Constitutional Capers

David Johnston and Eric Lipton write for the New York Times,

The Justice Department’s inspector general has prepared a scathing report criticizing how the F.B.I. uses a form of administrative subpoena to obtain thousands of telephone, business and financial records without prior judicial approval.

The report, expected to be issued on Friday, says that the bureau lacks sufficient controls to make sure the subpoenas, which do not require a judge’s prior approval, are properly issued and that it does not follow even some of the rules it does have.

Under the USA Patriot Act, the bureau each year has issued more than 20,000 of the national security letters, as the demands for information are known. The report is said to conclude that the program lacks effective management, monitoring and reporting procedures, officials who have been briefed on its contents said.

Details of the report emerged on Thursday as Attorney General Alberto R. Gonzales and other officials struggled to tamp down a Congressional uproar over another issue, the ousters of eight United States attorneys.

For the best analysis of what the FBI has been doing, you must read Glenn Greenwald.

Several Republicans have expressed disapproval of Gonzales and his, um, cavalier reading of the Constitution in recent days, Johnston and Lipton write. But other Republicans have separate constitutional issues.

For example, Congressman John Shadegg has introduced an Enumerated Powers Act. As I understand it, this act would require that every bill passed by Congress cite the specific part of the Constitution that gives Congress authority to do the thing it wants to do in the bill.

Which leads me to a vital question — what part of the Constitution gives Congress the authority to require that every bill passed by Congress cite the specific part of the Constitution that gives Congress authority to do the thing it wants to do in the bill? Hmmm?

If Congress took this seriously and made it retroactive it would mean the end of the Center for Disease Control (nothing about controlling disease in the Constitution), not to mention paper money. Although I’m all in favor of the government sticking to enumerated powers (especially war powers), if they were to start getting anally literal about it, the federal government would be rendered effectively inoperative. We’d have an 18th-century government in the 21st century. And the terrorists will have won. Or something. I suggest Shadegg’s bill amounts to a can of worms. On the other hand, if the President were to have to play by the same rules … let me think about that …

Meanwhile, although the Right Blogosphere has had little to say about the FBI’s unconstitutional abuse of power, they’re gleeful about an appeals court decision that struck down a District of Columbia gun control law. Eugene Volokh seems to think this decision, which upholds an individual rather than a collective right to keep and bear arms, will impact the 2008 elections somehow.

I doubt it. The Democrats have pretty much conceded gun control, especially as it pertains to an individual’s right to keep a firearm in his house, which is (I believe) what the DC law was about. The only gun control laws anyone seems to care about — and even then, not much — are the sort of laws that might prevent a schizophrenic Islamofascist with a felony record from buying a truckload of assault weapons at a gun show without having to submit to a background check. And even that seems like small potatoes compared to what the FBI is doing.

Justice in the Wood Chipper

Following up the last post, on the politicization of justice — speaking at the University of Arkansas Clinton School of Public Service, Karl Rove addressed the recent purge of U.S. attorneys.

“My view is this is unfortunately a very big attempt by some in the Congress to make a political stink about it,” he said. “The question is, did they have the same reaction if they were in the Congress in the ’90s or did they have the same reaction if they were in the ’80s? Every president comes in and appoints U.S. attorneys and then makes changes over the course of their time.”

Funny he should say that. In fact, the Republicans made a big stink when Bill Clinton replaced U.S. attorneys at the beginning of his first term. Shortly after her confirmation, Attorney General Janet Reno asked for the resignations of U.S. attorneys that had been appointed by Reagan and Bush I. As I explained here and here, this is standard practice for a president at the beginning of his first term. I believe Bush II replaced all of Bill Clinton’s appointees, and no one complained.

But in 1993 the GOP Noise Machine made the replacing of U.S. attorneys by Clinton into a big scandal. Wingnuts alleged that Clinton was trying to impede the investigation of Rep. Dan Rostenkowski. (Rostenkowski was indicted the following year; I assume the indictment was brought by a Clinton appointee.)

It is extremely unusual, however, for U.S. attorneys to be replaced in mid-term except for cases of gross misconduct, which doesn’t seem to be the case with the eight who have been purged so far.

As Paul Krugman wrote this morning,

For now, the nation’s focus is on the eight federal prosecutors fired by Attorney General Alberto Gonzales. In January, Mr. Gonzales told the Senate Judiciary Committee, under oath, that he “would never, ever make a change in a United States attorney for political reasons.” But it’s already clear that he did indeed dismiss all eight prosecutors for political reasons — some because they wouldn’t use their offices to provide electoral help to the G.O.P., and the others probably because they refused to soft-pedal investigations of corrupt Republicans.

