"I'd have to tell my students, 'This is all now bullshit.'"

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Occasional Reasonoid Chris Lehmann pens a side-splittingly informative (how often can you splice together those adjectives?) column on the U.S. Attorneys scandal for the New York Observer, dissecting DC's reaction and grilling legal experts on why the story matters.

"You particularly have the legal branch of government trashing the law," says legal historian Stanley I. Kutler, author of the Nixon-tapes chronicle Abuse of Power. "The rule of law isn't applying to the rulers any longer."

 
Mr. Kutler notes as well that this sort of core tampering with the separation of powers isn't exactly easy to reel back once it's been unleashed. "So am I supposed to think that Hillary will instantly bring my habeas corpus back?" Mr. Kutler asks. "For 40 years, I taught legal and constitutional history. I'm glad I'm no longer teaching. If I had to give one of those lectures today, I'd have to tell my students, 'This is all now bullshit.'"
 
Veterans of past Justice Departments feel much the same outrage.
 

"When I joined the Justice Department in 1990," recalls Jonathan Shapiro, a former assistant U.S. attorney in Los Angeles, "there were still folks around who would tell you the story about how they lined the hallways to give Elliott Richardson a standing ovation when he left," after the then Attorney General resigned in protest over Richard Nixon's "Saturday Night Massacre" firing of Watergate special prosecutor Archibald Cox. "When I left the job in 1998, there was still the sense that it was verboten to fuck around the with the U.S. attorneys. No one had the brass to fire them for political motivations—it would look far too craven, partisan and dirty."

Read Lehmann's Reason output here.

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  1. Before the revisionism gets a little too gauzy regarding halcyon days of yore, do some reading about President Jimmy Carter, US Attorney David Marsten, and Congressman Joshua Eilberg.

  2. “When I left the job in 1998, there was still the sense that it was verboten to fuck around the with the U.S. attorneys. No one had the brass to fire them for political motivations-it would look far too craven, partisan and dirty.”

    Talk about bullshit. That was five years after all 93 US Attorneys were given 10 days notice to clear out, to include the one about to charge Rep. Rostenkowski, plus many more in the following years. No, this was not “routine” before or after the Clinton administration.

  3. The Censor’s staff will bring back a code of honor lacking in Washington today. In fact, they will have the power to challenge offending politicians to duels.

  4. I have to chuckle at the idea that there’s anything that our elected representatives wouldn’t do because it would look “craven, partisan and dirty” What about gerrymandering? What about FDR’s court packing scheme? We have a long, rich tradition of the craven, partisan, and dirty.

  5. Lehmann is married to Ana Marie Cox?

    Are there H&R / Wonkette / Time.com mixers?

  6. Guy, I think your making a little much of the Clinton “firing” of the USAs. Every administration replaces the USAs when it comes into office. Sometimes for totally partisan and/or ideological reasons. It is the President’s prerogative.

    However those totally partisan and/or ideological reasons are supposed to extend only to management style and priorities, not to harassing political enemies or protecting cronies.

    If you are simply trying to say that no administration has been pure in this regard then I most certainly agree (see Will Allen’s comment). But to pretend that the Clintonista “purge” of USAs was out of line with SOP is pure fantasy.

    There may be something to the Dem’s charges but for the time being I see no reason to not accept the Party Line that these Attorneys were fired for either incompetence or failing to follow the priorities of the DOJ (although considering the DOJ’s obsession with porn I think their prorities are fucked up).

    What is more troubling is Gonzales’ absolute inability to ennunciate the Party Line and indeed the fact that he seems to have felt the need to lie about his part in the whole affair.

  7. Oh, and Rostenkowski was indicted (and convicted) anyway.

    And the fact that Clinton pardoned him will cause me to guffaw loudly if anyone ever complains about anyone that Bush ever pardons.

  8. The Senate should also take a long look at itself. To the extent that nothing like this has been done before (a historically questionable assertion), the limit was the fact that the White House would have to justify itself when it came time to confirm the successor to the fired US Atty. The idiots who voted for the Patriot Act removed that limit and essentially gave the White House a green light for mischief.

  9. “You know what happens when the commies take over? They KILL ALL THE FUCKING LAWYERS!”

    -Danny DeVito as Garfield in Other People’s Money

  10. Isaac,

    [Lo Pan voice on]Indeed![Lo Pan voice off] Perhaps the worst abuses of the Clinton administration came at the end. Let’s pardon all of our cronies! Yippee! I would forgive him if he’d only gone one step further and issued the first self-pardon.

