Patterico's Pontifications

4/30/2007

Any story that begins “Secret DOJ Policy” is not going to be good for AG

Filed under: Current Events,Government,Law,Politics,Public Policy — WLS @ 6:22 pm

[Posted By WLS]

For a while now I have been of the opinion that the US Attorneys firing was a pseudo-scandal to help MSNBC fill its airtime in the evenings. I’ve “defended” AG to the extent that I wasn’t particularly shocked or surprised that he wouldn’t have been too personally involved in the decision-making over hiring/firing US Attorneys, and that he didn’t feel the need as it was happening to educate himself as to the facts of their individual performances in office.

I’ve defended Sampson’s job status, while bashing Goodling — probably not quite critical enough of Sampson, and certainly not critical enough of Goodling.

I’ve also posited that I didn’t see AG leaving because he can stay as long as he willing to suffer the “slings and arrows” of his critics, and as long as the Pres. didn’t fire him. Since the reports are that the Pres. is unwilling to fire him on the basis that the Pres. doesn’t think he did anything wrong, and firing him would be giving into the Admin’s critics, I thought that AG would be in the position as long as he wanted to be.

But that all changed today with this article by Murray Waas of the National Journal. The article reflects two changes in the situation:

1. AG did an incredibly stupid thing in March 2006, and largely hid it from view, while clearly acting in concert with Harriett Miers — rather than acting as AG.

2. Senior members of the WH have now decided to play hardball with AG in an effort to push him out — and I think its with the Pres’ acquiescence.

This story says that in March 2006, AG signed a secret order that conferred all hiring and firing power over senior DOJ officials that were not subject to Senate Confirmation. That authority was conferred to Sampson, AG’s chief of staff, and the While House Liason, a position filled by Monica Goodling in April 2006 – one month after the order was signed.

This order would have applied to most of the career staffers above the level of the Trial Attorneys in DOJ. In general terms, here is how the Dept is staffed:

The Dep. Attorney General (DAG) sits above all the Assistant Attorney Generals. The DAG has his own staff, which is generally made up of the Chief of Staff, Dep. Chief of Staff, a few Assistant Dep. AG’s and a collection of “Special Counsels”who are generally assigned to be the DAG’s “eyes and ears” over the various components of DOJ that all report up to the DAG’s office.

The department has 6 different litigating components which are separate and distinct from the 94 US Attorneys spread throughout the country. Those 6 components are called Divisions: Criminal, National Security, Civil Rights, Tax, Civil, and Enviro & Nat.Res.

Each of those Divisions is headed by an Assistant Attorney General (AAG), and beneath the Assistant are a series of Deputies and Section Chiefs.

The DAG, the Assistant DAGs, and the AAGs are all Presidential Appointees subject to Senate Confirmation. But the next level down, the Dep. AAG’s, Section Chiefs, and other senior management officials — nearly all of whom are career employees — are not subject to Senate confirmation and thus would have been covered by this “Secret Order” given by AG which gave hiring/firing authority over those positions to Sampson and Goodling.

Combine that with the fact that AG gave them pretty much carte blanche to replace US Attorneys by simply rubber stamping their recommendations, and you have two very questionable staffers in a position to completely rework the all levels of management personnel at DOJ who were charged with carrying out policy.

DOJ policy decisions are generally made by the Pres. Appointees. But they are executed by the career staffers, DOJ Trial Attorneys, and Assistant United States Attorneys who do the actual litigation work.

Packing the top level of DOJ managers just below the policy makers with “loyalists” (and why else would the task be given to Sampson and Goodling? — certainly not because of their legal acumen) really puts a huge question mark over the exercise of prosecutorial discretion.

And, to do this in a secret order that is kept from the DAG — effectively granting the authority to hire and fire the DAG’s staff to two staffers of the AG’s office — is simply unexplainable other than to say that AG and Miers didn’t want McNulty to know that it would be Sampson and Goodling that were wielding the ax.

On the second point — the fact that this order and other surrounding documents were actually leaked by a “senior executive branch official” to the National Journal suggests that this is really the push to get AG to resign. I also think that one particular quote from the article suggests strongly that the Pres. knows and approves of this disclosure:

The senior administration official who had firsthand knowledge of the plan said that Gonzales and other Justice officials had a “clear obligation” to disclose the plan’s existence to the House and Senate Judiciary committees — but the official said that, as far as he knew, they had not done so….. The official added, “The president of the United States has said it was imperative for the attorney general, and the attorney general alone, to re-establish trust with the Congress to keep his job … and you have, even after the president has said that, the attorney general and his men stiffing Congress.”

