Saturday, March 24, 2007

Candidate Mike Gravel

Over the years, I've always been fascinated by obscure and outsider presidential contenders like Lyndon LaRouche, John Anderson, Ross Perot, Ralph Nader, Pat Buchanan, Al Sharpton, Gus Hall, etc. Fundamentally, I just dig the idea that literally anybody meeting basic eligibility requirements can run for the highest office in our land. That's America at its best, even if it must take shape in such a dubious group as listed above.

Anyway, the current top contender to merit addition to this list is former Senator Mike Gravel (D-AK, of all places) who is actually seeking the Democratic nomination for president. There are so many facets of this guy's campaign that interest me. Firtsly, he's got no right away you know the guy is likely to actually be interesting! Secondly, the dude's nearly 77 years old and has been out of politics since 1980! Winning the presidency in 2008 sure would be a good way to break a 30 year slump. In fact, how about this winning quote on his post-Senate life:

"I had lost my career. I lost my marriage. I was in the doldrums for ten years after my defeat."

Sounds about right to score that sympathy vote to me. Perhaps he is the only man who can bring peace to the Middle East and maybe a World Series title to the Chicago Cubs too? However, with all due respect, Mike Gravel's actually had a very interesting life. His Senate career saw him introduce noteworthy legislation concerning matters such as the building of the Alaskan Pipeline, ending the military draft, and normalizing relations with China. Who woulda thunk? Furthermore, Gravel was active in the Senate investigation into Watergate and he even mounted an old-fashioned/inside-the-convention-type campaign for vice-president in 1972! Nice.

After 12 years in the Senate, Gravel lost the Democratic primary to keep his seat in 1980. Then, with what must have been a fine example of party loyalty and losing with class, he attributed his defeat to Jerry Falwell of all people! Yes, I'm sure Rev. Falwell of the Deep South has enjoyed considerable influence on the politcs of the Democratic party of Alaska over the years indeed!

After a miraculous recovery from his decade-long doldrums, Gravel became a land developer in Alaska and even set up a "foundation" to advocate the use voter initiatives. Support for the latter cause likely brought him some allies he didn't want and the Senator has had to publically distance himself from ties to Holocaust deniers of all things!

You see what I mean about Gravel's rightful place on the list? So move over Eugene V. Debs. Bull Moosers and Libertarians -- we're gonna need your support here. Let's give the old guy a hand, a cane, and a Howard Dean scream as well. Yes, you too can be president, Mike Gravel!

Next time we'll look at another loser candidate who wants your vote, Chicago radio talk show host Republican John Cox.

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Letter Time

Due to my "liberal" stance on the Iraq War, I've been told that I'm no longer a Republican. Fair enough. However, by that same measure, the very conservative North Carolina Republican Congressman Walter Jones (lifetime rating of 93% from the American Conservative Union) must sadly be shown the door as well. Jones was one of only two congressional Republicans to vote in favor of the Friday's House spending bill containing a provision for withdrawal of the troops from Iraq. Of course, I couldn't resist showing my appreciation. Welcome to our lonely club, Walt!

Dear Representative Jones,

Thank you for your gutsy vote today in favor of the House spending bill containing a deadline for troop withdrawl from Iraq. Like you, I'm a conservative who originally supported intervention in Iraq but has since come to see it as a grave mistake. The weakening of our influence, massive spending, inaccurate intelligence, wartime mismanagement and, most especially, the mounting losses of American lives are all tragedies.

I applaud you for standing up to do something about it. I continue to be saddened how our Republican Party has ignored the lessons of the 2006 elections. I fear Iraq will keep us out of power long after President Bush has left office. And the real shame is that other winning causes that we support such as fairer taxes, reduced government spending, a strong military, and Christian values will suffer.

So thanks again for your leadership. Though I come from Florida, you have certainly become my favorite representative of the moment. I shall look forward to returning to the beautiful Outer Banks which I first visited a few years ago and I now see is a part of your district! God bless.