    I tend to agree with your assessment of the purge. It’s a bit unique as such things go, but really establishing that it was purely for overtly political reasons will be a tough one. Heck, people serving at the pleasure of the POTUS get canned for political reasons all of the time, so there’s also the question of where the line should be drawn in the first place. Although I will say that if some of the accusations are true (and can be proven to be so), there may be a real problem here. Of course, the idiots in Congress are reaping what they have sown.

  11. Isaac,
    Hold your laughing. We don’t know who Bush will pardon yet. It doesn’t look like any traitors will get a free pass this go around, but we’ll have to wait and see. The history of Presidential pardons doesn’t look too bright, though.

    My personal favorite was pardoning people who participated in a conspiracy to illegally sell weapons to a country with an avowed aim to destroy America.

  12. Isaac Bartram,

    Seems you are a victim of propoganda on this issue.

    Go look up the Clinton firings and compare to any administration before or since.

  13. Guy,

    As per usual, you have very little qualms about making things up. It’s impressive that you did so here without actually lying, just giving the impression that you are somehow citing facts.

    First of all, according to the Congressional Research Service, no more than five U.S. attorneys, out of 486 appointed by a president and confirmed by the Senate, have been similarly forced out-in the middle of a presidential term for reasons not related to misconduct. Second, Reagan also fired all 93 US attorneys at the beginning of his first term.

    So, umm, where are you going with this?

  14. I see London

    I see Hackensack

    I see a pot

    call a propagandist black!

  15. The citizenry should almost never accept the Party Line on any administration’s actions, especially when the administration responds with secrecy and conflicting responses to the first questions on that action.

    An earlier comment is correct — the legislative branch fell down on the job for the last six years, turning into a rubber stamp organization. One huge benefit of divided government is increased oversight.

  16. Isaac,

    Rostenkowski served 15 of 17 mos. Clinton’s pardon had little bearing on his punishment nor did it rehabilitate his image, so I don’t see your point. If you’d said Marc Rich, different story.

    As to GWB, I fully expect to see new lows. This administration is about nothing but political fealty.

  17. Taktix,
    What are you? Some kind of fucking lawyer?

  18. I love the way the Bush supporters are framing this as a “I did nothing wrong” issue yet they will not let their people questioned under oath, not even on record. What happened to nothing to hide, nothing to fear? I guess the Scooter trial taught them something. They CAN get in trouble for lying.

    I can’t imagine a conservative in this country having the attitude that the truth doesn’t matter. Yet many stand before us, willing to look the other way because they don’t like the “other” political party.

    It does say something honesty and American values. Or lack thereof.

  19. What’s scary about the defense offered for this incident – the deliberate conflation of pursuing the president’s policy goals with the advancement of the Republican party’s power under the all-encompassing term “political” – is that it seems to be less an example of their well-known mendacity, and more a genuine failure to distinguish between state and party, or justice and ideology.

    Reading what Guy Montag has to say about this issue, it seems that he genuinely does not understand that there are standards and practices more important than the partisan interests of those officeholders he agrees with, that are supposed to guide the application of the law.

    I find that more than a bit frightening.

  20. Anyone who is dumb enough to think that attorneys at the US Department of Justice are not political appointees is dumb enough to think there would be no problems with firing attorneys.

    ie Joe

  21. I certainly wouldn’t mind saying “Off with their heads” in this and similar situations–regardless of the party in question–but the truth is that reluctance to cooperate in investigations of this type is the standard response, not the exception. Granted, this administration circles the wagons when someone sneezes, and seems quick to lie, etc., but the basic resistance to playing ball with Congress, in and of itself, is no surprise. All presidents protect their prerogatives, usually beyond their recognized right to do so, too.

    Of course, as joe knows best of all, I’d like to have a fourth branch that would be able to override political question/prerogative claims and, well, chop off heads when unethical or unconstitutional behavior occurs. But I am alone in this desire, even in this august forum 🙁

  22. Just like a botched third rate burglery opened the floodgates, could some bungled HR shenanigans provide a similar lever?

    It’s kind of galling that after all of the DoJ bullshit we’ve seen in the last few years, it takes some questionable personnel moves to get the ball rolling.

  23. Thank you for demonstrating my point, joshua corning. See how far you can make the word “political” stretch?

    Let’s take a look here:

    Anyone who doesn’t realize that United States Attorneys serve at the pleasure of the president, and are expected to implement his policy directives, is stupid.

    vs.

