Bork: "I Was Against Special Prosecutors Before I Was For Them Before I Was Against Them"

Scott Lemieux mocks a thoroughly odious column by Robert Bork in which he warns against the peril of Special Prosecutors (and fulminates about "the disgraceful performance of Patrick Fitzgerald"--naturally); Lemieux notes, of course, that Bork hasn't always felt this way.

The passage that caught my eye, though, was this one:

Richard Nixon was caught in that trap when he removed Richard Kleindienst as attorney general and nominated Elliot Richardson. Richardson, though a highly regarded veteran of several Cabinet posts, was required not only to promise a special prosecutor, but to name his candidate and to draft a charter satisfactory to the Judiciary Committee, guaranteeing the man’s independence. Though the man he named, Archibald Cox, performed well, special prosecutors in general have a very mixed record for devotion to justice rather than to partisan behavior, self-aggrandizement, or both. [emphasis added]

Bork, of course, is especially familiar with that part of the story.

Guess he didn't think it was important enough to mention.

The Only Question That Matters

Whichever cartoon supervillain Bush nominates to replace Gonzales--whether it's Skeletor or Gargamel or whoever--there's one question that should be dispositive in any confirmation hearing: will you enforce the subpoenas on Miers and Rove? Anyone who fails to give an unequivocally positive answer shouldn't make it out of the Judiciary committee.

Naturally, the Democrats have to lay the groundwork with talk about how the next AG's first job is to remove the cloud of suspicion from the DOJ, yadda yadda yadda. All of the Judiciary Committee Democrats need to go on all the Sunday bobblehead shows and hit the same basic talking point: the next AG has to be someone whose independence, integrity, and competence are absolutely unquestioned (and by 'unquestioned', read 'unquestioned by Democrats'). Even if Chertoff could fake the first two, incidentally, the last one should trip him up.

In the meantime, we've got Paul Clement running the show. I get a very mixed impression of him, but I think it's safe to say he's probably better than anyone Bush would nominate. He's also sufficiently respected that it'll be difficult for them to play the 'confrimation fight invites terrorism!' card. Not that they won't try...

But in the end, it all comes down to that one question, which is a proxy for a whole host of other questions (Is the AG the President's lawyer, or the nation's? Is the executive branch omnipotent, or accountable to Congress?). That's the line in the sand our Senators have to draw...and we need to tell them they have to draw it.

The Great Jerkoff Case of 2007

Guess what: the War On Pr0n has its very own Halliburton. Yes, the DOJ is paying an outside contractor to investigate naughtiness on the internets:

The grant, about $150,000 a year, has helped pay for Mr. Rogers and another retired law enforcement officer in Reno, Nev., to harvest and review complaints about obscene matter on the Internet that citizens register on the Justice Department Web site.

And how's that going? Well, I did make a Halliburton reference, didn't I?

In the last few years, 67,000 citizens’ complaints have been deemed legitimate under the program and passed on to the Justice Department and federal prosecutors.

The number of prosecutions resulting from those referrals is zero.

And with whom, you ask, is this contractor affiliated?

Morality in Media is a conservative religious group that has worked since 1962 to “rid the world of pornography” and whose headquarters is, improbably, on the Upper West Side of Manhattan.

I love this story. Really--what's not to love? It's got wacky Republican earmarks. It's got laughable incompetence. It's got the contracting of government services to politically-connected parties. It's got pandering to the Religious Right. It's got Alberto Gonzales, who decided it was a good idea to make porn a top priority of the DOJ (read that one--it's hilarious).

Best of all, it gives me an excuse to use one of my favorite lines from L. A. Confidential.

This isn't about the money; that's chump change. 150 grand wouldn't pay for five minutes worth of occupation. What it is is just one more illustration of the fact that these people aren't even trying to look like they take governing seriously.

Republicans Distracted by Shiny Object, Part LXVIII

There isn't a lot of good news for Republicans this morning. Gonzales' disastrous appearance yesterday has him on the brink of perjury charges. Bush is in the running for "most unpopular president in the history of modern polling". Conservatives are begging Bush to start talking about withdrawal.

So what are the wingnuts all blogging about?

Ward Churchill.
Ward Churchill.
Ward Churchill.
Ward Churchill.
Ward Churchill.
Ward Churchill.
Ward Churchill.
Ward Churchill.
Ward Churchill.

