AG Mukasey Tells Congress to Shove It

I'm happy the new Attorney General Mike Mukasey has the guts to tell Nancy Pelosi he won't be enforcing her contempt citations against Josh Bolten and Harriet Myers.

Saying no crime was committed, Mukasey rejected a request by House Speaker Nancy Pelosi to refer the citations to a federal grand jury investigation of current White House chief of staff Josh Bolten and former White House counsel Harriet Miers.

"The Department has determined that the non-compliance by Mr. Bolten and Ms. Miers with the Judiciary Committee subpoenas did not constitute a crime, and therefore the Department will not bring the congressional contempt citations before a grand jury or take any other action to prosecute Mr. Bolten or Ms. Miers," Mukasey said in a letter to Pelosi.

Via Patterico's Pontifications and Hot Air.

Ed Morrissey at Hot Air says Congress could file a lawsuit to compell the A.G. to prosecute, but that would put the judiciary in the middle of a sibling fight that's been brewing between the executive and legislative branches for a long time. That's a position the Supreme Court is not anxious to claim.

In this case, though, the House has been itching for a fight. The White House has offered to meet the committee members partway, but they have insisted on demanding that the Bush administration give up its claim on executive privilege instead — which no one ever believed they would do. Mukasey found that Bush’s use of executive privilege meets legal requirements.

Now the courts will have to make a decision that will make one branch or another very unhappy, and for a very long time — all over terminations that were obviously in the purview of the executive, and after a fishing expedition that produced nothing more than an incompetent AG. Thankfully, we have a much more talented replacement at the helm.

This is yet another ridiculous case of Democrats wanting headlines versus doing anything substantive. It's clearly part of the executive's privilege to hire or fire the attorneys in question. For any reason. That's what "serving at the pleasure of the president" means, after all.

It Ain't Perjury

Ruth Marcus of the WaPo says Attorney General Alberto Gonzales didn't commit perjury, so Democrats wanting to turn this into Watergate should sit their asses down.

Well, ok, she didn't say it exactly that way. This is what she said:

In his Senate testimony last week, Gonzales once again dissembled and misled. He was too clever by seven-eighths. He employed his signature brand of inartful dodging -- linguistic evasion, poorly executed. The brutalizing he received from senators of both parties was abundantly deserved.

But I don't think he actually lied about his March 2004 hospital encounter with then-Attorney General John Ashcroft. I certainly don't think he could be charged with -- much less convicted of -- perjury.

It's really no wonder Democrats have latched onto perjury charges as the magic bullet to fell Republicans. They used it against Scooter Libby, who perjured himself when no crime was committed. They've tried repeatedly to say every person in the White House--from the President to the janitor (well, almost)--have lied about a whole host of issues: WMDs, reasons for war in Iraq, Cheney's energy summit, Halliburton, the government's role in 9/11, Halliburton, the Patriot Act, Halliburton, and, well, Halliburton.

Now Democrats are hopping up and down trying to get a perjury charge against Gonzales, a Bush loyalist from the days when he was governor. It seems like the Dems strategy is to investigate, investigate, investigate, and when they don't find anything, just make shit up. After all, they have the nutroots ready to lick their boots at every opportunity.

The White House and Executive Privilege

Captain Ed suggested and participated in a conference call with the White House to discuss the administration's view of executive privilege. This is an extremely important issue, what with Congress' attempt to usurp presidential power of appointment (as well as other powers).

As Patterico pointed out in this post to which I linked earlier, there is a governmental power grab here, but the branch grabbing power is Congress, not the president.

The president has always had the power to hire and fire at will concerning executive branch employees. U.S. attorneys are executive branch employees. As the White House rightly points out, this fracas is simply an attempt to embarrass and bully the White House and has no historical basis whatsoever. Coupled with the fact that the Bush administration has repeatedly cooperated with Congress--by providing thousands of pages of documentation and offered to allow questioning (without oath or transcript) of various White House officials--it is obvious that the purpose of this "investigation" isn't to find out what happened to the fired attorneys. It is to cripple the executive branch's powers.

Read the Q&A at Captain's Quarters for more information.