    Anyone who doesn’t realize that United States Attorneys serve as partisan operaatives, and are supposed to use their offices to advance the electoral success of the President’s party, is stupid.

    I only wish I was smart enough to read those sentences as saying the same thing.

  24. “side-splittingly informative (how often can you splice together those adjectives?)”

    One of those is an adverb.

  25. How many Bs are in Babar?

  26. “Rostenkowski served 15 of 17 mos.”

    And IIRC part of that was already in a halfway house in Chicago. So it’s not like he was sprung early from an actual prison.

  27. Honestly, I don’t know why anyone serves two terms.

    It seems like you’d have a far better chance of extending one-party control of the White House if nobody stayed more than one term, and no VPs ran to succeed the President.

  28. This whole affair is just typical second-term scandalmongering. Were the firings unseemly or unwarranted? Maybe. Were they illegal. Mostly likely not. Is there anything more pressing that the congressional committee(s) in question could be spending my tax dollars on? Abso-fucking-lutely.

  29. Bad enough that a serious chunk of yoots in our country think that if it isn’t on the I-net it didn’t happen, but anyone who could seriously say something like waaaaayyy back in 1998………

  30. How many Bs are in Babar?

    Bbbbb bbb 2 B’b bb Bbbbb.

  31. such a phony ‘scandal” this is. The Dems really suck.

  32. Talk about bullshit. That was five years after all 93 US Attorneys were given 10 days notice to clear out, to include the one about to charge Rep. Rostenkowski

    I’m with Guy, on this one. And I swear… I pinkie-promise that I’m not one of those “but Clinton did it, too!” prefacers (is that a word) but I really am having trouble with this.

    I’m not comfortable with the firings of the eight (8) attorneys. But let’s break this down logically. The attorneys serve at the “pleasure of the President”. What this means is that the attorneys, like it or not are there under a political premise. Any tortured justification about how Clinton’s firings were ‘different’ and not comparable to the Bush eight is just that: tortured.

    I really need a good explanation as to why Clinton’s firing of the 93 attorneys was noble, justified and ‘normal’ when the Bush administration’s firing of the 8 is a dirty, low-down, predatory, scheming political maneuver. They both were political firings.

    I dunno, it just seems to me that the stories about Bush scandals that seem to be relatively minor in my opinion, get a disproportionate amount of traction as opposed to the real scandals.

    Positions which serve “at the pleasure” of the president are political positions. This does not mean that they can act outside of the law, it just means that their priorities are in line with the President’s agenda.

    So please, convince me why these eight deserve this investigation, and the previous 93 don’t.

  33. ChrisO, even if the firings weren’t illegal (and I’ve no reason to think they were), lying under oath certainly is. Clinton was (properly, in my opinion) impeached for it. Gonzales should at least be fired. And he would be if his boss valued competence and honesty over loyalty.

  34. joe:

    After I posted I got further in the thread (yeah, my bad) and I found your argument. It’s both as good as any, and as bad as any I’ve seen. Let me explain.

    I understand your dividing line. You’re uncomfortable with the fact that you believe (as do others) that the Justice Dept was pursuing the agenda of the Republican Party– ie were operatives of the party, not operatives of the Republican Ideology.

    This distinction, while arguable is pretty fine. Speaking for myself, I won’t go as far as saying there is no distinction, but it’s damned fine, and subject to all manner of–wait for it–political interpretation.

    Take, for instance, President which decides his agenda is, oh, healthcare, teen smoking, Big Tobacco, and obesity- which happens to be the same as his party’s agenda (surprise). He may fire attorneys which are not spending enough time on those issues. Especially when that president pushes his agenda through, oh, I dunno, a series of distributed lawsuits against legitimate businesses for vagaries in the law about deceptive marketing or “true enough” statements in their advertising– or better yet, the minimization of the “health impacts” of their legal products?

    At some point, we’re going to have to sit down and admit to ourselves that while both sets of firings were political, one set was based on politicdal critera we’re just too uncomfortable with. Where the others were just the usual and normal dirty, low-down, politically motivated machinations we’re already used to.

  35. Paul,

    Draw a freaking line. They’re using law enforcement as an arm of the Party! They’re using the most powerful prosecutors’ offices in the country to go after their political opponents and protect their friends, and they just tried to make an example of honest prosecutors who didn’t play ball.

    That is not remotely the same thing as wanting them to put resources into this or that type of case, or to make this or that legal argument. Those are legitimate exercises of the authority and discretion of a prosecutor. Going after somebody’s political opponents is not.

