Archive for the ‘National Politics’ category

The President’s Contempt For The Constitution

July 12, 2007

By now you’ve all heard the White House’s latest “F – You” to Congress. Claiming executive privilege, W won’t let any of his underlings testify about the US Attorney firings. Two things ought to really disturb all of us about this situation, regardless of whatever label we claim for ourselves.

First, this video

Sorry, folks, there is no defense for a high ranking executive official claiming she swore an oath to the president.

Second, about this executive privilege thing. The claim is not just that W himself is immune from testifying, nor only that W and current White House officials are immune, but that those two and even former officials – i.e. Harriet Miers – are immune.

Now consider this statement from W in a 2000 presidential debate.

I’ll put competent judges on the bench, people who will strictly interpret the Constitution and will not use the bench to write social policy. I believe that the judges ought not to take the place of the legislative branch of government, that they’re appointed for life and that they ought to look at the Constitution as sacred. I don’t believe in liberal, activist judges. I believe in strict constructionists. And those are the kind of judges I will appoint.

O.k., now find “executive privilege” in the Constitution. Of course, you won’t find anything about privileges for the president, nor anything about his underlings, and certainly nothing about former underlings. It ain’t in there. If it exists, it’s as one of those penumbra things.

I have no problem with penumbras. I do have a problem with W’s hypocrisy. In his mind, when the issue is individual rights for folks like you and me, we have to read the constitution strictly. (We can’t let people have too much freedom, that’s why the terrists hate us, you know.) But when the issue is power for the executive branch, well, then, Earl Warren’s methods of interpretation would be a great place to start.

That, to me, is the absolute worst possible way to interpret the constitution. I can see reading the whole thing broadly, or reading the Bill of Rights broadly but the rest of it narrowly, but to read it so as to maximize the power of one branch of government while minimizing individual rights? I think that would be anathema to all the founding fathers.

In other words, once again, we’ve got one law for all of us, and another for W and his buddies.


The Scoot Man

July 3, 2007

O.K., let me preface this by saying I’ve not followed the saga very closely. (Mostly because I knew it would end in a manner something like it has). Nevertheless . . .

One, W’s rationale for the commutation is a load of b.s. Here’s his statement:

Mr. Libby was sentenced to 30 months of prison, two years of probation and a $250,000 fine. In making the sentencing decision, the district court rejected the advice of the probation office, which recommended a lesser sentence and the consideration of factors that could have led to a sentence of home confinement or probation.

I respect the jury’s verdict. But I have concluded that the prison sentence given to Mr. Libby is excessive. Therefore, I am commuting the portion of Mr. Libby’s sentence that required him to spend 30 months in prison.

My decision to commute his prison sentence leaves in place a harsh punishment for Mr. Libby. The reputation he gained through his years of public service and professional work in the legal community is forever damaged. His wife and young children have also suffered immensely. He will remain on probation. The significant fines imposed by the judge will remain in effect. The consequences of his felony conviction on his former life as a lawyer, public servant and private citizen will be long-lasting.

The Constitution gives the president the power of clemency to be used when he deems it to be warranted. It is my judgment that a commutation of the prison term in Mr. Libby’s case is an appropriate exercise of this power.

This is a pretext. When it comes to clemency, W is the stingiest president of the last hundred years. I’m sure he’s denied hundreds of cases with much more compelling facts than Scooter’s. And in Scooter’s case W did not even follow his own procedures for clemency requests. Normally he ignores them for years – until long after the appeals are finished – then gets the opinions of attorneys on the appropriatness of clemency before perfunctorily denying the requests. Here, though, he unilatterally commuted the sentence prior to even the beginning of the appeal. In other words, it’s not like W is a guy in the habit of sua sponte granting clemency requests prior to the end of the appeals process. The gift he just gave to Scooter is an aberration in procedure and results. Here’s what Orin Kerr had to say about it:

I find Bush’s action very troubling because of the obvious special treatment Libby received. President Bush has set a remarkable record in the last 6+ years for essentially never exercising his powers to commute sentences or pardon those in jail. His handful of pardons have been almost all symbolic gestures involving cases decades old, sometimes for people who are long dead. Come to think of it, I don’t know if Bush has ever actually used his powers to get one single person out of jail even one day early. If there are such cases, they are certainly few and far between. So Libby’s treatment was very special indeed.

So why the special treatment for Scooter?

Well, it isn’t that he thinks Scooter is innocent. In the statement, W said “I respect the jury’s verdict.” In other words, he admits that Scoot-man did obstruct justice and committ perjury.

And it can’t be that he thinks perjury or obstrucion of justice are less than serious crimes, as DOJ prosecutes them every day.

Nor could the problem be that the sentence was somehow unreasonable or disproportionate to the crime, as the administration recently argued in favor of a similar sentence on nearly identical facts.

