huge – 672 pages):

Office of Professional Responsibility Report

Bottini Decision

Bottini Disciplinary Proposal

Bottini Response

Goeke Decision

Goeke Disciplinary Proposal

Goeke Response

Goeke Response Appendix

A little more than two years ago I wrote about the inherent worthlessness of the OPR at DOJ:

Most governmental agencies have independent Inspectors General which operate independently of the agency leadership, have jurisdiction of the entire agency including legal counsel, and thus have credibility as somewhat neutral and detached evaluators and voices. Not so the DOJ, who has arrogated upon themselves the sole right to sit in judgment of themselves. This action to grab the exclusive authority for themselves and exclude the independent IG was first accomplished by Attorney General Order 1931-94 dated November 8, 1994 subsequently codified into the Code of Federal Regulations and reinforced through section 308 of the 2002 Department of Justice Reauthorization Act. Just in time for the war on terror legal shenanigans!

Go back and read that post again, I am too tired to write it again and nothing has changed. What a load of bunk the Stevens OPR Report is. Some harsh words for sure, but, as to actual accountability – a rap on the knuckles with a foam ruler.

Ted Stevens lost his Senate seat these twits get an unpaid vacation.

The OPR is STILL The Roach Motel.

Roll Call reports that former Representative [redacted] son, [redacted], got hired as Tom Coburn’s District Staff Assistant. That, in spite of the younger [redacted] conviction on misdemeanor charges of criminal solicitation and sexual harassment.

Sen. Tom Coburn’s decision to hire a former Member’s son who has a criminal record illustrates the latitude lawmakers have to hire as they see fit — and the value of personal connections in a world where information about wrongdoing can be found at a moment’s notice.

[redacted]

Credit where it’s due, the Hill actually makes the connection between Coburn, the [redacted], the Christian cabal “The Family’s” brownstone known as C Street where they shacked up together, and the involvement of both in covering up John Ensign’s extramarital affair [redacted].

While it doesn’t come out and say it directly, it comes as close as possible in a Hill rag to stating the obvious: [redacted] only got this job because his daddy belongs to the same cabal as Coburn (and because he’s white and connected, because if he weren’t, even The Family might not have been able to help him).

Of course, Coburn is also the guy who once sterilized at least one woman without her consent because he thought she had had too many babies already. Vagina monsters, you see, aren’t entitled to the same kind of second chances as male members of The Family.

Update: Fixed mis-identification of original report to Roll Call thanks to Peterr.

Update, 12/3/20: Names that have legally been expunged have been redacted.

Apparently the thrill is finally gone, or at least soon to be gone. Carrie Johnson at NPR has just reported:

A federal prosecutor who led the elite public integrity unit when the case against the late Alaska Sen. Ted Stevens collapsed has told associates he will leave the Justice Department.
….
A spokeswoman for the Justice Department and a representative for Welch had no comment on his departure, which one source said he characterized as a “retirement.”

Welch had been scheduled to lead a controversial prosecution later this year of former CIA official Jeffrey Sterling, who is accused of leaking secrets to New York Times reporter James Risen. That case has drawn widespread media attention because it could set important precedent on the issue of whether reporters enjoy some sort of legal privilege that could help them protect their sources.

This is interesting, actually fascinating news. As Carrie notes the Sterling matter is hanging in the lurch. In fact, it is waiting on an interlocutory appeal decision from the 4th Circuit over claims that the DOJ, once again led by Welch, played fast and loose with critical evidence disclosure. I do not, however, think that the impetus behind this somewhat surprising announcement. The 4th case appears to have completed briefing with the government’s filing of a redacted reply about six weeks ago; however, I don’t think a decision is likely coming that fast and federal appellate courts are not that leaky. Although, to be fair, District and Circuit courts do, occasionally in media intensive cases, give the parties a heads up a decision is coming.