The Assault on Prosecutorial Independence

U.S. Attorneygate has reached new depths with the news that Congress has issued contempt citations for Harriet Miers and Josh Bolten.

Patterico has an excellent post analyzing what is happening in this case.

Glenn Greenwald has argued that the showdown between Congress and President Bush over executive privilege is an example of one branch of government asserting extraordinary and unprecedented powers that properly belong to another branch. He says that the overreaching branch is mounting an “assault on prosecutorial independence.”

He’s right about that. But he’s wrong about which branch is out of control. It’s not the executive branch. It’s Congress.

We are witnessing an attempt by Congress to take over a core function of the executive branch: the duty to execute the laws, which includes the discretion over when to prosecute violations of criminal law. Despite what Big Media would have you believe, this controversy isn’t about President Bush exerting undue influence over United States Attorneys. It’s about Congress trying to usurp the executive’s constitutional powers, by trying to force the Department of Justice to bring a prosecution that DoJ believes should not be brought. And it’s about congressional attempts to destroy any notion of executive privilege, by summoning executive officials before various congressional committees to interrogate them about high-level executive deliberations.

President Bush’s arguments on these issues are consistent with similar assertions of privilege made by at least six presidential administrations — both Republican and Democrat — since the 1950s. His position is supported by case law, logic, and the structure of the Constitution.

Patterico's post is worth the read.

President Invokes Executive Privilege

President Bush invoked executive privilege in refusing to turn over subpeonaed documents and testimony about U.S. Attorneygate.

Captain Ed discusses the possible effects of this showdown.

This still strikes me as a scandal in search of any real wrongdoing. Despite having chewed on this for months, Congress has found only incompetence. No one thinks that the President or the Attorney General can't dismiss prosecutors, regardless of how badly they did it. Critics of the administration want to find nefarious plots to cover up the administration's supposed crimes, but even the terminated attorneys don't claim that. One, David Yglesias, alleges that Pete Domenici (R-NM) got him fired for not aggressively pursuing corruption charges against two Democrats, which might be more properly pursued in the Senate Ethics Committee.

So far, though, incompetence and cronyism is all they've found, and they have no probable cause to pursue executive-branch materials or testimony. That won't stop them from trying to get it, and the case law isn't crystal-clear in this regard. Most of the relevant court decisions regarding executive privilege date back to Watergate, and the precedent seems a bit daunting for the White House. Executive privilege has been upheld, but so also has Congress' check on executive power, and this may be close enough to the mark to lose a challenge.

Ed thinks the White House's reasoning is shakier with regards to the warrantless surveillance program. The worst part is that all of the legal maneuvers will play out through the next election cycle and it isn't clear who will be more damaged by it. I guess we'll just have to see.

Spaghetti-Spined in Subpoenaville

Captain Ed has a good, albeit depressing, analysis of the on-going smear campaign over the U.S. Attorneys.

Democrats took control of Congress on the promise to launch investigations into the Bush administration, and they are fulfilling that pledge. The subpoenas themselves do not surprise much, although the one to Comdoleezza Rice might run into some legal wrangling depending on the subject matter. Everyone widely expected the investgations to take the widest possible viewpoint and get conducted in the most confrontational style possible.

The fact that the Democratic majorities got so much Republican support in each instance may come as a shock to the White House, though. Goodling's immunity only got opposed by six Republicans on the committee, where 17 GOP Representatives serve. Seventeen Republicans sit on Henry Waxman's Oversight Committee, and only 10 opposed the Rice subpoena. We have no word on the Senate Judiciary Committee vote on teh Sara Taylor subpoena, but given the hostility of the Republicans during and after the Alberto Gonzales testimony, it's doubtful that it passed on a 10-9 vote.

This does not bode well for the White House. The President's insistence on keeping Gonzales in place has apparently angered his GOP allies on the Hill. It also has provided no barrier to other investigations, and it appears the Democrats have no problem staying aggressive regardless of whether Gonzales stays or goes.