In the last few days we’ve also learned that Republican members of Congress called prosecutors to pressure them on politically charged cases, even though doing so seems unethical and possibly illegal.

See also this editorial in yesterday’s New York Times:

The [congressional] hearings left little doubt that the Bush administration had all eight — an unprecedented number — ousted for political reasons. But it points to even wider abuse; prosecutors suggest that three Republican members of Congress may have tried to pressure the attorneys into doing their political bidding.

… Two of the fired prosecutors testified that they had been dismissed after resisting what they suspected were importunings to use their offices to help Republicans win elections. A third described what may have been a threat of retaliation if he talked publicly about his firing.

David Iglesias, who was removed as the United States attorney in Albuquerque, said that he was first contacted before last fall’s election by Representative Heather Wilson, Republican of New Mexico. Ms. Wilson, who was in a tough re-election fight, asked about sealed indictments — criminal charges that are not public.

Two weeks later, he said, he got a call from Senator Pete Domenici, Republican of New Mexico, asking whether he intended to indict Democrats before the election in a high-profile corruption case. When Mr. Iglesias said no, he said, Mr. Domenici replied that he was very sorry to hear it, and the line went dead. Mr. Iglesias said he’d felt “sick.” Within six weeks, he was fired. Ms. Wilson and Mr. Domenici both deny that they had tried to exert pressure.

John McKay of Seattle testified that the chief of staff for Representative Doc Hastings, Republican of Washington, called to ask whether he intended to investigate the 2004 governor’s race, which a Democrat won after two recounts. Mr. McKay says that when he went to the White House later to discuss a possible judicial nomination (which he did not get), he was told of concerns about how he’d handled the election. H. E. Cummins, a fired prosecutor from Arkansas, said that a Justice Department official, in what appeared to be a warning, said that if he kept talking about his firing, the department would release negative information about him.

At Raw Story you can watch (or read a transcript of) an interview with George Washington University law professor Jonathan Turley from Wednesday night’s Countdown. Be sure to watch (or read) this if you haven’t already. Here’s just a bit —

TURLEY: … First of all, it is very uncommon for U.S. attorneys to be fired or asked to resign. To have eight of them put in this position is truly unprecedented. It does send a very chilling message to other U.S. attorneys that, but for the grace of god, go you. These are very successful U.S. attorneys.

And what they‘re reporting about these phone calls is extremely unusual and extremely unsettling.

ALISON STEWART: The attorney general, Alberto Gonzales, told Congress the firings were not political at all. Now, has he backed himself into a corner, if it is proven in some way that they were fired for simply not toeing a political line?

TURLEY: Well, this is not the first time that Attorney General Gonzales has been challenged in terms of sworn testimony. He really had to say they were not fired for political reasons. He can hardly say we really needed to use the spot for some kid Karl Rove likes. That would not have gone over very well. What is really getting to a serious point, are the allegations that some of these U.S. attorneys seem to be threatened or thought they were being threatened about speaking to the media or the public.

Also, these calls from politicians really took me back. I have to tell you, I‘m a criminal defense attorney. I have been around the city in the criminal defense system for a long time. I find it shocking that politicians today would feel comfortable picking up a phone and calling the U.S. attorney about sealed indictments. It is other-worldly. …

… U.S. attorneys are supposed to retain an element of independence. They‘re not supposed to be constantly looking over their shoulder to see if Karl Rove is coming on them with a wood chipper.

One part of the U.S. attorney scandal has allegedly been resolved. Laurie Kellman reports for the Associated Press:

Slapped even by GOP allies, the Bush administration is beating an abrupt retreat on eight federal prosecutors it fired and then publicly pilloried.

Just hours after Attorney General Alberto Gonzales dismissed the hubbub as an “overblown personnel matter,” a Republican senator Thursday mused into a microphone that Gonzales might soon suffer the same fate as the canned U.S. attorneys.

“One day there will be a new attorney general, maybe sooner rather than later,” Sen. Arlen Specter, R-Pa., said during a Judiciary Committee meeting.

A short time later, Gonzales and his security detail shuttled to the Capitol for a private meeting on Democratic turf, bearing two offerings:

— President Bush would not stand in the way of a Democratic-sponsored bill that would cancel the attorney general’s power to appoint federal prosecutors without Senate confirmation. Gonzales’ Justice Department had previously dismissed the legislation as unreasonable.