More likely, this is more fallout from the Ted Stevens case and the Schuelke report. In fairness to Welch, he was not one of the hardest hit DOJ attorneys in Schuelke’s report, but he was blistered by Schuelke at Schuelke’s testimony in front of the Senate Judiciary Committee in late March:

Schuelke said tight deadlines before the lawmaker’s October 2008 trial and a series of missteps within the Justice Department’s public integrity unit where leaders William Welch and Brenda Morris “abdicated supervisory responsibility” contributed to the evidence sharing lapses. The failings prompted new Attorney General Eric Holder to abandon the case in 2009; Stevens died a year later in a plane crash after he had lost his Senate seat.

The odds are fairly good that the DOJ is putting the finishing touches on its long awaited OPR report on the Stevens fiasco and, after Schuelke, needs a sacrificial lamb. And Welch is a prime candidate to be sacrificed. But that would beg the question of what will they do about Brenda Morris, whose conduct in Stevens was much more egregious and central, as a supervisor, that even that of Welch. And it should not be forgotten that Brenda Morris was also smack dab in the middle of another catastrophic black eye for the DOJ, the Alabama bingo cases. So, there are some real questions for DOJ there.

As to William Welch though, with both the OPR report nearing completion, and the prospect of a House Judiciary inquiry looming later this week, it would seem that Welch’s newfound desire for “retirement” has a bit of a forced edge to it.

One last thing should be kept in mind: the legislation proposed by Lisa Murkowski and having key bi-partisan backing after Stevens and the Schuelke Report, to reform federal evidence disclosure rules for the DOJ. The DOJ is literally, and cravenly, apoplectic about the proposed reform and has promised they have “learned their lesson” and that everybody should just “trust us”.

DOJ had been fighting disclosure reform hard for quite a long time; but there will never be better momentum than is present now, and they know it. Any seasoned criminal defense attorney will confirm that the far more open and reciprocal discovery rules found at the state level in several more enlightened jurisdictions (I can vouch for this in Arizona, which is one of them) work far better than the archaic disclosure rules extant in federal court. It would be a huge benefit to fairness in the criminal justice process, and it IS an attainable goal. And that, too, may be why we are seeing the sacrifice of William Welch.

The Patient Protection and Affordable Care Act (ACA), otherwise popularly known as “Obamacare” had a bit of a rough go of it this week at the Supreme Court. Jeff Toobin called it a train wreck (later upgraded to plane wreck). Kevin Drum termed it a “debacle” and Adam Serwer a “Disaster“.

Was it really that bad? Considering how supremely confident, bordering on arrogant, the Obama Administration, and many of the ACA’s plethora of healthcare “specialists”, had been going into this week’s arguments, yes, it really was that bad. Monday’s argument on the applicability of the tax Anti-Injunction Act (AIJA) went smoothly, and as expected, with the justices appearing to scorn the argument and exhibit a preference to decide the main part of the case on the merits. But then came Tuesday and Wednesday.

Does that mean the ACA is sunk? Not necessarily; Dahlia Lithwick at Slate and Adam Bonin at Daily Kos sifted through the debris and found at least a couple of nuggets to latch onto for hope. But, I will be honest, after reading transcripts and listening to most all of the audio, there is no question but that the individual mandate, and quite possible the entire law, is in a seriously precarious lurch.

Unlike most of my colleagues, I am not particularly surprised. Indeed, in my argument preview piece, I tried to convey how the challenger’s arguments were far more cognizable than they were being given credit for. The simple fact is the Commerce Clause power claimed by Congress in enacting the individual mandate truly is immense in scope, – every man, woman and child in the United States – and nature – compelled purchase of a product from private corporate interests. Despite all the clucking and tut tutting, there really never has been anything like it before. The Supreme Court Justices thought so too.

I have no idea what kind of blindered hubris led those on the left to believe the Roberts Court was going to be so welcoming to their arguments, and to be as dismissive of the challengers’ arguments, as was the case. Yes, cases such as Raich and Wickard established Congress could regulate interstate commerce and Morrison and Lopez established there were limits to said power. But, no, none of them directly, much less conclusively, established this kind of breathtaking power grant as kosher against every individual in the country.

Despite the grumbling of so many commentators that the law was clear cut, and definitively established in favor of the mandate, it wasn’t, and isn’t. And I was not the only one on the left who found the challenging arguments serious, Professor Jonathan Turley did as well (see here and here).