Practically speaking, though, these subpoenas will have little effect. Rice will go before Congress and tell them -- again -- that they saw the intelligence prior to the Iraq invasion, and that it was basically the same as it was during the Clinton administration. No one faked anything, and the one piece that people use to claim Bush lied (a) was based on Joe Wilson's misrepresentation of his findings in Niger, and (b) still backed by British intelligence, where it originated. Goodling may say something damning, or all they may have bought with immunity is a confirmation that the entire mess was nothing more malevolent than incompetence.

But get used to this. We have two years to live in Subpoenaville.

Ed's right, of course. The Democrats are showing that they are clearly not interested (and unable) to pass legislation, so they are going to use the next two years to bludgeon the Bush administration, hoping it will lead to landslide victories for them in '08. I'm not convinced that will happen, but we will see.

Ed links to this interesting piece explaining why no Republicans are defending Gonzales.

Throughout her tumultuous tenure as attorney general, Janet Reno could always rely on Democrats and liberals to circle the wagons when critics ripped her judgment, competence, and forthrightness. They’d close ranks when the opposition claimed her Justice Department elevated political considerations over legal ones. By contrast, in Alberto Gonzales’s present hour of need, his only enthusiastic supporter appears to be the president. Why?
Because of politics. Not politicization, as in partisan obstruction of particular investigations. Rather, good, old-fashioned politics in the best sense of the word: namely, an administration’s accountability to its supporters and its fealty to the policies that induced their support.

The Reno Justice Department, whatever else you may think about it, cared passionately about signal “progressive” causes and backed them to the hilt, regardless of criticism. To the contrary, the Gonzales Justice Department and, indeed, the president, often turn spaghetti-spined when the priorities of their base are at stake. How surprising, then, that when friends are most sorely needed there are none to be found.

In my opinion, this is the reason Republicans lost the 2006 elections. It wasn't the war. It was the overspending by Congress, the pro-illegal alien stance of the White House, the incompetent nomination of Harriet Miers to the Supreme Court, the president's tin ear with concern to Republican interests. If Rove has been misusing the White House for Republican political manipulations, he has done a poor job of delivering the very sorts of items that would have made such manipulations unnecessary. In short, the president has lost the base because he never took the base seriously.

It's Their Watergate Break-In

With the demand for more e-mails and the acknowledgement that many are missing, we now have a full-fledged Democratic witch hunt on the president.

Make no mistake, folks. This is a fishing expedition designed to find something--anything--with which Democrats can bring impeachment proceedings.

Let's face it. They struck out with Plamegate. They struck out with the U.S. attorney flap. So, now they have to go root around in RNC e-mails ostensibly to find out if the administration is "hiding" anything about Attorneygate, but actually to get unfettered access to private conversations of the minority party.

Captain Ed puts it best.

First, let's acknowledge one danger presented by the investigation into the termination of the prosecutors. Congress, led by Henry Waxman, now threatens to subpoena the internal communications of the minority party. That would not just expose whatever the Democrats claim the messages contain about the firings, but the political strategies of high-level Republican Party activists. The government has no business snooping in those deliberations; in fact, it would be the Congressional equivalent of the Watergate break-in.

If the federal government can force political parties to divulge those deliberations for anything less that an explicit criminal investigation, then Big Brother has arrived -- and we still have no underlying crime for this investigation. All we have is a very questionable decision to fire US Attorneys and a Keystone Kops follow-up to the ensuing criticism. The internal deliberations of political parties should remain shielded from the subpoena power of Congress or the executive branch for issues as petty as what we have here, lest we do permanent damage to our freedom of political action.

Nevertheless, as Captain Ed points out, this is all a direct result of the administration's mishandling of this affair. From the ill-prepared Gonzalez before Congress to the deletion of e-mails from RNC accounts, the administration hasn't handled this affair very well.

But Congress shouldn't use the supposedly legitimate excuse of wanting more info on the attorneys to allow them to root through private political correspondence. Such behavior will damage both parties and, I guarantee, will come back to bite the Democrats right on their big, fat behinds.

UPDATE: Patterico discusses the liberal spin the L.A. Times is putting on this story.

Thinking Like a Lawyer from a Christian Perspective

Monica Goodling's announcement that she will take the Fifth in any testimony she is forced to give Congress has placed Regent University School of Law directly in the crosshairs of liberals.