Because the firing of a nutty professor who has no following among liberals is a tremendous victory over the left. Obviously.

Gonzo Lied to Congress

Again? Why exactly is he still Attorney General? Perhaps we should begin referring to his fiefdom as the "Justice" Department.

As he sought to renew the USA Patriot Act two years ago, Attorney General Alberto R. Gonzales assured lawmakers that the FBI had not abused its potent new terrorism-fighting powers. "There has not been one verified case of civil liberties abuse," Gonzales told senators on April 27, 2005.

Six days earlier, the FBI sent Gonzales a copy of a report that said its agents had obtained personal information that they were not entitled to have. It was one of at least half a dozen reports of legal or procedural violations that Gonzales received in the three months before he made his statement to the Senate intelligence committee, according to internal FBI documents released under the Freedom of Information Act.

The acts recounted in the FBI reports included unauthorized surveillance, an illegal property search and a case in which an Internet firm improperly turned over a compact disc with data that the FBI was not entitled to collect, the documents show. Gonzales was copied on each report that said administrative rules or laws protecting civil liberties and privacy had been violated.

The reports also alerted Gonzales in 2005 to problems with the FBI's use of an anti-terrorism tool known as a national security letter (NSL), well before the Justice Department's inspector general brought widespread abuse of the letters in 2004 and 2005 to light in a stinging report this past March.

Oops. Not to worry, though. "Justice" officials said they couldn't recall if he'd actually read the reports.

Justice officials said they could not immediately determine whether Gonzales read any of the FBI reports in 2005 and 2006 because the officials who processed them were not available yesterday. But department spokesman Brian Roehrkasse said that when Gonzales testified, he was speaking "in the context" of reports by the department's inspector general before this year that found no misconduct or specific civil liberties abuses related to the Patriot Act.

To borrow yet again from Buffy, "Nothin' to see, move it along, I'll never tell!" Ya think Gonzo can dance too?

Crossbow-posted at Birmingham Blues.

Gonzo's Hospital Raid: Some Context

The big question about the dramatic incident Comey testified to the other day is this: if the NSA surveillance program had already been going on for two years, why was it suddenly an issue in March of 2004?

An e-mailer to TPM Muckraker provides a likely answer:

October 3, 2003...the Senate confirms Jack L. Goldsmith as the Assistant Attorney General for the Office of Legal Counsel. In June, with Goldsmith’s nomination before the senate, John Yoo had left his job as the deputy at OLC....

Fast forward to December 11, 2003, when Comey is confirmed as Deputy Attorney General. He immediately assumes a more aggessive posture than his predecessor, Larry Thompson....

Thompson had not been authorized access to the details of the NSA program. But, reports the NYTimes, “Comey was eventually authorized to take part in the program and to review intelligence material that grew out of it” (1/1/06). He set Goldsmith to the task of sorting through the program’s dubious legality....

Suddenly, the March 11 date comes into clearer focus. For the first time, trained and qualified attorneys within the Justice Department had conducted a careful review of the program. Comey took the evidence he had gathered to Ashcroft....By the end of that meeting, Ashcroft and Comey had “agreed on a course of action,” to wit, that they “would not certify the program as to its legality.”

....For two and a half years, Ashcroft signed off on the program every forty-five days without any real knowledge of what it entailed. In his defense, the advisors who were supposed to review such things on his behalf were denied access; to his everlasting shame, he did not press hard enough to have that corrected.

When Comey came on board, he insisted on being granted access, and had Goldsmith review the program. What they found was so repugnant to any notion of constitutional liberties that even Ashcroft, once briefed, was willing to resign rather than sign off again.

The White House (i.e., Dick Cheney and David Addington) did everything they could to shield their dirty little program from scrutiny, not just from Congress but from their own Department of Justice. That fact, and the fact that once it did come under review nobody with a modicum of integrity was willing to approve it, tells us just how dirty it was.

Comey's testimony ended with both Specter and Leahy discussing a closed-door hearing with Comey on the specifics of the program. Finally, five years after the NSA program began, three years after Comey was willing to give up his job to stop it, we may finally get some answers on what exactly they were up to.

More Gonzales Skullduggery Revealed in Comey Testimony

I know it seems like there have been dozens of revelations about the current administration, each of which should have been the tipping point, the event that precipitates the ultimate downfall, but the picture that emerges from the testimony of former Deputy Attorney General James Comey -- the number two man at the Justice Department -- to the Senate Judiciary Committee yesterday is of the kind of skullduggery that would make Nixon blush.