There is no particular need to rehash all the different arguments, and iterations of them by the scores of commentators (not to mention the participants in the case, of course), that has already been done elsewhere, actually everywhere, ad nauseum. There is one area I do want to touch on, at least briefly, though. Limitations of power. This is an important concept in Commerce Clause law, which is why I tried to focus on it in the argument preview article.

Simply put, the the question is, if the federal government can, via the Article I Congressional authority, stretch the reach of the Commerce Clause to every individual in the US, willing or not, as they did in the “ACA Individual Mandate” is there any power over the individual and/or the states, that is still out of bounds? Are there any limitations left on the ability of the federal to consume individual determination? What the Supreme Court looks for in such an inquiry are “limiting principles” that could constrain the power in the future. Another term of art used in the law is, is there any way to “cabin”, i.e. constrain, the power?

In addition to the preview post, I also asked colleagues on Twitter (here and here) to describe proper concepts that would accomplish the goal. For over a day, until the reality that – gasp – this was also the concern of the justices, there was literally no discernible response. Once that reality, forced by the Court, set in however, attempts came fast and furious. Nearly all were rationalizations for why the ACA/mandate was necessary and/or desirable, but were not actual limiting principles.

It was a bit of a trick question, because the best lawyers in the government and amici did not do so hot in that regard either. Out of all I have seen, the one that struck me as fairly easily the best was propounded by Professor Jack Balkin:

The Moral Hazard/Adverse Selection Principle
Congress can regulate activities that substantially affect commerce. Under the necesary and proper clause, Congress can require people to engage in commerce when necessary to prevent problems of moral hazard or adverse selection created by its regulation of commerce. But if there is no problem of moral hazard or adverse selection, Congress cannot compel commerce. Courts can choose different standards of review to decide how much they want to defer to Congress’s conclusion.

Nice, tight and definable. Not bad. Still leaves a lot of ground – likely far too much – open to suit the apparent Supreme Court majority forming. So, when you read, here or otherwise, discussion about “limiting principles” or “cabining”, this is what is being contemplated.

As usual, Justice Anthony Kennedy is the critical swing. And Kennedy’s general understanding (and consideration here) of liberty is instructive. The following lays it out quite well, using both quotes from last Tuesday’s oral argument and background, and comes via Adam Liptak at the New York Times:

Paul D. Clement, representing 26 states challenging the law, had a comeback. “I would respectfully suggest,” he said, “that it’s a very funny conception of liberty that forces somebody to purchase an insurance policy whether they want it or not.”
…..
Justices tend to ask more questions of the lawyers whose positions they oppose, and Justice Kennedy posed six questions to Mr. Verrilli and just three to the two lawyers challenging the law.

The questions to Mr. Verrilli were, moreover, mostly easy to read. They were crisp expressions of discomfort with the administration’s arguments.

“Can you create commerce in order to regulate it?” Justice Kennedy asked.

“This is a step beyond what our cases have allowed, the affirmative duty to act to go into commerce” he said. “If that is so, do you not have a heavy burden of justification?”

“Can you identify for us some limits on the commerce clause?” he asked.

Those questions fit neatly within one strain of Justice Kennedy’s understanding of liberty, one he discussed at length last year in an opinion for a unanimous court.

Limiting federal power, he wrote, “protects the liberty of all persons within a state by ensuring that laws enacted in excess of delegated governmental power cannot direct or control their actions. By denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power. When government acts in excess of its lawful powers, that liberty is at stake.”

There is a Constitutional desire, and instruction to, colloquially, have limitation on federal power and to reserve rights to states and liberties to individuals. The Supreme Court, and Justice Kennedy (and to a lesser extent Chief Justice Roberts), in the ACA arguments was grappling with these concepts. How they find them, and decide them, will determine the outcome on the mandate.

One way or another, the case on the mandate will be decided. In the preview post before oral arguments began, I predicted either a 6-3 decision to uphold the constitutionality of the mandate or a 5-4 decision against it. The odds on the latter have soared. At this point, I would rate the odds at 50:50 either way. But, sometime – likely near the end of June – there will be a decision and the victory dance by the winning side and caterwauling and demeaning of the “politicized Court” by the losers will commence. That pattern will play out regardless of which party wins, and which party loses.