What is Regent University School of Law? Besides the alma mater of Goodling, it is the Christian law school Pat Robertson started about 20 years ago.

This Boston Globe story by Charlie Savage does a good job of showing the warts of Regent along with the vast improvement in the school.

Regent was accredited in 1996 by the American Bar Association, but the school's bar passage rate has been abyssmal (a failure rate as high as 60%).

Goodling is a product of that school, and the current "scandal" over the use of presidential power to fire political appointments has raised questions about the sorts of attorneys hired to make recommendations. In Goodling's case, she has no prosecutorial experience, yet was making recommendations about who should stay and who should go.

But even in its darker days, Regent has had no better friend than the Bush administration. Graduates of the law school have been among the most influential of the more than 150 Regent University alumni hired to federal government positions since President Bush took office in 2001, according to a university website.

One of those graduates is Monica Goodling , the former top aide to Attorney General Alberto Gonzales who is at the center of the storm over the firing of US attorneys. Goodling, who resigned on Friday, has become the face of Regent overnight -- and drawn a harsh spotlight to the administration's hiring of officials educated at smaller, conservative schools with sometimes marginal academic reputations.

Documents show that Goodling, who has asserted her Fifth Amendment right against self-incrimination to avoid testifying before Congress, was one of a handful of officials overseeing the firings. She helped install Timothy Griffin , the Karl Rove aide and her former boss at the Republican National Committee, as a replacement US attorney in Arkansas.

Because Goodling graduated from Regent in 1999 and has scant prosecutorial experience, her qualifications to evaluate the performance of US attorneys have come under fire. Senator Sheldon Whitehouse, Democrat of Rhode Island, asked at a hearing: "Should we be concerned with the experience level of the people who are making these highly significant decisions?"

And across the political blogosphere, critics have held up Goodling, who declined to be interviewed, as a prime example of the Bush administration subordinating ability to politics in hiring decisions.

Frankly, I would be impressed with the current concern about qualifications over politics if I were certain the Democrats levelling the charges had shown the same sorts of concerns over Democratic appointments in the past. Unfortunately, I'm not convinced of that.

Regent University School of Law was founded as a Christian law school, designed to churn out Christian lawyers who would make the cases and arguments Christians need made to win in courts of law.

I've written previously that law school teaches you to "think like a lawyer." Unfortunately, most law schools will also teach you to "think like a liberal lawyer." That end is reached by belittling conservative arguments during mock debates or classroom discussions when liberal law professors bully their students. It's also accomplished when students are guided into pro bono work for organizations like the American Civil Liberties Union and discouraged from joining the Christian Legal Society.

Savage's story points out (near the bottom, of course) that Regent's bar passage rate has improved dramatically in the last 10 years as the school tightened admissions requirements and course curriculum, and that the school has won numerous prestigious moot court and negotiations competitions.

The bar exam passage rate of Regent alumni , according to the Princeton Review, rose to 67 percent last year. Brauch said it is now up to 71 percent, and that half of the students admitted in the late 1990s would not be accepted today. The school has also recently won moot-court and negotiation competitions, beating out teams from top-ranked law schools.

Adding to Regent's prominence, its course on "Human Rights, Civil Liberties, and National Security" is co taught by one of its newest professors: Ashcroft.

Even a prominent critic of the school's mission of integrating the Bible with public policy vouches for Regent's improvements. Barry Lynn , the head of the liberal Americans United for the Separation of Church and State, said Regent is churning out an increasingly well-trained legal army for the conservative Christian movement.

"You can't underestimate the quality of a lot of the people that are there," said Lynn, who has guest-lectured at Regent and debated professors on its campus.

In truth, the change in Regent is very discomforting for the left, who don't like Christian lawyers because they might change the law.

actually I do see a problem with Christian legal scholarship, and particularly with the extent of its influence in Bush's America. The Federalist Society may not be any better, but how is it possible for religious (in this case conservative evangelical Christian) legal scholarship not to distort the law according to its own religious purposes? If you're out to do God's work, after all, you likely won't have much time to do the work of a secular liberal democracy with safeguards against religious rule like the United States. (Read some Thomas Jefferson.) Unless, of course, you think that doing God's work is also doing America's work, that America is -- or should be -- God's political expression on earth. Or, looking at it another way, unless you think that America isn't a secular liberal democracy at all but rather a theocracy that has been taken over by secular liberal democrats.