Jeff Briscoe

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Wednesday, March 21, 2007

Enforcing Congressional Subpoenas and Contempt of Congress

There seems to be a lot of confusion about this around the blogosphere today. Here's my take:

For what it's worth there are three ways that Congress can enforce its subpoenas. I'll start with the two statutory methods.

The first, and arguably weakest, is via "civil contempt," which only applies to the Senate, and specifically excludes use against Executive Branch officials. See 2 USC 288d (2000). This may, however, be used against Ms. Miers as she is no longer an executive branch employee, but a private citizen. There is precedent for this as back during Whitewater, the Senate used civil contempt to compel the disclosure of notes taken during a White House meeting involving then-counsel William Kennedy.

The second statutory method is the"contempt of Congress" statute, 2 USC 192, 194, which authorizes the US Attorney for DC to submit to a grand jury for indictment any person found by the Congress to be in contempt. This statute was passed in 1857, but has only been used once against an executive branch official. That was in 1982-83 against EPA Administrator Anne Burford. In that case, the DOJ argued that since prosecution was solely within the discretion of the executive branch the statue is unconstitutional and they didn't have to submit anything to the grand jury. They sued to obtain an injunction, however, the DC district court dismissed the case and it was never appealed. See United States v. House of Representatives, 556 F.Supp. 150 (D.D.C. 1983). This issue has never been settled. Ultimately in the Burford scenario, Fred Fielding, then WH Counsel for Reagan negotiated a settlement that involved the disclosure of ALL of the documents that Congress wanted from EPA, despite the fact that Pres. Reagan had claimed "executive privilege."

Finally, there is a procedure known as "inherent contempt," which involves an arrest by the Sargent-At-Arms (or the Capitol Police I suppose), trial at the bar of either the House or Senate, and a full vote of the offended body to convict. Either house of Congress may use the procedure independent of the other's consent, and both have done so previously. The history of inherent contempt dates back to 1793, and its use has been affirmed by the Supreme Court several times. See e.g., Anderson v. Dunn, 19 U.S. (6 Wheat.) 204 (1821); see also McGrain v. Daugherty, 273 U.S. 135 (1927). The procedure hasn't been used since 1935, however, as Congress has preferred to use 2 USC 192, 194 instead.

In the end, enforcement of subpoenas is a matter of political will. If Congress has it, they should prevail, if they don't some other accommodation will be reached.

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A Few Things to Keep in Mind About “Fire-gate” or “Dismissal-gate”

Apropos of my last posting, the President has launched a full throated defense of his people and has dispatched White House Counsel Fred Fielding to negotiate with the House and Senate over when, how, and even if, the aides to the President will testify or talk at all to Congress about their roles in the firing of 8 United States Attorneys. With my previous post on the legalities in mind, there are a lot of things that are going to be said in the next few days, and I want to try to set some of the rhetoric aside and deal with the precedent and history behind these types of “constitutional” controversies.

The first thing to do, if one really wants to understand what’s going on here, is put the partisan bickering aside. Yes, this is all political, but, in my opinion, it’s not partisan political, it’s institutional political – at least when we are talking about separation of powers related issues – there’s a difference. So, do me a favor when reading my post, forget that this is a GOP Bush White House v. a Democratic controlled Congress, and, if it helps pretend the shoe is on the other foot (which it was during Whitewater when similar issues were raised). This is about the powers of the President versus the power of Congress. Politics abound, but in a different way.

