Still Hating America.

[taxwonk]

Originally posted by Mmmm, Burger (C.J.)
Are you saying US Attorneys are cleary not "inferior" officers whose appointment may be entrusted solely to the president? And, if you are, are you saying that if Congress enacts a law that is unconstitutional, the President is obligated to ignore it?

Actually, I was just trying to move the discourse past the "he can fire them"/"he can't fire them" stage to the "here's why" phase. Because the current discussion leads me to feel, like Hank, "so what?"

[Hank Chinaski]

Originally posted by taxwonk
Actually, I was just trying to move the discourse past the "he can fire them"/"he can't fire them" stage to the "here's why" phase. Because the current discussion leads me to feel, like Hank, "so what?"

can't the President fire anyone (except VP) in the executive branch pretty much? he can fire the Attorney General.

[Shape Shifter]

Originally posted by Hank Chinaski
can't the President fire anyone (except VP) in the executive branch pretty much? he can fire the Attorney General.

• scum sucking depravity debauched
  anal fuck-fest, thrill olympics
  savage scourge supply and sanctify
  so what? so what?
  
  
  you said it!
  sedatives supplied become laxatives
  my eyes shit out lies
  i only kill to know i'm alive
  so what? so what?
  
  
  so what, it's your problem to learn to live with
  destroy us, or make us saints
  we don't care, it's not our fault that we were born too late
  a screaming headache on the brow of the state
  killing time is appropriate
  to make a mess and fuck all the rest, we say, we say
  so what? so what?

http://www.ministry.nu/the_songs/the.../6_so_what.txt

[taxwonk]

Originally posted by Hank Chinaski
can't the President fire anyone (except VP) in the executive branch pretty much? he can fire the Attorney General.

I'm don't know. That's why I've been asking questions all day. Is there a bad faith exception to the President's discretion? Is it really the President exercising discretion if the firing is being done by a staff person for political rather than governmental reasons?

In other words, why?

[Mmmm, Burger (C.J.)]

Originally posted by taxwonk
I'm don't know. That's why I've been asking questions all day. Is there a bad faith exception to the President's discretion? Is it really the President exercising discretion if the firing is being done by a staff person for political rather than governmental reasons?

In other words, why?

I don't see what standard one could use to assess a wrongful firing. Or what the remedy is. It's one thing to can a civil servant for race, politics, whatever--they can be reinstated. But anyone who serves at the pleasure of the President, serves at the pleasure of the president.

The only recourse is political. But the recourse seems even more political than the decision--right now there are primarily Democratic senators basically saying the president should not be able to terminate someone whom he appointed.

I guess it shouldn't surprise me, because the investigation is being led by senators. But if anyone has come out as most egregiously acting improperly it's probably Domenici, who was actively interfering (or seemingly so) in an ongoing investigation. Even taken at its worst, Bush fired prosecutors for failing to bring what he thought were meritorious cases.

[Hank Chinaski]

Originally posted by Shape Shifter

• scum sucking depravity debauched
  anal fuck-fest, thrill olympics
  savage scourge supply and sanctify
  so what? so what?
  
  
  you said it!
  sedatives supplied become laxatives
  my eyes shit out lies
  i only kill to know i'm alive
  so what? so what?
  
  
  so what, it's your problem to learn to live with
  destroy us, or make us saints
  we don't care, it's not our fault that we were born too late
  a screaming headache on the brow of the state
  killing time is appropriate
  to make a mess and fuck all the rest, we say, we say
  so what? so what?

http://www.ministry.nu/the_songs/the.../6_so_what.txt

first, my prior post was an academic resposne to Wonk's question. second, my "so what" was a suggested resposne from the WH, not my feelings. I do not typically open my heart here.

On the other hand, and to provide you some historic context:

• Independent counsel Robert Ray's investigation of Travelgate began in the Clinton Administration’s first term when seven members of the Travel Office staff were terminated and replaced by a company run by Clinton friends. The issue for prosecutors was whether anybody in the White House tried to cover up alleged mismanagement of the firings.
  
  In a report[6], released October 18, 2000, Ray determined Hillary had given false testimony when questioned about the travel office firings, a crime that Ray declined to prosecute. Under oath, Mrs. Clinton flatly denied any role and denied that she had any input, but later a memo surfaced from administration chief David Watkins suggesting Mrs. Clinton wanted the travel staff fired. Watkins said there would be "hell to pay" if swift action was not taken in conformity with the First Lady’s wishes. A friend of Watkins also alleged that Watkins was told to quote, ‘fire the sons of bitches.’

http://en.wikipedia.org/wiki/White_H...ce_controversy

[Shape Shifter]

Originally posted by Hank Chinaski
first, my prior post was an academic resposne to Wonk's question. second, my "so what" was a suggested resposne from the WH, not my feelings. I do not typically open my heart here.