Regardless, there is something profoundly anti-American about this Christian leadership out to change the world. It's bad for America, which isn't the theocracy these zealots imagine it to be, and likely also bad for Christianity, which ought to concern itself not with politics but with faith.

What Michael Stricklings fails to see is that our legal system is built on advocacy, and that advocacy can be for good and ill. The fact is, in our adversarial system, the best argument wins. What Stricklings and ACLU types are concerned about is that Regent will turn out enough good lawyers who make better arguments and win more cases than the liberals do. It would be a shame if Christians beat them at their own game, wouldn't it?

I feel sorry for the Stricklings and their ilk in this country. Just as Amanda loathes religious arguments for policies, Strickling is fearful of "theocracy," which is liberalspeak for "laws liberals disagree with." It's ok when the law is applied in a way that is considered immoral by Christians or that restricts religious belief, behavior, or influence. But don't let Christians win the legal arguments or it's a theocracy.

Because Only Conservatives Are Hypocrites, Don't Ya Know?

Patterico has an interesting post on this E.J. Dionne column where E.J. can only find hypocrisy from the right.

The senator vigorously rejected the president’s claim of executive privilege. "I find this extraordinary and troublesome," he said, "and I think it will ultimately be damaging to the president...This is an attempt to stonewall our committee, and the public will be outraged."

Doesn’t that sound like one of those tough statements by Sen. Charles E. Schumer of New York, the Democratic point man on the U.S. attorney scandal? The speaker was actually the Republican whom Schumer defeated nine years ago, Alfonse D’Amato, discussing Bill Clinton’s invocation of executive privilege in the Whitewater investigation. Nice to see Chuck and Al agree on something.

The problem is, Alfonse D'Amato is no longer in the Senate. As Patterico points out, if Dionne really wanted to see hypocrisy in action, he could have written this instead:

The senator vigorously defended the president’s claim of executive privilege. "I do not believe we should be issuing subpoenas to the Justice Department unless that step is absolutely necessary," he said. "I would also like to discuss with the Chairman about following the model we used in the Ruby Ridge hearings. As I recall, to ensure the bipartisan nature of the investigation, the Subcommittee Chairman issued subpoenas only with the consent of the Ranking Member."

Doesn’t that sound like one of those defensive statements by Sen. Orrin Hatch, the staunch defender of the Administration on the U.S. attorney scandal? The speaker was actually the man who was the ranking member eight years ago, Pat Leahy, discussing Bill Clinton’s invocation of executive privilege in the investigation of questionable pardons. Nice to see Pat and Orrin agree on something.

Patterico discusses the origins of that quote here. But don't hold your breath waiting for Dionne to use it.

Stephanopolous's Short Memory

Memory...ah, memory. Such an ephemeral thing, especially when one was associated with the Clinton White House.

I'm speaking specifically of George Stephanopolous, who seems to have forgotten his role in the 1993 firing of 93 U.S. attorneys.

Mark Lasswell at OpinionJournal says that Stephanopolous knows more about firing attorneys than he lets on. (Via NewsBusters).

Facing up to the reality that, alas, many folks these days like to get their news from "The Daily Show with Jon Stewart," ABC News has added comedy to the mix.

How else to explain those hilarious skits when Chief Washington Correspondent George Stephanopoulos reports on the brouhaha over the Justice Department's firing of eight U.S. attorneys while the proverbial elephant in the room is lurking just off-camera?

Mr. Stephanopoulos doesn't mention his own valuable expertise on the subject of fired federal prosecutors, the kind of expertise that might help place the current mess in context. Mr. Stephanopoulos was the Clinton White House communications director in 1993 when the Justice Department cleaned its slate of all 93 U.S. attorneys, and he was central to the administration's finessing of the episode--just the sort of insider experience, presumably, that prompted ABC News to hire Mr. Stephanopoulos fresh out of the White House in 1996...

At the risk of putting a damper on all the fun, here's a primer on the sort of White House experience that ABC's chief Washington correspondent could draw on to enlighten viewers.