As described in both the instant post, and the preview piece, the arguments are indeed contentious, but they are also quite real. There are fundamental differences, over fundamental interpretations of fundamental rights. And, despite the often PT Barnum like contentions of the ACA cheer squad on the left, and from the Obama Administration, the nature and reach of the mandate truly is unprecedented and never was “unquestionably constitutional” as so many claimed. The left created their own self sustaining echo chamber and convinced themselves a truly controversial mandate was self fulfilling and golden.

The arguments against the mandate by the challengers are not wrong or silly simply because made by the “other side”. There IS merit to their concern, even if you ultimately believe the mandate should be upheld. Which has made it distressing, to be kind, to see the efforts of many of my colleagues on the left to demonize and degrade the questions and apparent inclination by the conservative bloc of the Roberts Court during oral arguments.

It took Jonathan Chait at New York less than a day after the fateful oral arguments to start salting the thought the court was somehow illegitimate:

The spectacle before the Supreme Court this week is Republican justices seizing the chance to overturn the decisions of democratically-elected bodies. At times the deliberations of the Republican justices are impossible to distinguish from the deliberations of Republican senators.

Chait’s fellow dedicated ACA supporter, Jonathan Cohn at The New Republic quickly weighed in with his hyperbolic joinder:

Before this week, the well-being of tens of millions of Americans was at stake in the lawsuits challenging the Affordable Care Act.

Now something else is at stake, too: The legitimacy of the Supreme Court.

Even Dahlia Lithwick and Professor Richard Hasen, both of whom I respect somewhere beyond immensely, in separate articles at Slate, joined the chorus of casting stones of Court legitimacy degradation.

Please, folks, just stop. The question on the mandate is legitimate, and the other side believes their position every bit as much as you do yours. While there is certainly case precedent in the general area, there is just as certainly none directly on point with the way the “commerce” in this mandate is framed and “regulated”.

The Supreme Court is inherently a political body, at least in that its Justices are politically appointed. Presidential candidates of both stripes campaign on the type of Justices they would appoint if given the opportunity. Further, the Supreme Court is the final arbiter of the most controversial questions, that habitually involve mixed issues of politics and law, and has been ever since Marbury v. Madison.

Charges against the legitimacy of the Supremes have also been extant since the time of Marbury v. Madison, and continue into the modern set of decades with cries by the right against the Warren Court, to the bookend cries by the left against the Burger and Rehnquist Courts. The Supreme Court survived all those, and is still ticking after Bush v. Gore and Citizen’s United. It will survive this too.

And, as David Bernstein pointed out, why in the world would the left undermine the Court’s legitimacy when it is one Presidential appointment away from taking over the ideological majority? No kidding. I respectfully urge my colleagues on the left to step back, take a breath of air, and rethink the idea of degrading the Court over this case.

Those, however, are not the only reasons Democrats and the left should take a step back and rethink how they are reacting to the SCOTUS consideration of the ACA mandate. I pointed out in the ACA/SCOTUS preview post that progressives and conservatives were both, strangely, arguing contrary to type and ideology on the mandate. In a really bright piece of counterintuitive and intelligent thought, Jon Walker points out just how true that was:

If Conservatives get their way and the Supreme Court strikes down the individual mandate to buy health insurance, it would be a real victory for them; but in the end, the last laugh may be with actual progressives. While in this case an individual mandate was used to expand health coverage, similar individual mandates are the cornerstone for corporatist plans to unravel the public social insurance systems created by the New Deal/Great Society.

The basic subsidies, exchanges and individual mandate design that defines the ACA are at the heart of many corporatists’ attempts to destroy/privatizes the programs progressives support the most.

There are are two main ways for the government to provide universal public goods. The first and normally best way is to have the government raise money through taxes and then use that money to directly provide the service to everyone. The other option is to create an individual mandate forcing everyone to buy the service from private corporations while having the government subsidize some of the cost. These needless middlemen mostly just increases costs for regular people and the government. This is why corporations love this setup and push hard for it.
….
If the Supreme Court rules against this individual mandate in a way that basically makes it legally impossible to replace most of our current public insurance systems with mandated private systems, that should be seen as a big silver lining for progressives.