Could it be that the whole thing was a politically motivated witch hunt? Well, as someone much smarter than me explains, if that’s what W thinks, he’s pretty much insane:

As I understand it, Bush political appointee James Comey named Bush political appointee and career prosecutor Patrick Fitzgerald to investigate the Plame leak. Bush political appointee and career prosecutor Fitzgerald filed an indictment and went to trial before Bush political appointee Reggie Walton. A jury convicted Libby, and Bush political appointee Walton sentenced him. At sentencing, Bush political appointee Judge Walton described the evidence against Libby as “overwhelming” and concluded that a 30-month sentence was appropriate. And yet the claim, as I understand it, is that the Libby prosecution was the work of political enemies who were just trying to hurt the Bush Administration.

I find this claim bizarre. I’m open to arguments that parts of the case against Libby were unfair. But for the case to have been purely political, doesn’t that require the involvement of someone who was not a Bush political appointee? Who are the political opponents who brought the case? Is the idea that Fitzgerald is secretly a Democratic party operative? That Judge Walton is a double agent? Or is the idea that Fitzgerald and Walton were hypnotized by “the Mainstream Media” like Raymond Shaw in the Manchurian Candidate? Seriously, I don’t get it.

If the decision was based on any of those reasons, I’d be fine with it. I was a criminal defense attorney, after all. No one would be happier than me if this was actually a signal that W was about to begin making real use of his clemency power. There’s no shortage of folks serving unjust sentences.

Unfortunately, W’s actions offer little hope to Genarlow Wilson and others who are truly suffering from draconian sentences, because it appears that the reason for the commutation was pure cronyism and self interest. That is, this was the reward W gave to Scooter for keeping his mouth shut, and at the same time – by removing the coercive effect of prison – it ensures Scooter will never reveal the truth. So what this means is that if you do the crime, you’ll do the time, unless you’re a friend of the president. If you’re just a poor black kid from Georgia, well, you’re shit out of luck.

Second point, listening to all the party drones on T.V. discuss this issue has once again left me shaking my head in amazement at how anyone could ever become an active supporter of one of the major parties. The reaction from both parties was as predictable as it was hypocritical. One side goes on and on about how serious these crimes were and how the penalty was appropriate; the other acts like perjury is a technicality and that the commutation is a just act. I’m not even going to bother taking each quote and googling the speaker’s name and “Clinton impeachment.” We all know exactly what I’d find.

Really, folks, party and personal loyalties should never be absolute. If you are one of the people who is defending W here, well, your party loyalties have trumped your ability to think indendantly and reasonable. I’m not saying the Dems are independant and rational, though. Just that this time their blind loyalty happens to coincide with reason. Both parties are blind hogs, just the Dems happened to find the acorn this time.

Finally, Sentencing Law and Policy is the place to be for news and commentary on the commutation.

Fightin’ Words

May 25, 2007

Today’s conservatives can argue for immigration restrictions if they so choose. But they should not claim the mantle of Reagan in doing so.”

O.K., So No-One’s Perfect

May 24, 2007

Just after lionizing Artur Davis, I read this:

Do they [four of Alabama’s Republican congressional representatives] think its OK to charge “unconscionable” prices for gas?  We have all seen it happen in a crisis of some sort.  It happened after Katrina, even up to north Alabama.  Gas prices went through the roof overnight.

The Federal Price Gouging Protection Act passed the House of Representatives on a vote of 284 to 141.  The bill bans sellers from charging prices that are “unconscionably excessive,” or take “unfair advantage” of consumers. 

The bill would give the FTC “the explicit authority to investigate and punish those who artificially inflate the price of energy,” and require offenders to pay triple damages or up to $3 million for charging “unconscionable prices.”Some Republicans said the bill sets vague definitions of what price would qualify as “unconscionable” and would be tough to enforce. . . .

Democrats Bud Cramer and Artur Davis voted for the bill as did Republican Robert Aderholt.

Sigh. No doubt this law is extremely vague, and therefore invites arbitrary enforcement. But in addition, as this article explained when Alabama AG Troy King declared war on price gougers after Katrina (the results being one of his greatest hits; his ignorance extends to economics, too), price gouging laws are counter-productive and even immoral.

They do make for good stump speeches, though.