First of all, misleading messages from a hapless attorney general can be corrected: Janet Reno had only been on the job for a matter of days when she announced the blanket dismissal of U.S. attorneys in March 1993, and she bungled the job, letting word get out that prosecutors involved in significant investigations would be allowed to complete them. As was noted at the time, this would have meant that an ongoing investigation of the powerful House Democrat and vital Clinton ally, Dan Rostenkowski, by the U.S. attorney for the District of Columbia, Jay Stephens, would continue uninterrupted.

The White House, or rather Mr. Stephanopoulos, quickly torpedoed that idea. In a press briefing, he announced that among the prosecutors whose resignations had been demanded, "there are at least some people who are in the middle of trials right now who will not be replaced." Trials, he specified, not investigations. "Interestingly," a Hartford Courant editorial noted back then, "Miss Reno didn't explain the impending dismissals. The president's personal spokesman, George Stephanopoulos, did the fast talking."

Lesson number two: When the White House comes under suspicion of politicizing the process of replacing federal prosecutors, don't deny it. In 1993, when a reporter asked Mr. Stephanopoulos about the origins of Ms. Reno's decision to jettison all the U.S. attorneys, the exchange went like this:


Mr. Stephanopoulos: I assume she was in discussions with the White House counsel, but it is her decision.
Q: Can you tell us whether the White House counsel may have suggested the idea?

Mr. Stephanopoulos: I don't know if he specifically suggested it, but I am certain that he was consulted.

Q: Would it be fair then to say that after consultations with the White House she decided to do this?

Mr. Stephanopoulos: It would be fair to say that she consulted with the White House before making the announcement.

Q: And the White House approved.

Q: The decision or the announcement?

Mr. Stephanopoulos: The White House did not disagree.

Q: I want to thank you for your persistence--(Laughter).

Finally, keep an eye on the aftermath: Jay Stephens put his U.S. attorney job behind him and was soon hired by the Resolution Trust Corp., an independent regulatory agency, to investigate claims stemming from the collapse of Madison Guaranty Savings & Loan. For those who have filed away their memories of the Clintons' Arkansas years, Madison Guaranty was connected to the Rose Law Firm, Hillary Clinton's former employer, and the firm would be an area of interest for any investigator.

Then, in February 1994, according to the Dallas Morning News, the RTC got an irate conference call from Harold Ickes, the White House deputy chief of staff, and George Stephanopoulos, by then President Clinton's senior advisor, to protest the hiring. Amid reports that they tried to have Mr. Stephens fired--it would have been his second pink slip in less than a year--the White House issued a statement that Mr. Ickes and Mr. Stephanopoulos had "no recollection" of making such a request.

It's funny how so many Democrats can have so much amnesia.

Thank God Sampson Remembers Not to Remember

After reading this Dana Milbank story in the WaPo about Kyle Sampson's testimony yesterday, one thing has become clear: members of the Administration have remembered not to remember anything.

"I can't pretend to know or remember every fact that may be of relevance," he warned at the start -- and he wasn't kidding. He used the phrase "I don't remember" a memorable 122 times.

It may have been a tactical effort to limit his risk of perjury, but Sampson displayed the recall of a man who recently fell off a ladder.

"Since the 2004 election, did you speak with the president about replacing U.S. attorneys?" Leahy asked.

"I don't ever remember speaking to the president after the 2004 election," he said. (He later remembered that he had.) "Did you have further communications with the White House regarding the plan to regard and replace several U.S. attorneys?"

"I don't remember specifically."

"I wish you did remember," Leahy finally said. "I would hope that you would search your memory as we go along."

Sampson searched. He came up empty.

After Schumer elicited three consecutive I-don't-remembers, John Cornyn (R-Tex.) objected to the questioning style.

Leahy overruled him. "We're trying to find what in heaven's name he does remember," the chairman said.

Schumer persisted, eventually asking the witness a question about Rove's role. "I don't remember," Sampson said. "I don't remember anything like that. I don't think so. I don't remember. I don't remember."