AG didn’t take the opportunity to fall on his sword and quit simply because his conduct had impeded the mission of the Department. The Pres. supported him publicly, but I’m certain there were back channel messages urging him to quit.

Now he has gone up to Capitol Hill, with the Pres. signaling in advance very clearly that the onus was on AG to make his case. But this “secret order” never gets mentioned.

Now the calls for his resignation are sure to get louder – I join them for the first time – and I expect the silence of the WH in his defense to be deafening.

 

70 Responses to “Any story that begins “Secret DOJ Policy” is not going to be good for AG”

  1. So,what are you saying? That we don’t have a President?

    nk (db0112)

  2. [...] WLS, who knows a bit about how the DOJ operates, thinks White House support for AG Gonzales is evaporating. And WLS, until now a Gonzo supporter, thinks he ought to resign. digg_url = [...]

    Hot Air » Blog Archive » Bush Defends Wolfowitz (AG Gonzo UPDATE) (d4224a)

  3. ” I also think that one particular quote from the article suggests strongly that the Pres. knows and approves of this disclosure”

    It would also be quite fair to say that the Pres. knew of and approved the secret order to begin with.

    AF (d700ef)

  4. Stop it, AF. This is important. Is WLS saying that the President does not have the guts to fire AG and is letting the President’s own enemies kill him with a thousand cuts with the President’s approval?

    nk (db0112)

  5. Not the President’s enemies — this strikes me as a WH sponsored leak.

    McNulty went behind closed doors on Friday with the Senate Judiciary Committee. No one knows what he told them, but I think the fact that this article appears today, and that a “senior executive branch official” is quoted in very negative comments, suggests strongly that McNulty was personally revealing this info to Congress in advance of the article, and the leak is with WH approval — maybe even coming from the WH.

    This is the kind of thing that you send your Chief of Staff to do.

    Choosing the National Journal — pretty much a non-partisan publication devoted to legal issues — was meant to keep the hysteria down to some degree. Waas obtained some good even-handed comments from a Clinton DOJ official.

    WLS (077d0d)

  6. Still, it goe back to my first question. Do we have a President or a White House (rephrased)?

    nk (db0112)

  7. WLS:

    Maybe it’s because I’m not a lawyer, but honest to goodness, this seems like Hurricane Katrina in a thimble. Does anybody outside the cozy circle of U.S. Attorneys, DAGs, ADAGs, AAGs, lawbloggers, and J-Com perennials care about any of this?

    Do ordinary people give a rip?

    And will you, WLS, be the first to roll up his socks and actually analyze the process by which the Senate Judiciary Committee could possibly confirm “someone good” to the office of Attorney General, were Gonzales to leave?

    Or will Patterico? Or will Simon? Or will Beldar? Or will anybody, anywhere, at any time?

    That’s the real deafening silence I’m hearing: With a J-Com that includes 14 anti-war senators (10D + 4R) who will never, ever confirm any wartime consigliere, versus a mere five reliable conservatives — how do we end up with anybody but another Janet Reno or Ramsey Clark?

    Does anybody even care?

    Nobody has essayed an answer. It is enough simply to kick Alberto Gonzales, and to heck with what happens next.

    Dafydd

    Dafydd (445647)

  8. I just have this sinking feeling that the whole lot of you imagine that if you could just push Gonzales out the door, then within a couple of weeks, we’d have Samuel Alito or Robert Bork as AG.

    You are terribly mistaken; under the current make-up of the J-Com, we’re far more likely to have Ramsey Clark.

    Then you guys will wander off, saying “hey, we did the heavy lifting of getting rid of King Log; King Stork is your problem!”

    Dafydd

    Dafydd (445647)

  9. Couldn’t Bush wait till the summer recess, then boot Gonzales and appoint any AG he wanted (for a 1-year term)?

    DubiousD (4e17e3)

  10. Dafydd,

    I’ve been straddling the fence on this issue but this does matter. It’s obviously possible to politicize the DOJ and I’m sure we can find instances, perhaps several instances, where that happened in the Reno Justice Department and its predecessors. Nevertheless, I don’t think the core group of DOJ lawyers are overly politicized. (Think of it like a famous medical center with flamboyant high-profile doctors and a core group of support staff who make the whole thing work.)