Second, let’s look to the text of the Constitution itself. What does it say about this particular “constitutional conflict?” Answer: ABSOLUTLY NOTHING. Essentially, the arguments break down like this: For the President, the issue is the sanctity of the White House, and a President’s ability to receive unfettered advice from his most senior and trusted advisors. The fear that everything uttered in the Oval Office being made the subject of a public Congressional hearing is a serious threat to how the Executive Branch functions. Remember, however, that the Constitution doesn’t actually textually provide for an “executive privilege,” but a qualified privilege does exist via the courts See, e.g., United States v. Nixon, 418 U.S. 683 (1974); In re Sealed Case, 121 F.3d 729 (D.C. Cir. 1997); Judicial Watch, Inc. v. Department of Justice, 365 F.3d 1108 (D.C. Cir. 2004). For Congress, the issue is its ability to garner and receive the information that it needs from the rest of the government to properly legislate and exercise its significant constitutional responsibilities, which are textually committed to it by Article I, sec.8. To regulate any area, and/or to exercise its “power of the purse,” Congress needs information, and must be able to receive what it needs from whatever the source. Unlike the President and the Courts, Congress does have a “legislative privilege” Constitutionally committed to it by the text. It’s called the Speech or Debate Clause, Art. 1, sec. 6, cl. 1, and it has been interpreted by the Supreme Court and lower federal courts as permitting the Congress to conduct wide-ranging inquires and investigations, as well as issue subpoenas and other compulsory process without interference from the other branches of government. See, e.g., McGrain v. Daugherty, 273 U.S. 135, 177-78 (1927); Watkins v. United States, 354 U.S. 178 (1957); Eastland v. United States Servicemen’s Fund, 421 U.S. 491 (1975).

Given there are two equally strong, arguably constitutionally based privileges at stake here, the natural inclination of people is going to be to look to the Courts to resolve the conflict. This would be wrong. As I (and Paul) have suggested numerous times, the Court’s are not the final arbiter of constitutional interpretation. More to the point, the Courts have been loathe to interfere in congressional executive disputes of this type. There are actually two very good, relatively recent examples of the courts doing precisely this. The first occurred in the late 1970s when the Congress was investigating the first executive use of “warrantless wiretaps” that would eventually lead to the Foreign Intelligence Surveillance Act that is the subject of many controversies today. Then, as now, the Congress wanted information from the FBI and the telephone companies, specifically AT&T, about what information the FBI was seeking and why. Eventually AT&T was subpoenaed, and the Justice Department sought an injunction in federal court preventing their compliance. The DC Circuit never actually decided any the constitutional issues presented on their merits. Rather, they elected to require the parties to negotiate and ultimately placed the district court in an arbiters like position to settle minor disputes with respect to specific documents. See United States v. AT&T, 551 F.2d 384, 385 (D.C. Cir. 1976) [AT&T I]; United States v. AT&T, 567 F.2d 121, 124-25 (D.C. Cir. 1977) [AT&T II]. More recently, in 1983, when the Congress issued an “contempt of Congress citation,” pursuant to 2 USC 192, against EPA Administrator Anne Burford for failure to comply with a subpoena for open case files related to enforcement of the “Superfund” laws. The President claimed executive privilege over the documents, and the Justice Department attempted to get a court to enjoin and dismiss the congressional contempt. The district court immediately dismissed the suit, essentially on political question grounds. United States v. House of Representatives, 556 F.Supp. 150 (D.D.C. 1983). A settlement to the dispute was ultimately reached with the President turning over all of the requested documents to the Congress. I could continue on about contempt, but needless to say the Courts don’t have to be involved there either. Congress has prosecuted people for contempt before, and the Supreme Court has upheld it, see Anderson v. Dunn, 19 U.S. 204 (1821), but has not done so since 1935, preferring instead to use the criminal statute noted above.

As I said, this is a political dispute, yes, but it is not a partisan one. Depending on your opinion about the institutional issues involved, there may be a reason to take one side or the other here. Bottom line is that this type of thing isn’t new by any stretch. I could cite plenty more examples, except that almost all of them favor Congress here. People don’t like secrets, especially after so much mishandling by the AG’s office. As I said before, the White House and the DOJ haven’t done anything illegal or unconstitutional here, but the perception is terrible and the Congress appears determined to find out what happened. Is there an element of show trial and witch hunting involved, yes, without a doubt. But there is a point to it as well. Congress has lost, mostly through acquiescence, many of its prerogatives in the last 6 years. Yes, 9/11 changed things and strengthened the President tremendously, but the Constitution hasn’t changed, and this issue isn’t about 9/11. Congress still retains a tremendous amount of power here, and if it chooses to exercise it here, history and precedent is definitely on its side. The politics, pure politics, will determine the outcome here. Look for lots of partisan wrangling and rhetoric from all sides. Long story short: Put on your muckraking shoes, it’s going to get messy.