Sampson is no fool. Remembering anything will set him up to be Scooter Libby'd. This witch hunt will deserve every "I don't remember" that it gets from its witnesses. Worse than the stupidity of the Iran-Contra scandal, I am hopeful that watching Patrick Leahy try to bully witnesses will turn Americans' stomachs enough to turn out this disgusting bunch in 2008.

Ted *Hic* Kennedy's Faux Outrage at Attorney Firings

Adding to the opportunistic outrage of the Democrats over Attorneygate, Ted *Hic* Kennedy fumed that the firing of eight (OMG! 8!) attorneys was keyed to aid Republicans in the 2008 presidential election.

I guess Kennedy would know about falsifying elections, given the Democratic Party's history of stuffing the ballot boxes with votes from the cemetery district.

As Ann Coulter pointed out today in this column,

The Bush administration is embroiled in the most ridiculous non-scandal scandal in human history -- set off when the administration stupidly apologized for firing its own employees.

U.S. attorneys are political appointees who serve at the pleasure of the president. The president may fire them for any reason at all. That includes not implementing the president's policy about criminal prosecutions. It also includes being in the way of someone else whom the president wants to appoint for patronage reasons.

Of course, Democrats don't care that Jimmy Carter fired a U.S. attorney for investigating Democratic officials in Philadelphia, or that Bill Clinton fired 93 attorneys in 1993, and up to 30 other prosecutors during his presidency.

After all, it's only a scandal if it is a Republican president, right?

Welcome to Investigations Post-Libby

As Just One Minute (among others, including Rush Limbaugh) has pointed out, Senator Patrick Leahy is reaping what Patrick Fitzgerald sowed with the Libby prosecution.

Now, Congress is left with uncooperative witnesses who are unwilling to step into the perjury trap. From the Washington Post:

(Monica Goodling's) attorney, John Dowd, said the Senate inquiry amounts to a perjury trap for his client. "One need look no further than the recent circumstances and proceedings involving Lewis Libby," Dowd said.

I expect to see quite a few more people invoking their Fifth Amendment rights. When people are prosecuted for not remembering things right (or for not remembering things the way other witnesses did) and end up in jail, you aren't going to have people testifying voluntarily.

Eric at Is That Legal? explains that the Fifth Amendment protects the innocent as well as the guilty.

The Fifth Amendment privilege protects not just the guilty, but also the innocent, who fear that even their entirely truthful responses might provide the government with incriminating evidence from their own mouths. (Ohio v. Reiner, 532 U.S. 17 (2001) (dictum).) "The privilege serves to protect the innocent who otherwise might be ensnared by ambiguous circumstances." (Slochower v. Bd. of Higher Ed. of the City of New York, 350 U.S. 551, 557-58 (1956).)

A careful defense lawyer would be especially justified in advising his or her client to consider taking the Fifth in a highly charged political environment such as the Senate Judiciary Committee's investigation into the firings of U.S. Attorneys and the alleged minimization (dare we say "cover-up?") of the role of the Attorney General and the White House in those firings. It is important to remember that "a witness innocent of wrongdoing may well refuse to answer a question not because he fears conviction, but because he fears unfounded prosecution, a risk which every one runs at all times, theoretically at least." (Lewis Mayers, Shall We Amend the Fifth Amendment? 4 (New York: Harper & Brothers, 1959).)

The Akin Gump attorney probably did not need to broadcast his attack on the fairness of the atmosphere in the Judiciary Committee as he did; that does indeed smack of politics. But that doesn't mean that the advice he has given his client is bad. It is not. It is of course possible that the invocation of the Fifth is in bad faith, and that neither Ms. Goodling nor her attorney has any basis at all to fear her eventual prosecution, either for perjury, for making false statements, for obstruction of justice, or some other crime. But that strikes me as quite unlikely.

Whether Goodling has something to hide or not, in the highly charged political atmosphere of today, it's a smart thing not to give up anything.

The Gonzalez Problem

Captain Ed has a nice post on the U.S. Attorneygate and the document dump of e-mails. The leftosphere is making quite a bit of this (with some reason), but as Captain Ed points out, there's still nothing illegal about what was done, and the enemies of the President can't gather forces around any particular criminal charge.