Go read the entire piece by Jon Walker, as it contains specific instances and discussions that are important.

In closing, I would just like to say it is NOT the case that the conservatives are definitely right in their challenge to the individual mandate in Obamacare, but it is a lot closer case than liberals make out, and liberals are being blind to the potential downside of it being upheld. All of these factors make the situation different than has been relentlessly painted; there are legitimate arguments on both sides and the Supreme Court will make a tough decision. Whatever it is, that will be their decision. It was a flawed law when it got to the Supremes, and they will still maintain legitimacy and respect when it leaves, regardless of how they sort the hash they were served.

[Article updated to reflect author Jon Walker for the last link, not David Dayen]

Well, okay, Richard Carmona has been formally announced for the race since early November of 2011, but with yesterday’s dropout by the only other major Democratic contender, former state Democratic Party Chair Don Bivens, the field is effectively cleared for Carmona.

Bivens was gracious and indicated clearly he is getting out for party unity:

“The continuing head-to-head competition of our Democratic primary is draining resources that we will need as a Party to win the U.S. Senate race in November,” he wrote in a statement. “While I am confident we would win this primary, the cost and impact on the Party I’ve spent my life fighting for could diminish our chance to achieve the ultimate goal: winning in November.”

Bivens had a stellar third quarter in fundraising, but momentum quickly shifted to former Surgeon General Richard Carmona when he entered the race in November. Carmona had the backing of much of the national Democratic establishment.

In a joint statement with Democratic Senatorial Campaign Committee Chairwoman Patty Murray (Wash.), Senate Majority Leader Harry Reid (D-Nev.) wrote that he was “heartened that Don has decided to focus his time and energy” on President Barack Obama’s re-election and on Carmona’s campaign.

This is actually fairly exciting news here in the desert, as the party, both in state and nationally, can coalesce around Carmona and focus on the necessary effort to insure very conservative Republican Congressman Jeff Flake, the certain nominee for the GOP, does not win. The race is for the seat of the retiring Jon Kyl and, for the first time since Dennis DeConcini left, the Dems have a serious chance of gaining a Senator in Arizona. A goal not only critical to us in Arizona, but in the national efforts to retain the all important Majority status in the Senate.

Why is Carmona, the man and candidate, so exciting? Well, because he has a legitimate shot at winning, that’s why. And who is Richard Carmona? Here is his campaign biography:

Born to a poor Hispanic family in New York City, Dr. Richard Carmona experienced homelessness, hunger and bleak prospects for a future education and economic opportunity. The child of parents who emigrated to the United States and struggled with alcoholism and substance abuse, Rich learned tough early lessons about economic disparities and social injustice – an experience he has never forgotten, and one that has given him an understanding of how culture, health, education and economic status shape our country.

Like his siblings and many of his friends, Rich dropped out of high school. With few skills and little education, he enlisted in the Army and went to Vietnam. Military service gave him discipline and a drive to succeed that he still carries today. In order to apply for Special Forces and become a combat medic, he earned his high school equivalency degree. Rich left the Army a combat-decorated veteran, with two Bronze Stars, two Purple Hearts, a combat medical badge and numerous other decorations to mark his service.

When he returned home from Vietnam, Rich became the first member of his family to earn a college degree. Through open enrollment reserved for returning veterans, he attended Bronx Community College and earned an Associate of Arts degree. Later he went to the University of California, San Francisco, where he earned a bachelors of science degree. Two years later, Rich completed his medical degree – receiving the prestigious gold-headed cane as the school’s top graduate.

Trained in general and vascular surgery, Dr. Carmona also completed a National Institutes of Health-sponsored fellowship in trauma, burns, and critical care. A Fellow of the American College of Surgeons, Dr. Carmona was recruited jointly by the Tucson Medical Center and the University of Arizona to start and direct Southern Arizona’s first regional trauma care system. He, his wife Diana and their four children, relocated to Tucson.