  36. There’s a reason everyone keeps contrasting these 8 mid-term firings to the practice that Reagan, Bush, and Clinton engaged in of replacing the entire crew at the beginning of a term.

    Traditionally, United States Attorneys have been insulated from politics, sort of like federal judges. The President picked his guys – mixing politics, cronyism and ability as he saw fit – and then let them do their jobs. Exceptions were rare – of the 428 US Attorneys appointed before Bush came into office, 5 were fired mid-term, and at least 3 of those were for cause.

    Now Gonzales’ office is going through the prosecutors’ files, finding ones who didn’t play ball when they were leaned on by Republicans, and firing them.

    I don’t think it’s good for our freedom or for the fairness and honesty of the government if the US Attorneys offices are politicized like that.

  37. Draw a freaking line. They’re using law enforcement as an arm of the Party! They’re using the most powerful prosecutors’ offices in the country to go after their political opponents and protect their friends, and they just tried to make an example of honest prosecutors who didn’t play ball.

    Since Clinton’s attorneys “played ball,” he did not use law enforcement as an arm of the Party.

  38. Draw a freaking line. They’re using law enforcement as an arm of the Party!

    I’m trying, joe, I’m trying real hard, but I’m trying to avoid drawing an imaginary one. Appointments that serve “at the pleasure of the president’ are… in one way or another, an ‘arm’ of the party. You can argue ‘less so’ in the case of Clinton, you can argue that it was less blatant, and you can argue that it was less severe. You could even argue (as NPR did) that because Clinton fired ALL of them then it’s all ok and on the up-and-up because he wasn’t so selective.

    I’m afraid that at this point, we’re going to have to change the rules and declare that attorneys no longer serve ‘at the pleasure’ of the President, and then we won’t be forced to draw these imaginary lines.

    Look, here’s all I’m trying to say: Do you think that when justice dept under aministration one spends all its time prosecuting: Big Tobacco; Big Food; Corporate Polluters; Oil Companies; Gun manufacters– and then Administration two spends all its time prosecuting: Terror Suspects; Pornographers; Online Gambling Houses– do you really, really think that the tone of a given justice department isn’t an arm of the “party”? Or do you really believe that all of a sudden, the entire crop of criminal behavior changed giving us a new set who turned away from selling cigarettes to kids, advertising fast food to hapless and unsuspecting customers, to people wanting to blow us up and trick us into betting our foldin’ money on poker? Color me skeptical.

  39. “Appointments that serve “at the pleasure of the president’ are… in one way or another, an ‘arm’ of the party.”

    No, they’re not. At least, they don’t have to be. Every other president in my lifetime managed to get through his term(s) without doing this. Reagan, and Bush, and Clinton managed to restrain themselves from trying to turn federal prosecutors into party operatives.

  40. “Or do you really believe that all of a sudden, the entire crop of criminal behavior changed giving us a new set who turned away from selling cigarettes to kids, advertising fast food to hapless and unsuspecting customers, to people wanting to blow us up and trick us into betting our foldin’ money on poker?”

    Straw man. I answered this quite clearly, the distinction between policy and party boosting, and between putting your guys in the office; and letting them work vs. sticking your nose in, whipping them into line, and purging the ones who don’t play ball. You want to ignore that, just pretend you’ve asked an ananswerable question and ignore the fact that I’ve answered it? Fine. But I’m going to call you on it.

  41. Andy,

    Second, Reagan also fired all 93 US attorneys at the beginning of his first term.

    First I have heard that one. Have a cite? Carter didn’t and neither did Bush 41 nor 43.

  42. First I have heard that one. Have a cite? Carter didn’t and neither did Bush 41 nor 43.

    Try this.

    The only difference with the the Clinton rise to power was that the Republican appointees refused to tender their resignations according to protocol and the generally accepted practice. So they forced the new administration to demand them.

    The Republicans then made political hay of this (who could expect less, in fact if there is something disappointing about the current imbroglio it is that the Rs are failing at the political game).

    In other words, it was never an issue with any other administration because the USAs had always had the decency to submit their resignations when the new administration took office.

    Again, in every change of administration the president has had the ability and power to either replace or retain any USA he saw fit to have in the position.

    I will also repeat that I do not have a problem with bush admin replacing the 8 US attorneys. And frankly, I think they’re probably a bunch of disgruntled hacks who have found a sympathetic ear with the Dema-gogues…errr…crats curently running things on the Hill.

    But the fact that Gonzales can’t explain any of this and indeed has to dissemble and lie about means he needs to go.