Captain Ed uses this William F. Buckley column as a jumping off point. Buckley points out two truths: (a) that the President does have the plenary power to fire the attorneys and (b) Congress has the authority to investigate actions by the executive branch. Buckley's point is that the former cannot (and should not) swallow the latter.

It is a good point to make. Congress has always wielded its authority to investigate the executive branch, sometimes in better faith than at other times. Yet regardless of the partisan squabbling that such investigations have incurred, the value of Congress in examining the actions of the executive branch is enormous, and can be one of the few checks on executive power.

Captain Ed then goes into the document dump of e-mails and what it all means.

All of this still doesn't make the case that any of the firings were illegal. So far, no one has offered any proof of evil intent. That's what makes Gonzales' handling of this issue so poor. Even if Gonzales didn't intend to deceive -- that is to say that he honestly didn't recall sitting in on that meeting -- wouldn't a competent CEO (as he described himself) do some research before making categorical statements? Every time a Justice official has offered a version of the firings, it has foundered on the shoals of Justice's own documentation, which one would assume these professionals would have checked before creating their explanations.

And who would accept the competence of the AG if Gonzales really had no idea how his own department drew up a list of federal prosecutors for termination? What Cabinet officer would have so little interest in how his underling fired presidential appointees?

That's why I wrote earlier that Gonzales and others who have presented misleading versions of the project are either incompetent or deceptive. We should not accept either in the office of the highest-ranking law enforcement officer of the United States, regardless of whether he is a Republican or Democrat. America existed before the Bush administration, and it will exist after it, and we had better insist on a level of competence and/or honesty that exceeds what we're getting at the moment -- or else we will live to regret it in later adminstrations.

I am one of those on the right that has insisted Gonzalez not resign because it would be just the latest scalp for the Democrats (Republicans always resign; Democrats just accuse their accusers of partisanship). Yet looking at the e-mails, one can conclude either that Gonzalez was utterly clueless about the actions within the DOJ or that he has repeatedly lied about his involvement in this situation. Either way, Gonzalez has become a real liability for the President and should go.

It's All About Getting Karl Rove

John Dean--liberals' favorite "Republican"--has this interesting piece on the U.S. Attorney flap. The bottom line:

This time, it is my belief that Bush -- unlike Reagan before him -- will not blink. He will not let Fielding strike a deal, as Fielding did for Reagan. Rather, Bush feels that he has his manhood on the line. He knows what his conservative constituency wants: a strong president who protects his prerogatives. He believes in the unitary executive theory of protecting those prerogatives, and of strengthening the presidency by defying Congress.

In short, all those who have wanted to see Karl Rove in jail may get their wish, for he will not cave in, either -- and may well be prosecuted for contempt, as Gorsuch was not. Bush's greatest problem here, however, is Harriett Miers. It is dubious he can exert any privilege over a former White House Counsel; I doubt she is ready to go to prison for him; and all who know her say if she is under oath, she will not lie. That could be a problem.

But Hugh Hewitt had a guest yesterday who isn't nearly as sure of Congress's power as Dean is.

I was joined by Duke University Law School Professor Erwin Chemerinsky and my colleague from Chapman University Law School John Eastman for a long conversation on the looming showdown between the president and Congress over executive privilege. All three of us agree that the issue is of first impression and that the courts may invoke the political question doctrine. Professor Eastman and I doubt that the courts will be eager to unbalance the power settings between the branches by backing up the Congress' subpoenas in such an obviously political case which is completely unconnected to a criminal investigation. Professor Chemerinsky argues that there are allegations of conduct that might conceivably rise to the level of obstruction of justice, but this is wholesale conjecture.

The biggest problem with this Congressional aggression is that there is no criminal investigation to bolster their "need" for Rove and Miers to testify under oath. It's one thing when there's a criminal case. It's another when it is fairly clear Congress is on a fishing expedition to cite Rove for perjury.

Pat Leahy Then and Now

Patterico has an excellent post on Senator Pat Leahy's opinions about executive privilege back in 1999 and today.

It seems Leahy's much less accommodating when a Republican is in the White House than when Bill Clinton was president. I'm sure it has nothing to do with politics. Riiiight.