    It sounds like AG’s minions were trying to gut the core group of politically-appointed lawyers. Maybe they had good reasons but, if nothing else, it’s not good business to gut middle management unless you have competent replacements to fill the void.

    DRJ (3e5f88)

  11. WLS,

    The link doesn’t work. I think you missed the first “n” in the NationalJournal URL.

    DRJ (3e5f88)

  12. WLS is shocked! shocked! to discover politicization at DoJ!

    What motivated the cover-up of the US Attorney replacements, perfectly lawful as they may have been, except the desire to hide the scuzzy reasons why most of these replacements appear to have taken place: out with US Attorneys who investigate Republican corruption, in with permanent-interim (neat trick!) US Attorneys who will investigate Democratic corruption on a timetable convenient for GOP electoral purposes, or who will investigate fabricated allegations of vote “fraud”?

    This is an Administration conducting organized (and probably unlawful) politicization of such formerly career-oriented branches (might I say, backwaters?) as the General Services Administration. No one up with the Gestalt of this worst-ever Administration can be surprised by politicization any more.

    Andrew J. Lazarus (cfea8b)

  13. DRJ or Patterico — can you fix the link in my post? For reasons beyond my technical expertise, I can’t seem to get an active link pasted into posts from this computer.

    wls (859dc4)

  14. Hey, Patterico, may I change the subject?

    Since you are my official (as yet unpaid) expert on matters legal and prosecutorial, I turn to you for enlightenment.

    A current film I shan’t name – in case you have plans to see it – makes the following assumption: if A shoots B in the head and B goes into a coma, there is a prosecution and acquittal for attempted murder, and then B dies, A can be prosecuted anew for murder.

    It makes the additional assumption that this is true even if B died as a result of a legal guardian pulling the plug on the ventilator with all paperwork in order.

    This strikes me as wrong for many reasons.

    1) The act of prosecuting for attempted murder constitutes a waiver of a prosecution for murder. The prosecutor can wait until the victim dies and file a murder charge, but once you limit the charge to the attempt, you’re done.

    (The opposite way is equally true. You cannot charge a person for murder and attempted murder at once. The attempt is subsumed into the broader charge. Conversely, citing the attempt waives the ability to link the original act to the long-term outcome.)

    2) There is double jeopardy. A charge of attempted murder creates a court proceeding whose finding of fact covers that attempt. To charge for murder where no other attempt was involved is asking the court to rejudge the same act.

    3) If a plug is pulled as part of a state-allowed decision of guardianship and death occurs as a result, that death cannot fairly be deemed the completion of the original murder attempt.

    Am I wrong? If you have a minute, please enlighten me.

    Thanks,

    Jay

    Jay D. Homnick (de76b4)

  15. Re a replacement, the Dems on the J.Com. have suggested a name that I think would get past any confirmation issues without a peep — former Dep. AG Larry Thompson. He was the first DAG under Ashcroft, was a senior DOJ official in the Reagan and Bush 41 Admin., including serving as US Attorney in Atlanta.

    He’s African-American and would be the first African-American to serve as AG.

    The only question is whether he would want the job for 18 months.

    WLS (859dc4)

  16. We’ll have to see how it all washes out (if there is any wash there), but getting hysterical over a Murray Waas article, absent corroborating material from additional sources, doesn’t seem a worthwhile endeavor to me.

    Mark H. (e67a8b)

  17. Mark H. — I heard on the radio a little while ago that the AP now has a story up, and they have the documents as well.

    Its possible that the documents were leaked by the J.Com. staff, after having likely received them from McNulty on Friday.

    But, if that were the case, I think they would have ended up in a more strident publication than the National Journal.

    Look for lots of MSM attention to this tomorrow following up on Waas’ article. I expect to see the order posted online as well tomorrow.

    WLS (859dc4)

  18. WLS – Why wouldn’t Waas have published the confidential letter alongside his article if he’s got it as he indicates? He is hardly a shrinking violet. Instead, we are treated to his descriptions of the document and the “intended” workings of the process.

    Time will tell I guess.

    daleyrocks (906622)

  19. Hmm. Anybody that was a player in the Plame investigation would possibly pass on info to Waas, so there’s Schumer and McNulty. The National Journal might not be strident, but Waas can be.
    Isn’t McNulty someone Schumer has said he would approve of for AG?