— There would be no need for subpoenas to compel testimony by five of Gonzales’ aides involved in the firings, as the Democrats had threatened. Cloistered in the stately hideaway of Senate Judiciary Committee Chairman Pat Leahy, D-Vt., the attorney general assured those present that he would permit the aides to tell their stories.

The Justice Department is shifting from offense to accommodation.

Regarding the item about appointments without Senate confirmation — this refers to a clause in the Patriot Act that allows the Attorney General to appoint “interim” attorneys who can serve indefinitely without Senate confirmation. Jonathan Turley said of this provision:

According to Turley, the provision in the Patriot Act that allowed such firings was no accident. “When you see an administration trying to try to put into legislation something this specific, this tailored, it does not come out of nowhere,” said Turley.

“It did not come out of the head of Zeus,” Turley said. “It came out of the head of someone at the White House who wanted to use it. I think there are serious questions there and this is a scandal that is getting worse by the day.”

Now President Bush will not stand in the way of a Dem bill to revoke this little privilege. Just wait for the signing statement.

Politicization of Justice

Paul Krugman:

For those of us living in the Garden State, the growing scandal over the firing of federal prosecutors immediately brought to mind the subpoenas that Chris Christie, the former Bush “Pioneer” who is now the U.S. attorney for New Jersey, issued two months before the 2006 election — and the way news of the subpoenas was quickly leaked to local news media.

The subpoenas were issued in connection with allegations of corruption on the part of Senator Bob Menendez, a Democrat who seemed to be facing a close race at the time. Those allegations appeared, on their face, to be convoluted and unconvincing, and Mr. Menendez claimed that both the investigation and the leaks were politically motivated.

You might recall The Narrative about last fall’s Senate race in New Jersey — voters were being forced to choose between a corrupt politician (Menendez) versus a pure and clean Republican who agreed with Bush’s policy on Iraq. This is from an October 2006 Washington Times story:

Political observers say the outcome depends on whether voters here get angrier about Mr. Bush and the Iraq war or about state corruption.

“Is this going to be a national referendum or is it going to be a statewide referendum on state corruption?” said New Jersey Republican political consultant Mark Campbell. “If this is national, Menendez wins; if this is a statewide election on the need for reform … Tom Kean Jr. wins.”

“People deserve to know if their senator is the only senator under federal criminal investigation,” Mr. Kean said as he took a break Oct. 8 from shaking hands with the tailgating crowd at Giants Stadium in East Rutherford, N.J.

Kean Junior, whose father had been a popular New Jersey governor, ran a one-note campaign on the Menendez corruption charges. Menendez won, 53 percent to 45 percent. Whether there was any substance to the allegations against Menendez I do not know. What I do know is that the news stories about the alleged corruption dried up after the election.

It’s been a few weeks since I’ve written about the U.S. Attorney scandal, and I plan to catch up on the most recent developments later today. But for now I want to focus on Krugman’s point —

The bigger scandal, however, almost surely involves prosecutors still in office. The Gonzales Eight were fired because they wouldn’t go along with the Bush administration’s politicization of justice. But statistical evidence suggests that many other prosecutors decided to protect their jobs or further their careers by doing what the administration wanted them to do: harass Democrats while turning a blind eye to Republican malfeasance.

Donald Shields and John Cragan, two professors of communication, have compiled a database of investigations and/or indictments of candidates and elected officials by U.S. attorneys since the Bush administration came to power. Of the 375 cases they identified, 10 involved independents, 67 involved Republicans, and 298 involved Democrats. The main source of this partisan tilt was a huge disparity in investigations of local politicians, in which Democrats were seven times as likely as Republicans to face Justice Department scrutiny.

Righties will probably argue that Democrats are seven times more likely to be corrupt; to which I say, I doubt that.

And let’s not forget that Karl Rove’s candidates have a history of benefiting from conveniently timed federal investigations. Last year Molly Ivins reminded her readers of a curious pattern during Mr. Rove’s time in Texas: “In election years, there always seemed to be an F.B.I. investigation of some sitting Democrat either announced or leaked to the press. After the election was over, the allegations often vanished.”

It’s not just Democratic candidates. You might remember that at the beginning of 2003, Scott Ritter was trying to warn the world that the Bush Administration was cooking up phony evidence as a pretext for war. Out of the blue, a sealed court record about Scott Ritter was leaked to the press; details here.

“…it’s becoming clear that the politicization of the Justice Department was a key component of the Bush administration’s attempt to create a permanent Republican lock on power,” Krugman writes. Ya think?