On the other hand, and to provide you some historic context:
[list][Travelgate][/url]

I think an attempt to politicize USAs poses more of a threat to democracy than who runs the freaking Travel Office.

[Tyrone Slothrop]

Originally posted by Mmmm, Burger (C.J.)
I don't see what standard one could use to assess a wrongful firing. Or what the remedy is. It's one thing to can a civil servant for race, politics, whatever--they can be reinstated. But anyone who serves at the pleasure of the President, serves at the pleasure of the president.

The only recourse is political. But the recourse seems even more political than the decision--right now there are primarily Democratic senators basically saying the president should not be able to terminate someone whom he appointed.

I guess it shouldn't surprise me, because the investigation is being led by senators. But if anyone has come out as most egregiously acting improperly it's probably Domenici, who was actively interfering (or seemingly so) in an ongoing investigation. Even taken at its worst, Bush fired prosecutors for failing to bring what he thought were meritorious cases.

Marty Lederman addressed this a few weeks ago:

• [O]thers have argued that because under current law the President can remove U.S. Attorneys for virtually any reason, there's really nothing to investigate here.
  
  Is that right?
  
  If there was any crime committed here, it was probably the "corrupt" influencing of a government proceeding. See 18 U.S.C. 1505 ("Whoever corruptly . . . influences, obstructs, or impedes or endeavors to influence, obstruct, or impede the due and proper administration of the law under which any pending proceeding is being had before any department or agency of the United States, . . . Shall be fined under this title, imprisoned not more than 5 years"); and 18 U.S.C. 1512(c)(2) ("Whoever corruptly . . . obstructs, influences, or impedes any official proceeding, or attempts to do so, shall be fined under this title or imprisoned not more than 20 years, or both.")
  
  If, say, Karl Rove, or Harriet Miers, or someone else in the White House, tried to pressure the U.S. Attorneys to drop investigations because the targets (e.g., Duke Cunningham) were Republicans, or to press certain investigations or prosectutions because the targets were Democrats (e.g., pressure to bring "vote fraud" cases regardless of whether there was any evidence of such fraud), that would arguably be an attempt to "corruptly" influence official proceedings -- to bring improper influences to bear on whether an investigation goes forward, or whether a prosecution is initiated. This is especially so because, as my colleague Julie O'Sullivan has explained in a very informative recent article (96 Journal of Criminal Law & Criminology 643, 697-708 (2006)), the definitions of "corruptly" in these statutes are exceedingly vague and capacious, and could easily encompass such behavior . . . if it that's what happened.
  
  What gives me pause about the prospect of violations of sections 1505 and 1512, however, is that presumably Karl Rove, Harriet Miers, et al., were serving as agents of the President. And the decision whether to prosecute a federal case under current law is ultimately the responsibility of the President himself. Can the President (or those acting on his behalf) "corruptly" influence decisions over which he himself has the ultimate authority? That seems like an odd notion (and would certainly be a novel application of the corrupt influence statutes), but I don't know enough about these criminal statutes to say for certain. (I would certainly welcome knowledgeable comments about these statutes as applied to this unusual situation.)
  
  In any event, even if the corrupt-influence statutes are inapposite here, pressuring the U.S. Attorneys to make prosecution decisions based on the partisan affiliation of the possible defendants would still be unlawful, because it would violate the President's constitutional obligation to take care that the laws are faithfully executed. Indeed, the very act of removing the U.S. Attorneys might itself constitute a "take care" violation if they were fired so as to prevent prosecution of Republicans, or to smooth the way for unwarranted prosecutions of Democrats. Just because the President can remove U.S. Attorneys at will does not mean that any ground for removal is permissible. There are constitutional limits. He could not fire them because of their religion or race, for instance. And he could not fire them in order to ensure partisan prosecutorail decisionmaking. As Stuart Taylor remarked on the NewsHour: "You fire the U.S. attorney because you want him to do more death penalty cases, that's fine. You fire him because you want a Republican, that's fine. You fire him because you want to put a patronage appointee in the job, that's fine. You fire him because he's not prosecuting Democrats or because he is prosecuting Republicans, that's not fine."
  
  And if such impermissible prosecutorial considerations had something to do with these removals, it's likely that the only evidence of that is in the White House itself, e.g., in internal documents.

He was at OLC for 8 years, so his views should carry some weight.

[Hank Chinaski]

Originally posted by Shape Shifter
I think an attempt to politicize USAs poses more of a threat to democracy than who runs the freaking Travel Office.

1) USAs are political appointments

2) given that graft is an integral part of most Southern Democrat party actions, you're probably correct that firing the internal travel agency to give work to clinton's cousin is really business as usual.