    MayBee (eb1824)

  20. The AP article talks about discretion over the hiring and firing of 135 political appointees excluding the USA’s. The quotes from the Dems in that article don’t say anything about the letter not being turned over as part of the investigation into the firing of the USA’s.

    daleyrocks (906622)

  21. This is how the AP paraphrases the order:

    the authority, with the approval of the attorney general, to take final action in matters pertaining to the appointment, employment, pay separation and general administration” of non-civil service employees of the Justice Department.

    Are people reading that to say Sampson and Goodling could decide who was fired?
    I read it to say that Gonzales had them take care of the HR end of hiring and firing decisions. IOW, the details after a decison had been made.
    In other words, as Gonzales said here:

    During a Senate hearing April 17, Gonzales repeatedly said he did not recall details of how those firings were carried out, making a point to emphasize that he delegated many of the details to his staff – notably Sampson and Goodling.

    MayBee (eb1824)

  22. Okay, I’ll repeat the question: does Bush have to authority to replace the AG with a recess appointment this summer?

    DubiousD (e93971)

  23. In several places I have worked managers “delegate” firings or layoffs to someone else. This is common practice. Is this really news?

    Vatar (085be7)

  24. But the next level down, the Dep. AAG’s, Section Chiefs, and other senior management officials — nearly all of whom are career employees — are not subject to Senate confirmation and thus would have been covered by this “Secret Order” given by AG which gave hiring/firing authority over those positions to Sampson and Goodling.

    The Waas article is confusing on this point, but I seriously doubt they’re talking about career officials, like section chiefs, who are almost always in the Senior Executive Service, and are subject to well defined appointment rules.

    I suspect the leak and the article are referring to Schedule Cs, lower level political appointees who are not subject to presidential appointment. There are a whole bunch of these at DOJ. Some have been friends or acquaintances of mine. In fact, in some (possibly all) of the divisions at DOJ, most Deputy Assistant Attorneys General are political Schedule Cs. It varies from division to division, office to office. One division I’ve heard about has only one career DAAG, the rest being Schedule Cs. At the other end, the Solicitor General has only one political deputy. You may remember that when Ken Starr worked in the Attorney General’s office in the first Reagan administration, he was responsible for adding that political deputy to the Solicitor General’s office, which had never had one.

    The article is still fascinating, especially with the Office of Legal Counsel telling them that this plan might be unconstitutional, but let’s not speculate that it had anything to do with career section chiefs or DAAGs.

    Attila (Pillage Idiot) (88e3e3)

  25. Deputy Attorney General Paul J. McNulty told congressional investigators that he had limited involvement in the firing last year of eight U.S. attorneys and that he did not choose any to be removed, congressional aides familiar with his statements said yesterday.
    McNulty said he provided erroneous testimony to Congress in February because he had not been informed that Attorney General Alberto R. Gonzales and his aides had been working with the White House on the firings for nearly two years, the congressional aides said.

    The politicization of Justice was White House policy, as people have been saying all along.

    AF (d700ef)

  26. AF – It’s not erroneous testimony if you tell people what you know. You can’t be expected to tell them what you don’t know, only Demorats expect that on these fishing expeditions, er, overaight hearings they are conducting.

    daleyrocks (906622)

  27. Has anyone seen the confidential memo Waas says is so damning up on the internet yet? Why not?

    It’s beginning to sound more and more like another Waas effort to make a mountain out of molehill.

    daleyrocks (906622)

  28. The politicization of Justice was White House policy, as people have been saying all along.

    You can’t look at anything Schumer says without acknowledging it, too, is politicized. Ditto Leahy.
    Schumer has already said he would support McNulty as next AG. So how can anybody look at what McNulty says at this point without seeing that it is politicized. Surely the man has personal ambitions. I’m not saying he would lie, but certainly we have to recognize all the players in this have their agendas.

    MayBee (2f3071)

  29. Gonzalez has always done what he was told; that’s been his role since Texas and there’s no reason to think it’s changed since. The orders came from above.
    Again, you’re all more concerned with protecting the republican party than the country.
    I could call it shameful, but at this point it’s amusing.