  43. “The rule of law isn’t applying to the rulers any longer.”

    Another “where has this guy been that he thinks this is new” moment.

  44. Isaac,

    Where is the part where Reagan did this? Your “Try this” does not show that, unless it is something I just blasted by.

    Sounds like the writer is making hay out of prepared resignations. Are you and he saying that Bush 43 replaced all 93 at the beginning of his term and now he is replacing 8 more?

  45. The “serve at the pleasure” bit isn’t a carte blanche, to be sure. I can’t cite anything, but I think that precise issue has come up before. For instance, say that during your presidency, you were hot for a little DOJ babe and fired her for not complying. That’s almost certainly actionable. And potentially impeachable.

    Not that this case appears to rise to that level, I hasten to add.

  46. Guy,

    That’s a fair question, actually – did W. replace all of the US Attorneys at the beginning of his presidency (as Reagan, Bush 41, and Clinton did).

    I don’t have a citation handy, but I think he did. All of the 8 fired US Attorneys were Republicans, which strongly suggests that they were Bush appointees. If you think about it, if Gonzales’s office is going through the records of all of the United States Attorneys to grade them on their political loyalty, and there were a bunch of Democratic Clinton appointees hanging around, don’t you think there would have been at least one of them among the 8 fired USAs?

  47. Guy,

    Apparently you can’t be bother to google some combination of “reason attorney firings all”? When you’re the one going against fact, you’re probably the one who should be citing a source, but if I must.

    “When the party in power changes hands in the White House, it is expected that the new president will fire all the sitting U.S. attorneys, as was the case for both Ronald Reagan in 1981 and Bill Clinton in 1993. President Bush, unlike Clinton and Reagan, did not fire all the attorneys en masse when he took office in 2001, and allowed a few to continue in their positions for several months. All were replaced with his own selections early in his administration, however.”
    from http://www.foxnews.com/story/0,2933,258425,00.html

    “Ronald Reagan fired all sitting U.S. attorneys when he took office in 1981 and Bill Clinton did the same.”
    from http://news.yahoo.com/s/ap/20070326/ap_on_el_pr/clinton_prosecutors

    Is that good enough or do we need a signed note from the teacher?

  48. Guy, the first sentence of the article I linked reads:

    “The fundamental difference between (a) a new administration replacing all U.S. attorneys (as multiple Presidents have done — including Clinton, Reagan and even Bush 41) and (b) cherry-picking ones for firing in the middle of an administration, has been amply documented.”(emphasis mine)

    Now maybe the writer is full of shit and I shouldn’t take his word for it. However maybe Andy’s links will do better for you (BTW, thanks, Andy)

    After all if you can’t trust FoxNews, who can you trust?

  49. Without the noble efforts of the US Attorneys, the Microsofts of the world would have continued to . . . wait for it . . . BUNDLED THEIR INTERNET BROWSER WITH THEIR OPERATING SYSTEM!. The horror!

  50. So, Guy, yes we’re saying Bush replaced them all, and then decided that due to a lack of sufficient toadying, he would replace 8 more.

  51. the distinction between policy and party boosting, and between putting your guys in the office; and letting them work vs. sticking your nose in, whipping them into line, and purging the ones who don’t play ball.

    Uhh, what? joe, the only thing you’ve answered here is that the proper and safe thing for a president to do is fire them all immediately so they “play ball”, thus avoiding the sticky mess of having to fire them after they fail to play ball. Straw man, my muscular buttocks.

  52. For anyone who really doesn’t see the significance of those in the legal system being able to work without fear of political repercussion, I’m really glad you weren’t around for the drafting of Article 3. The difference is as negligible as if the president were able to remove Supreme Court Justices.

  53. Dammit, I was about to hit Paul with the Supreme Court analogy.

    Paul, can you see the difference between Bush picking a Supreme Court nominee for political reasons, and firing and replacing one he appointed?

  54. joe,

    That’s the central point to L’Affaire DOJ to me–the Congress gave up a power that it shouldn’t have and has not fought to limit the nearly absolute control that modern presidents have over DOJ. Good thing the president can’t yank SCOTUS appointees, or the whole house of cards would tumble down. To be fair, DOJ prosecutors aren’t supposed to be completely independent of the White House, though maybe they should be.

    Like the Censor 🙂

  55. Guy,

    I’m glad you manned up and stuck around to talk to people who know what they’re talking about.

  56. This is hilarious.

    A bunch of people who claim to be libertarian, COMPLAINING about an action which reduces the efficiency of Big Brother, even if only temporarily.

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