Essentially, Gonzalez (when he was White House Council) and Andrew Card tried an end-around when then-A.G. John Ashcroft and the DOJ refused to reauthorize the NSA spying, first by confronting Ashcroft in the intensive care unit of the hospital where he was very ill, then by trying to pressure and/or intimidate Comey, who refused to meet with Card without the Solictor General as a witness. It gets very Hollywood very quickly. This Washington Post editorial sums up the narrative quite well, and concludes:

Now, it emerges, they were willing to override Justice if need be. That Mr. Gonzales is now in charge of the department he tried to steamroll may be most disturbing of all.

The transcript of the session has its light moments, such as this one as Chuck Shumer finishes introducing Comey:

I especially appreciate Mr. Comey's coming to testify here without the formality of a subpoena. In order to secure Mr. Comey's presence, I would have moved for consideration of a subpoena by the committee, but I'm glad that wasn't necessary because of your cooperation.

As far as I'm concerned, when the Justice Department lost Jim Comey, it lost a towering figure. And I don't say that because he stands 6'8" tall. When Jim left the department, we lost a public servant of the first order, a man of unimpeachable integrity, honestly, character and independence.

And now I'd like to administer the oath of office. Would you please rise?

I'm sorry. I wish we were administering the oath of office.

(LAUGHTER)

I think it's pretty clear everyone wishes it was someone of Comey's character and not Alberto Gonzales' that was in charge of the Justice department now. It's that divide between those in the administration (including, surprisingly, Ashcroft) that still held some regard for the rule of law, and the ones who don't, that's laid bare here. The sum and the details of the testimony are disturbing, shocking, chilling -- you name it. It's the cloak-and-dagger stuff that usually gets dismissed as liberal tin-hat conspiracy-mongering, except that it's there in black and white this time.

Well, Duh

The Washington Post reports that Monica Goodling was--surprise--hiring only Republicans:

The Justice Department has launched an internal investigation into whether Attorney General Alberto R. Gonzales's former White House liaison illegally took party affiliation into account in hiring career federal prosecutors, officials said yesterday.

The allegations against Monica M. Goodling represent a potential violation of federal law and signal that a joint probe begun in March by the department's inspector general and Office of Professional Responsibility has expanded beyond the controversial dismissal of eight U.S. attorneys last year.

Did anyone have any doubt that she was doing this, even before reading this?

But the thing is, I'm convinced that Goodling had no idea it was wrong to make party affiliation a condition of hiring. Therein lay her usefulness. If you know something is illegal, you get someone to do it who doesn't know. As ever, it's all about the plausible deniability: clueless apparatchiks Goodling and Sampson carried out Rove's orders, insulating him from the repercussions of their illegality.

Incidentally, Josh Marshall notes that this investigation could nullify the immunity offer from Congress, which would keep them from forcing her to testify. Is it a bug or a feature? An unfortunate side effect of the DOJ investigation, or the point of the thing?

More insulation.

How's the Weather on Planet Wingnut?

I'm sure most of you saw the Wall Stree Journal article connecting U.S. Attorney Paul Charlton's firing to the investigation of Rick Renzi:

As midterm elections approached last November, federal investigators in Arizona faced unexpected obstacles in getting needed Justice Department approvals to advance a corruption investigation of Republican Rep. Rick Renzi, people close to the case said.

The delays, which postponed key approvals in the case until after the election, raise new questions about whether Attorney General Alberto Gonzales or other officials may have weighed political issues in some investigations. The Arizona U.S. attorney then overseeing the case, Paul Charlton, was told he was being fired in December, one of eight federal prosecutors dismissed in the past year.

It's a damning story, and Josh Marshall has more damning details. It's one more solid indication that the DOJ leadership (or Rove, via the DOJ leadership) was interfering in political investigations.

Over at the Corner, Byron York saw it too, and came to a conclusion that is somewhat...counter-intuitive:

In light of that, one might think that it might be a good idea to investigate whether someone inside the Justice Department was out to get Renzi, rather than protect him.

Seriously. I can't make this shit up. I mean, this is really just kind of sad and desperate.