[Shape Shifter]

Originally posted by Hank Chinaski
1) USAs are political appointments

2) given that graft is an integral part of most Southern Democrat party actions, you're probably correct that firing the internal travel agency to give work to clinton's cousin is really business as usual.

1) Fine, but Democrats should not be prosecuted for being Democrats, and Republicans should not be exempt from prosecution for being Republicans, and vice versa. It appears that's what was going on here, and that's why Congress is, and should be, investigating.

2) Who cares?

[Mmmm, Burger (C.J.)]

Originally posted by Tyrone Slothrop
As Stuart Taylor remarked on the NewsHour: "You fire the U.S. attorney because you want him to do more death penalty cases, that's fine. You fire him because you want a Republican, that's fine. You fire him because you want to put a patronage appointee in the job, that's fine. You fire him because he's not prosecuting Democrats or because he is prosecuting Republicans, that's not fine."

Why is this not fine? And by "fine" I mean "not unlawful"? Selective prosecution has always gone on, and there's never really a cure for it. If a case has merit, why can't it be brought? If a case doesn't have merit, won't it be rejected by a grand jury or a jury?

The assumption all along here seems to be that not a single one of the prosecutions that the U.S. Attorneys failed to bring (or bring expeditiously) was arguably meritorious. Maybe they were; maybe they weren't. But don't we have a justice system that goes beyond the unilateral decision of a USA to bring a case to make sure that justice ultimately is vindicated?

If you show a pattern, isn't it a political issue in teh end? Vote for the D's--we won't prosecute people based solely on their party.

[Tyrone Slothrop]

Originally posted by Mmmm, Burger (C.J.)
Why is this not fine? And by "fine" I mean "not unlawful"? Selective prosecution has always gone on, and there's never really a cure for it. If a case has merit, why can't it be brought? If a case doesn't have merit, won't it be rejected by a grand jury or a jury?

The assumption all along here seems to be that not a single one of the prosecutions that the U.S. Attorneys failed to bring (or bring expeditiously) was arguably meritorious. Maybe they were; maybe they weren't. But don't we have a justice system that goes beyond the unilateral decision of a USA to bring a case to make sure that justice ultimately is vindicated?

If you show a pattern, isn't it a political issue in teh end? Vote for the D's--we won't prosecute people based solely on their party.

If another President were to come into office and demand the resignations of black U.S. Attorneys and only black U.S. Attorneys, and then were to say, "I'm the decider, bitchez, and I decided to can the black U.S. Attorneys" is it your view that he would be faithfully executed the laws of the United States? I'm thinking no.

Now, race has a different status than political affiliation under the Fourteenth Amendment, granted.

I note also that if you go back and read Lederman's post, it starts by quoting the White House as saying that these decisions were DOJ's, not the President's, and that he was uninvolved. Perhaps that guidance is no longer operative only a few weeks later, but it seems a little early to be staking out a completely contrary position.

[Secret_Agent_Man]

Originally posted by Adder
While you are certainly correct, we do not often go to that level of expense to recover previously deleted materials. Then again, I have never been involved in a case where there was an allegation that materials were deleted after there was an obligation to preserve them.

It is expensive, but it works. The data is generally recoverable unless someone worked real hard to make it not so. You do it is the data is potentially significant enough.

This sort of stuff is a big concern in litigation, especially with the new e-discovery amendments to the FRCP which finally address the reality of e-discovery and force it to be considered at every Rule 26(f) conference.

S_A_M

[Shape Shifter]

Originally posted by Mmmm, Burger (C.J.)
If it's not sent through a white house server, why would the white house retain it? It's the RNC's server, over which the WH presumably does not have control, and for which the retention requirements, and therefore the retention settings, are likely quite different.

• In a startling new revelation, CREW has also learned through two confidential sources that the Executive Office of the President (EOP) has lost over five million emails generated between March 2003 and October 2005. The White House counsel's office was advised of these problems in 2005 and CREW has been told that the White House was given a plan of action to recover these emails, but to date nothing has been done to rectify this significant loss of records.
  
  Melanie Sloan, executive director of CREW, said today, "It's clear that the White House has been willfully violating the law, the only question now is to what extent? The ever changing excuses offered by the administration Ð that they didn't want to violate the Hatch Act, that staff wasn't clear on the law Ð are patently ridiculous. Very convenient that embarrassing Ð and potentially incriminating Ð emails have gone missing. It's the Nixon White House all over again."

Oops.

[Secret_Agent_Man]

Originally posted by Hank Chinaski
Sounds like Rove won't have to steal bad documents from the Archives someday. They. Have. Been. Deleted.

let's move on.

wp, p.

S_A_M