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Saturday, March 17, 2007

The Press, Congress, Laws, and the Constitution (Part I): “Purgegate” The US Attorney Debacle

I have to apologize for my recent absence from posting. If you could see my desk at work you’d all understand. That said, there are a couple of issues I’ve been wanting to post about but haven’t found the time.

Before I delve into the details of my issues, first let me explain the theme and the title of the post. Paul over at the Cranky Conservative had an excellent post about the recent Washington Post editorial that, in a nutshell, suggests that the constitutionality of a law is not something that the Congress should be concerned with. Rather, according to the Post, that is something for the Courts to sort out; Congress should simply pass whatever it wants and let the rest be sorted out later. Wonderful. I concur with Paul; we now have a major American newspaper that is fundamentally misrepresenting to millions around the world how our government works. Terrific. The Post is perpetrating a myth, albeit a widely held myth, but that does not change anything. However, the errors about legal issues in reporting go far further than one editorial. In fact, they have recently been permeating reporting about all sorts of issues, be it the potential pardon of Scooter Libby, or the US Attorney debacle, which I will discuss below. Basically, we have developed a wide spread public belief that the Courts are the be all and end all when it comes to matters of law and the Constitution. Just like the public, by and large, harbors a mistaken belief that the President is the most powerful Constitutional actor. Both are horribly wrong, and lead to all sorts of errors both in the way we evaluate current events and shape the debate about what should be done. It is my opinion that while the “should the government do X” question is by far the most interesting and complex question our political discourse faces, it is impossible to answer if the general public doesn’t understand basic principles like how the government works, or what the various officials within the government (both elected and appointed) are empowered to do.

Let me start with the US Attorney’s issue. First, lets clear up a couple of things. One, the President can fire a US Attorney anytime for any reason. Period. Of this there should be no debate. The power to appoint inferior officers of the United States, which ALL US Attorneys are, is specifically vested by Article II to the President. The appointments are subject to advice and consent of the Senate, but the appointment power is exclusive to the President. It is also well settled, that the corollary power -- the power to remove an inferior officer of the United States -- is also exclusively the President’s. Now, there have been some debate as to whether Congress can, by establishing terms of office, and other so-called “for cause” removal protections by statute -- the statutes creating the FBI Director, Fed Chairman, and Administrator of Social Security are good examples -- limit the President’s ability to remove, but that doesn’t apply to US Attorneys who have no such statutory protection. All this is by way of saying that by asking the 7 US Attorneys to resign, the President/Attorney General did not do anything legally or constitutionally improper. The President could have fired any of them at any time for any reason, ranging from they got a bad haircut, to egad, even political reasons. So why then, you ask, has this been such a big deal?

Well, in part because the press has screwed it up, in part, because the AG’s office has screwed it up, and in part because Congress smells blood in the water. This thing isn’t about removal of 7 US Attorneys, although that makes an interesting story; it’s about how their replacements are appointed. This is the crux of the issue that has been sorely missed by almost everyone. To begin with, one has to understand the laws. There is a statute that governs the appointment of interim US Attorneys, it is found at 28 USC 546. Basically, what that statute said, up until last year, was that the AG could appoint an interim US Attorney for up to120 days or until the President’s appointment is confirmed by the Senate. If the position remains vacant past the 120 days, the statue required the District Court to appoint a temporary US Attorney until the Senate confirmed one. Not so hard to understand right? Well, Presidents have never really liked this statute, but they’ve lived with it (sort of) since its adoption in 1966. This Administration, however, convinced the Congress during re-authorization of the USA PATRIOT Act to change 546. The major change they got was the elimination of the court appointment. Now, under 546 the AG can appoint a temporary US Attorney indefinitely or until the Senate confirms a replacement. Fine, whatever, except, I’m willing to be that this is probably the first many of you are hearing about it. Why, because this stuff, the important, critical details, don’t get reported or talked about. Not as sexy as a bunch of lawyers who serve at the pleasure of the President getting fired for “political reasons.”