    AF (d700ef)

  30. The secret delegation memo was apparently so sensitive that it was published in the Federal Register according to the administration. OMG, Rove will stop at nothing. A cover up in broad daylight.

    daleyrocks (906622)

  31. Use the word Waas in a sentence: If I was to be considered a serious journalist, I would have to maintain a semblance of credibility.

    Once again AF you are more interested in nailing the Bush administration than understanding facts. Based on Waas’ flaky description of the situation, no facts have been presented but you have already drawn your conclusions. Has any wrongdoing been established? Has the AG abused his delegation authority? How about some citations to back up your authority.

    daleyrocks (906622)

  32. [...] Comment on Any story that begins “Secret DOJ Policy” is not going to be good for AG by MayBee This is how the AP paraphrases the order: the authority, with the approval of the attorney general, to take final action in matters pertaining to the appointment, employment, pay separation and general administration” of non-civil service employees of the Justice Department. Are people reading that … [...]

    Comment on Any story that begins “Secret DOJ Policy” is not going to be good for AG by MayBee : Legal-Keywords.info (93f37b)

  33. Jay #14:

    See this post and my comment thereto:

    http://volokh.com/posts/1177883377.shtml

    As you will see, I disagree with Eugene. I may post on this later.

    P

    Patterico (311bdf)

  34. Patterico,

    I read your comment at Volokh. I hope you post something more here because it’s interesting. Is California’s implied malice standard similar to reckless disregard or is it something more?

    DRJ (8b9d41)

  35. It’s obviously possible to politicize the DOJ and I’m sure we can find instances, perhaps several instances, where that happened in the Reno Justice Department and its predecessors. Nevertheless, I don’t think the core group of DOJ lawyers are overly politicized.

    Ho ho ho. That is a very funny statement. I worked at Justice during the last Administration. The idea that the career attorneys at Justice were a bunch of apolitical legal monks… well, don’t make me tear rib cartilege laughing. During the last Administration, the rule was pretty clear where I worked. Stick to liberal opinions, or keep your mouth shut and feign apolitical orientation, lest ye be exiled to an undesirable section within the division. Some sections were reputed to be better than others – a openly non-liberal attorney could practice in the civil division – but don’t expect to be hired into upper management. As for worse divisions… I heard stories about the civil rights division that made me infer that the politics had seeped down to the line attorney and non-lawyer staff hiring.

    Was it wrong? Maybe. I’m not sure. My sense is that overseeing broad legal policy entails making a number of political choices, and that one problem with Justice is that in many sections within multiple divisions, a significant number of the career attorneys do everything within their power to thwart the directions imposed from above. That denies the power of the President and his appointees to shape broad legal policy at Justice. Y’know, thwarting the results of elections. That it occurred when I worked there only bothered me a little; that it occurs now only bothers me a little. This problem is not unique to Justice but occurs frequently elsewhere within the federal bureaucracy.

    I guess keeping politics out of professional-level hiring and firing is a good thing, so long as the career staff either keep politics out of their decisions, or so long as the politics of your pet sections line up with your own personal politics. But it appears that it is an unparalleled evil if you don’t agree with the politics of those who don’t agree…

    As for Kyl Sampson being a sketchy staffer to put in charge of senior legal personnel decisions… no, he really wasn’t. He was doing legal personnel work for the WH personnel office dating back to 2001. If an attorney was seeking a political legal job (e.g. Labor or Interior Solicitor or agency General Counsel position) if it was in the plum book, the interested attorney often had to go through Sampson. I know several people who did. I cannot speak to his skills as an attorney, but he probably knows a lot about senior government attorney hiring and firing.

    Al Maviva (89d0b6)

  36. WLS, I don’t think this is the White House — with the knowledge of the President — throwing Gonzales under a bus as you seem to think.

    According to Waas, his scource spoke on the condition that neither his position nor agency be identified, because he feared retaliation from his superiors and the White House for disclosing aspects of the program. That sounds to me like a Deep Throat style leak rather than an authorized leak.

    Crust (399898)

  37. But I do agree that the intent (and effect) is to throw Gonzales under a bus. It just doesn’t sound to me like something authorized by the White House and the President.

    Crust (399898)

  38. Daleyrocks:

    The secret delegation memo was apparently so sensitive that it was published in the Federal Register

    Not quite. You’re presumably referring to this:

    The department published regulations in the Federal Register on February 7, 2006, stating that the final authority would be reserved for the attorney general.