Dr. Carmona would later become chairman of the State of Arizona Southern Regional Emergency Medical System, a professor of surgery, public health and family and community medicine at the University of Arizona, and the Pima County Sheriff’s Department surgeon.

While continuing his medical career, Rich’s call to service lead him to the Pima County Sheriff’s Department in which he has served for more than 25 years as a deputy sheriff, detective, department surgeon and SWAT Team Leader. In 1992, he rappelled from a helicopter to rescue a paramedic stranded on a mountainside when their medevac helicopter crashed during a snow storm, inspiring a made-for-TV movie. In the course of his service, Rich received the National Top Cop Award and was named the National SWAT Officer of the Year.

In 2002, Carmona was nominated by the president and unanimously confirmed by the United States Senate to become the 17th Surgeon General of the United States. As Surgeon General, Carmona focused on prevention, health disparities and emergency preparedness to protect the nation against epidemics and bio-terrorism. He also issued a groundbreaking report on the dangers of second-hand smoke.

While very successful as Surgeon General, he unfortunately also experienced the divisive politics that continue to plague Washington today — where the desire to score political points has become more important than solving problems, creating jobs or providing for those in need. That experience guides his current mission to become Arizona’s next senator and change how Washington works.

In 2007, Dr. Carmona testified before Congress that political appointees had put partisan politics ahead of science — especially when it came to the public’s health — in hopes that shining a light on how the administration operated could bring change. He testified: “The job of surgeon general is to be the doctor of the nation, not the doctor of a political party.”

Now THAT, folks, is a history and experience set to kill for in a political candidate for major office. Handsome fellow, and extremely charismatic and personable, too.

Now, I will say this much, Carmona is not, and will not be, a true liberal progressive overall, that is simply not his makeup. I do not yet know Richard personally, but have friends that have both known him since he first came to Arizona decades ago, as well as friends that studied medicine under him, and all advise he is a real deal independent thinker who is overall Democratic in base ideology, but pretty moderate.

Now, the good news: Carmona is very good on the critical health issues currently roiling the nation’s politics, including on women’s issues that are so under fire recently:

Throughout my time as U.S. Surgeon General, I remained steadfast in my belief that every woman should have access to comprehensive health care, including retaining access to reproductive health care options and FDA-approved prescription contraceptives.

As a medical doctor, I know that a woman’s access and choice of reproductive health care options is an intensely personal decision left best decided by a woman and her physician. I also believe it is important to reduce the number of unwanted pregnancies in the United States through supporting medically-accurate, comprehensive sex education for our kids, taking steps to prevent teen pregnancy and providing access to pre-natal care for all women.

Carmona is dogged in his desire to protect Social Security and Medicare, as well as providing appropriate care, that has to date been shockingly lacking, for veterans. Carmona is also strong on the need for immigration reform (trust me, this is absolutely critical here on the border).

A fuller statement on Richard’s priorities can be found here. All in all, it is a great policy set.

One of the things not listed in Carmona’s priorities, and that I am most interested in, is his in depth stance on environmental issues. How we steward our national resources and deal with global warming will be of critical importance. This is geometrically more true in a state of open land, rich natural resources and fragile Sonoran riparian habitats like we have in Arizona. I will be seeking clarification in this regard from Mr. Carmona immediately, and will report appropriately. In fact, I am going to make sure he gets this blog post and a formal request for response.

Here is why this race is SOOOOOO important: Once elected to the Senate from Arizona, people tend to stay there forever. Jeff Flake, the certain GOP nominee, is personally a very nice guy; he is, however, a catastrophe from a policy standpoint. If Jeff Flake is allowed to win this seat, he will never leave unless he gets placed on a national ticket that wins the White House. The tide is turning Blue in Arizona, and we simply cannot tolerate another entrenched right wing extremist.

Richard Carmona has the goods to beat Flake and give both Arizona and national Democrats a strong and, compared to the lobbied up norm for national politicians, genuine voice. As Marcy is doing with Trevor Thomas in Michigan, I will be writing about Carmona and our local race here in Arizona from time to time.

I hope you will join me in supporting Richard Carmona for US Senator for Arizona. Here is where you can get involved, here is where you can donate!