But wait, there’s more, and better too. You see section 546 is not the only way to appoint a temporary US Attorney, at least not according to this Administration. Long before this little hubbub, in 2003, they published a little read opinion that suggested that they could use the “Vacancies Reform Act of 1995” to fill vacant US Attorney positions, despite the express provision in Title 28. Now, this statute allows for the temporary appointment of officers of the United States for up to 210 days. Still better, the Administration suggested they could use the two statutes in tandem. In other words, they were using 546 to fill vacancies for say 100 days, then, realizing the Senate wasn’t going act before the expiration of the 120 days, they would use the Vacancies Act to leave that person in place for another 210 days, for a grand total of up to 330 days, or almost a year, all without Senate confirmation. Creative, right; sure, maybe, but a total end-run around the Senate and a total butchering of the statutes. This specific bit of mis-administration occurred after a fiasco involving the US Attorney for the District of South Dakota, a story that I’ve only seen recounted in one place, the National Law Journal. Basically what happened, according to the folks at the National Law Journal, was that when the South Dakota position became vacant, the AG appointed the temporary US Attorney under 546, but the Senate, as it is want to do, didn’t act before the 120 day time limit expired. So the AG went to the District Court, per 546, and asked that Mr. X be appointed temporarily, pending, of course, a confirmed US Attorney. (This, in fairness, was a common procedure. The AG would recommend a temporary appointment and usually would get the person they requested, but that isn't what the statute actually requires.) The Court didn’t like Mr. X and, instead, as it had the power to do under the statute, appointed Mr. Y, the former AG for South Dakota as the temporary US Attorney. Needless to say this didn’t make the AG happy, so they fired Mr. Y (because they could, the court had the power to appoint, but not to protect or remove), and went to, get this, the District Court for the District of NEBRASKA, to get Mr. X appointed as the temporary US Attorney for SOUTH DAKOTA. After that, the creative interpretation discussed above was born. Classic. Not reported anywhere, however, nor discussed at any of the hearings or press conferences that we’ve all seen and read about over the last few days. Why? I wish I knew, because I think regardless of what your political affiliation is this kind of stuff ought to bother one as a citizen.

Okay, you’re outraged, but still partisan, so you reply, like the White House and other pundits, that President Clinton fired all 93 US Attorneys in 1993 when he took office and no one in Congress blinked, how is this different? If I have to explain this then it’s hopeless, which I suppose why that red herring makes for good press fodder and rhetoric. Again Presidents can fire US Attorneys for ANY reason. Clinton cleaned house, not surprising after 12 years of GOP US Attorneys. But 1993 isn’t the relevant period to look at. Rather, 1997, after Clinton’s reelection in 1996, is the comparative period. Bush did the same thing in 2001 when he took office, as he should have after 8 years of Dem US Attorneys. But what Bush’s folks did that Clinton’s didn’t was that he allowed these people to be held over beyond his first 4 years in office. Then he asked them to resign, two years into his second term. Had he done this very same thing right after his reelection, as apparently was suggested, as Nixon did with his cabinet in 1972, there probably wouldn’t have been a big deal made at all. Terminating these positions mid-way through an Administration is different than a wholesale house cleaning at the start of a new Administration, especially after a change in parties. US Attorney positions are essentially patronage positions. High profile, important patronage positions, but all the same, they go to the Administration’s friends, not their enemies. All this obscures the issue, its not the firings that are the problem, though they look bad, it’s the reappointments that should bother the Congress, especially the Senate, who got snookered but good into relinquishing its advice and consent power over US Attorneys.

I’ll do part II, the Voting Rights Act for DC, later, maybe tomorrow.

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Thursday, March 15, 2007

Should I Stay or Should I Go?

Setting aside a discussion on the merits of the idea (because from what I've heard so far I personally think it's much ado about nothing), what are the chances Attorney General Alberto Gonzalez survives the latest scandal concerning the 8 fired US Attorneys? Most commentators I've encountered say Bush will not fire him, but there's a chance he would resign for the health of the presidency.