    But if you read a little further down you’ll see this referring to the secret memo itself:

    At the bottom of the delegation order, this note appeared, in all capital letters, referencing the Federal Register: “INTERNAL ORDER-NOT PUBLISHED IN F.R.”

    Crust (399898)

  39. WLS:

    Re a replacement, the Dems on the J.Com. have suggested a name that I think would get past any confirmation issues without a peep — former Dep. AG Larry Thompson.

    Oh, I absolutely agree: Any replacement offered up by Pat Leahy would certainly be confirmed “without a peep.” But is it really in the best interests of the country for Leahy, Ted Kennedy, Joe Biden, Chuck Schumer, and Dick Durbin to force out Bush’s attorney general and substitute their own choice?

    I find it more than a little astonishing that you would take these gentlemen’s word that Larry Thompson would support the president’s priorities on prosecuting the war against global jihadism, illegal immigration, voter fraud, drug policy, and other issues at Justice.

    Presumably, you believe that Leahy, Kennedy, et al, have only the president’s and country’s best interests at heart. Forgive me for not being quite so sanguine, and for preferring that President Bush get to name the attorney general, rather than the Democratic majority on the Senate Judiciary Committee.

    Dafydd

    Dafydd (445647)

  40. Dafydd, when an official is actually incompetent, then I’m not that concerned with the “who will replace him” issue. As I said before, Rumsfeld was not, in any sense, incompetent. He may or may not have been wrong in several crucial judgment calls, but he was never incompetent… and he was always clearly the boss of his department. The same does not hold true, I think, for Gonzales. So far, we haven’t seen any evidence of what Gonzales himself was actually doing while letting his underlings (whether they were really his or whether they were White House plants) run the show.

    If he actually has been making some important decisions, now would be a fine time for him to speak up and tell us what kept him so busy that he allowed Sampson and Goodling to make all the personnel decisions for the Department.

    As another commenter noted, at this point, the President could delay replacing him long enough to make a recess appointment. Ideally, he will appoint a fairly apolitical individual who will restore the Department to operating like it did before Clinton began the process of politicalization when he fired all the U.S. Attorneys immediately upon taking office. The people I’ve talked with who would know tell me that indeed, the Clinton people started this process, and the Bush Administration began to institutionalize it. I think the President would have no problem getting that kind of person confirmed.

    PatHMV (7f2300)

  41. Al Maviva,

    I’m glad to give you such a good laugh. It’s good for your health.

    So how many politically-appointed DOJ lawyers are we talking about here? 10, 100, 1000?

    DRJ (8b9d41)

  42. If he won’t resign, he needs to be impeached.

    glasnost (f4ad7a)

  43. Dafydd — did you miss the point I made that Larry Thompson was nominated by Pres. Bush to be the Deputy Attorney General in 2001? Or that he was appointed by Pres. Reagan to be US Attorney in Atlanta in 1982?

    To say he would be the pick of the Dems is a mischaracterization. He’s a conservative Republican that the Dems say would not be controversial in their eyes, and he ran the Justice Dept. in a manner they found acceptable during Ashcroft’s years as AG.

    The reality is that the Dem’s control the gavel and have 51 votes. So, the Pres. would have to pick someone who can get votes from Dems to be confirmed.

    http://www.brookings.edu/comm/news/20030925thompson.htm

    WLS (077d0d)

  44. PatHMV:

    Ideally, he will appoint a fairly apolitical individual…. I think the President would have no problem getting that kind of person confirmed.

    So we have yet another person who thinks that the Democrats on the J-Com are only upset at politicization of the DoJ, just trying to restore the sort of non-partisan, unbiased attorney general we had under George H.W. Bush.

    Where have you guys been for the last six years? Have you been watching a different channel than I?

    Yes, Pat Leahy is only concerned about competence; he has no agenda to flip the domestic part of the war back to the Clintonian approach of treating terrorists like carjackers and housebreakers. You may be right; anything’s possible; but I would no more trust the non-partisan restraint of the Senate Democrats than I would have trusted the restraint of Saddam Hussein.

    WLS:

    Dafydd — did you miss the point I made that Larry Thompson was nominated by Pres. Bush to be the Deputy Attorney General in 2001? Or that he was appointed by Pres. Reagan to be US Attorney in Atlanta in 1982?

    No, I didn’t miss it. But it’s irrelevant. What matters is not who appointed him but what he did, and more important — what he plans to do.