Giuliani v. Paul III

May 22, 2007

Actually, it’s more Ron Paul v. the GOP, but be sure to read this exchange between Doug of Hey Jenny Slater and Eric Dondero, who was once a senior aid to Paul but who now blogs at RedState. Good stuff, begun with this post:

Ever since the galvanizing May 15 Republican debate, in which Rudy Giuliani falsely accused Paul of saying the United States “invited” the 9/11 attacks, Andrew Sullivan has been tallying up the legions of mainstream “conservatives” campaigning to excommunicate Paul from the GOP. Hugh Hewitt and Bill Bennett both want Paul bounced from future GOP debates, as does the chair of the Michigan GOP; Hewitt’s co-blogger, Dean Barnett, dismisses Paul as “cuckoo for Cocoa Puffs”; one of Paul’s own former senior aides, current RedState blogger Eric Dondero, is threatening to challenge Paul for his House seat next year. Over at National Review, Larry Kudlow obediently chimed in with a judgment of Paul as a member of the “I hate America” camp. And all because Paul suggested that unchecked interventionism in the Middle East was a foreign policy that encouraged greater animosity toward the United States.

Kind of tells you where the “mainstream” Republican Party is at these days, doesn’t it? You have to be in favor of continued intervention in the Middle East, an indefinite military commitment in Iraq, and oh yeah, torture of detainees to pass muster as an official GOP candidate these days. If you don’t, it doesn’t matter how many taxes you want to cut or government programs you want to scale back, you’re still a heretic.

Yesterday I quipped about why I’m not a progressive. The Republican reaction to Paul – typified by Eric Dondero – is a great illustration of why I am not a Republican.

BTW, my two posts on Paul and Giuliani are here, and here.

Why I’m Not A Progressive

May 21, 2007

On Left in Alabama today:

All in all, I agree with Leonard Pitts about the Alabama sex toys lawsuit, but Ronald Reagan was flat wrong about government.  The Great Communicator said:

Government is not the solution to the problem. Government is the problem.

The government has no business in our bedrooms or our doctors offices and banning the sale of sex toys in this state is just plain silly, but there is a need for government.  Competent government.

My dictionary defines government as “the act or manner of controlling or regulating a nation, organization, or people.”  The people in Iraq have essentially no government and how many of us envy them?  What happened (and is still happening) to New Orleans after Katrina hit was a colossal failure of government.  There would be no public roads, public schools, food or water safety standards or law enforcement without government.

In America today, government is not the problem, incompetent government is the problem.  Electing new leaders is the solution.

No doubt incompetent government is a problem. But electing new leaders won’t solve anything. New leaders will just specialize in different areas of incompetence. Unless, of course, the new leaders want to strictly limit what the government can do. Less discretion for the leaders means less harm from the incompetence.

Giuliani v. Paul II

May 18, 2007

Andrew Sullivan asks a good question:

Has anyone else noticed the bizarre spectacle of many Bush-backing blogs demonizing Ron Paul for not saying that we deserved 9/11, at the same time eulogizing a man who absolutely and explicitly said that we did deserve 9/11: Jerry Falwell.

Of course, without any cites to the offending blogs, that’s all it is: A good question. What it led me to do, though, was to google Falwell and Giuliani. What do you suppose I found, hmm?

This  in the same debate in which Giuiliani attacked Paul because Paul suggested our pre-9/11 middle east foreign policy contributed to 9/11:

The candidates were asked by moderator Brit Hume, of Fox News, not to spend time commenting on the death of Falwell, news of which arrived here via news alerts on cellphones and BlackBerrys and jolted the news media and politicians as they prepared for the debate. The 90-minute event was co-sponsored by Fox News and the South Carolina Republican Party.

“It was just terrible,” Brownback said of Falwell’s death during a tour of the debate hall on of the University of South Carolina campus. Moments later, Giuliani praised Falwell as a man who was “not afraid to speak his mind”and expressed sympathy for Falwell’s family. Huckabee called Falwell “a great man and a great influence for America and for Christ.”

In case anyone forgot, here’s what Falwell had to say about 9/11:

JERRY FALWELL: The ACLU’s got to take a lot of blame for this.


JERRY FALWELL: And, I know that I’ll hear from them for this. But, throwing God out successfully with the help of the federal court system, throwing God out of the public square, out of the schools. The abortionists have got to bear some burden for this because God will not be mocked. And when we destroy 40 million little innocent babies, we make God mad. I really believe that the pagans, and the abortionists, and the feminists, and the gays and the lesbians who are actively trying to make that an alternative lifestyle, the ACLU, People For the American Way, all of them who have tried to secularize America. I point the finger in their face and say ‘you helped this happen’.

PAT ROBERTSON: Well, I totally concur, and the problem is we have adopted that agenda at the highest levels of our government. And so we’re responsible as a free society for what the top people do. And, the top people, of course, is the court system.


That was not a slip of the tongue; Falwell maintained that position until the day he died. He was, as Giuliani said, “speaking his mind.” And in his mind, the cause of 9/11 is you, me, and every other freedom loving American. 

Yet Rudy – who just resorted to mischaracterizations and emotional pandering to shout down Paul’s critique of our middle east policies – can do nothing but praise Falwell.