Nutty as it is, though, it's a useful illustration of how the game is played. If you cherrypick every seemingly exculpatory detail ("It's a complicated case, and complicated cases take a long time....It was an unusual case, with unusual timing....the Justice Department approved the investigative tactics...before the election.") while dismissing the broader story, you can build a bogus case for the innocence of the thing. If you also focus obsessively on the one detail that suggests unethical behavior by somebody else (" The supposedly super-secret investigation was made public shortly before the election in an ugly, aggressively timed, and probably politically motivated leak."), you can spin a story into its exact opposite: Renzi is the victim here, and Charlton is the villain.

And the thing is, I'm convinced that most of them don't even do this consciously; this is just how they perceive the world. They really do live on another planet.

Prosecutor Purge: The Motivation Is What Matters

Gonzo's testimony was great entertainment, but to me it was a disappointment in one respect: I thought there was far too little about the motivation behind the purge, about the way they used the DOJ to suppress minority turnout and perpetuate Republican rule. That's a first impression, and maybe a fuller reading of the transcript will correct it; but for now, at least: disappointed.

Happily, McClatchy has a must-read article that gets the big picture behind the prosecutor purge better than anything else I've read in the mainstream press. Here's the first sentence:

For six years, the Bush administration, aided by Justice Department political appointees, has pursued an aggressive legal effort to restrict voter turnout in key battleground states in ways that favor Republican political candidates.

And about halfway through, there's this:

On virtually every significant decision affecting election balloting since 2001, the division's Voting Rights Section has come down on the side of Republicans, notably in Florida, Michigan, Missouri, Ohio, Washington and other states where recent elections have been decided by narrow margins.

This is the essential background for everything, the story to cite when Republican hacks try to disconnect the dots. Read. The. Whole. Thing.

(Hat tip: Josh Marshall)

What Hearing Was He Watching?

Bush was pleased with Alberto Gonzales' performance at today's hearings, and "the Attorney General has the full confidence of the President", according to a White House press release. Apparently, Sen. Tom Coburn (R-OK) didn't get the memo, because he called for Gonzales to resign during his questioning.

There "has to be consequences" for the management and leadership failure under Gonzales' watch. It's "generous to say that there were misstatements" by Gonzales and others, Coburn said. "I believe that you ought to suffer the consequences," he said, adding that Gonzales ought to be judged by the same standards with which he judged the U.S. attorneys.

Maybe it's Bush who missed the memo; with the exception of Orrin Hatch, the Republican members of the Judiciary Committee raked Gonzales over the coals today. They've had it with his "misstatements" and incompetence, and I suspect they think it's time for him to fall on his sword. We'll see if he got the message.

Cross(examination)-posted at Birmingham Blues.

Gonzo Doth Protest Too Much

I logged on this morning to find Mustang Bobby's pithy condensation of Alberto Gonzales's Washington Post op-ed. Mustang Bobby's analysis:

“I did nothing wrong, and if I did, it was someone else’s fault. Oh, look at the kitty!”

If Bobby will forgive me, I have some additional thoughts.

First, I'll echo Bobby in noting that the title of the piece, "Nothing Improper," just reeks of protesting too much. It's a real OMFG moment when you realize that's the best he can come up with. A latter-day "I am not a crook." Hey, Gonzo? "Yes you are."

I am very struck by this phrase:

I know that I did not -- and would not -- ask for the resignation of any U.S. attorney for an improper reason.

He "knows" that he didn't and wouldn't. Why the extra layer? Why not just "I didn't"? It's like the evidence is so flimsy (non-existent would be more accurate), that he has to instead talk about his gut instinct. "Okay, it looks like I did it. But I didn't! I know I didn't!" It's like a film noir; "Don't you know me? Can't you tell I'm innocent? I am, I tell you, I am!" Maybe the pod people are to blame.

While I have never sought to deceive Congress or the American people, I also know that I created confusion with some of my recent statements about my role in this matter.

By lying.

Now here's a fun one:

I directed my then-deputy chief of staff, Kyle Sampson, to initiate this process; fully knew that it was occurring; and approved the final recommendations. Sampson periodically updated me on the review. As I recall, his updates were brief, relatively few in number and focused primarily on the review process.

During those conversations, to my knowledge, I did not make decisions about who should or should not be asked to resign.

"To my knowledge." Holy shit, that's just wrong. You either did or you didn't. Or you can slither and slime your way through not recalling. But it is not possible to order resignations (or "make decisions about" ordering resignations) without knowing. Not. Possible.

(I believe it is possible that I know I cross-posted.)