My gut tells me the Bush presidency is too weak for Gonzalez to tough it out successfully. I think Bush hinted at this himself when noting yesterday how he had to respond to questions about the issue at a press conference in Mexico alongside President Calderon when plenty of otherwise relevant and on-point topics were available for discussion in such a newsworthy setting.

We shall see. I would note the irony that the scandal's hottest link to the White House appears to be the already-infamous Harriet Miers!

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Thursday, March 08, 2007


Here's my second installment of this series looking at the frontrunners for their party's presidential nominations. Most of the names are the same but I've adjusted the odds a bit.

THE DEMS: "A Top Heavy Field -- No Pun Intended, Ms. Clinton"

Hillary Clinton: 3-1 (Much has changed in the past 6 weeks since I last posted. The Clintons are scrambling to deal with an effective challenge from the left by Obama. But they are old pros and it'd be a mistake to count them out. She's still the favorite, but also is her own worst enemy.)

Barack Obama: 6-1 (Running a very solid campaign so far. Stealing a good amount of traditional Democratic money away from Hillary, while clinging to the (mis)perception of being an outsider. I still think he ends up as the veep choice, but he's definitely got a shot.)

John Edwards: 10-1 (Getting drowned in the wake of the Clinton/Obama duel. But I think he remains in the mix. His best bet is to do plenty of old-fashioned grunt work by pounding the flesh and kissing babies. I'm not sure it'll work beyond Iowa and New Hampshire anymore, but since Clinton and Obama will be tied up in Washington for much of the year, it's his best chance.)

Al Gore: 25-1 (Of all things, the Oscars made him relevant again. But the momentum is slowly dying and it looks like Gore will stick to making movies and running up the electric bills!)

Bill Richardson: 100-1 (Not getting much press. And at this point it's hard for a sitting governor from New Mexico to do much decent campaigning in New Hampshire.)

Joe Biden: 250-1 (Only a big implosion at the top of the field and a bigger explosion in Iraq gives him a chance.)

Dennis Kucinich: 500-1 (Anyone know when the last time a sitting member of the House of Representatives was elected president? I don't but it makes a good trivia question, assuming it has even previosly happened. That said, this lefty won't be breaking the trend.)

Out: Tom Vilsack.

THE GOP: "Parity Is Not Necessarily A Good Thing"

John McCain: 4-1 (In terms of losing his status as media darling, Iraq is hurting him almost as much as it has Bush. But I still think the primogeniture theory will work for this former GOP star. The Straight-Talk Express of 2000 has derailed, but this time he'll have much of the party machinery and establishment behind him. That helps, even for an old campaign reformer!)

Rudy Giuliani: 5-1 (Barring any drastic changes, it looks like I was wrong about Rudy not running. He sure is acting like it and appears confident he can overcome many self-inflicted obstacles such as his social liberalism and family turmoil. Look for him to lead the pack for the near future. However, I think this campaign may peak too early a la Dean in 2004.)

Mitt Romney: 10-1 (Did well at the recent CPAC conference in that he delivered a good speech and packed the crowd with supporters. He'll have a tough time explaining how he ran to the left of Teddy Kennedy back in 1994 but his good personality does give him a fighting chance.)

Newt Gingrich: 20-1 (Still don't see him running. With 23 potential primaries on a new Super Tuesday in early February 2008, you can't get into the race as late as Fall 2007 which Newt has hinted at. He'll keep the possibility alive because the GOP field is weak and it helps sell books.)

Sam Brownback: 30-1 (Just not generating much momentum yet. I'd love to see him grab headlines by directly challenging new-frontrunner Giuliani on social issues. He's got the credibility with the base to do it; let's see if he has the backbone or the charisma.)

Mike Huckabee: 75-1 (Ditto above.)

Tom Tancredo: 100-1 (Dropped Gilmore from my top 7 since he's gotten no press. Tancredo has a loyal fanbase and will continue to stay relevant with his tough stance on illegal immigration.)

Out: George Pataki.

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