    Who nominated Norman Mineta, Colin Powell, and retained George Tenet as DCI? Who nominated David Souter? How about Sandra Day O’Connor? Just because a Republican appoints someone doesn’t mean that person is a conservative or actually shares the priorities of the president; presidents make mistakes.

    There are two ways to approach this suggestion from the Democrats for a replacement for Gonzales:

    You can assume that the Democrats are just honestly trying to help the Bush administration, help the president achieve his goals and priorities.

    In particular, Pat Leahy, Ted Kennedy, Dick Durbin, and Chuck Schumer just want to help Bush aggressively fight the domestic front of the war on global jihadism… they want to help the president get an attorney general who will vigorously pursue surveillance like the NSA al-Qaeda intercept program and the SWIFT-surveillance program.

    Even if the Democrats emphatically reject this approach, maybe they believe so strongly in the unitary executive that they’re eager to help Bush find an attorney general who will do what Bush wants him to do — not follow the Democratic agenda.

    Perhaps you believe this is the best description of the Democrats’ motive and agenda. If that is the case, then presumably Larry Thompson would roll up his sleeves and continue to represent Bush’s position, Bush’s priorities, Bush’s agenda… not his own, and not Pat Leahy’s.

    But an alternative assumption is that the Democrats named above are desperately trying to thwart the president’s domestic program for fighting the war.

    If that is a more appropriate description of the agenda of Leahy, et al… then it’s appropriate to ask why they’re pushing Larry Thompson, as you say they are. If the Democrats are acting like — well, like Democrats, then it’s very reasonable to wonder whether they have already extensively vetted Thompson to make sure he will do what they want.

    If this is what the Democrats have up their sleeves, then they would have gotten a prior guarantee that Thompson would work against the unitary executive, pushing his own policies at Justice — which would be diametrically opposed to what we have done under both John Ashcroft and Alberto Gonzales, and much more like what we did under Janet Reno.

    Which hand do you choose, WLS? Do you believe the Democrats are just trying to help Bush implement a Republican program of active defense? Or do you believe they’re actually trying to press their advantage and put their own man in at the Department of Justice?

    I know which possibility I find more likely.

    The reality is that the Dem’s control the gavel and have 51 votes. So, the Pres. would have to pick someone who can get votes from Dems to be confirmed.

    Or alternatively, not force the issue by booting out Gonzales in the first place. Which is my position, as much as I agree that Gonzales is not a particularly good AG.

    Look, Thompson may be a very gifted attorney and a wizard at running an administration. So what? John Paul Stevens (another Republican appointee!) was an extraordinarily gifted attorney… who has been an unmitigated disaster on the Court, from my perspective. If only he would use his genius for goodness instead of evil…

    You seem very excited that Thompson joined the Brookings Institution — but this is a liberal think tank, WLS. Surely you must have known that.

    And the New York Times calls him “moderate;” considering where the Times sits on the political spectrum, I am not mollified by their characterization. Sure, Bush remains friendly with him; but Bush is friendly with a lot of people who disagree with him on every important point (Ted Kennedy, for example)… he’s a friendly guy.

    But everything I can find out about Thompson, including the link you provided, tells me that he is a very liberal Republican (probably about like Lincoln Chafee). And everything I know about Democrats tells me to be very, very suspicious when they suddenly become “helpful” to George W. Bush.

    Do you really think they’re just being selfless good guys here?

    Dafydd

    Dafydd (445647)

  45. So WLS is drawn into an argument with Daffydduck.
    This is really getting funny.

    AF (d700ef)

  46. Dafydd,

    Keep an incompetent loyal conservative in office instead of replacing him with a competent moderate?

    Are you assuming the world ends in January, 2009?

    The Republicans might want to start trying to appeal to more than 28% of Americans soon. This is a good place to start.

    alphie (015011)

  47. In Bushbot land, it couldn’t be that the Democrats could be putting forward a nominee they would accept because, well, they would accept him, and he seems in sync with many of Bush’s legal views. (I admit, Bush may have found every American not contributing to Red State who believes that the 2000 election plus 9/11 revived the royal Dispensing Power, now applied to FISA, that cost James II his throne.) After all, in Bushbot land, the Democrats’ true choice for AG is Ramsey Clark. Thomas Sowell wrote today

    When I see the worsening degeneracy in our politicians, our media, our educators, and our intelligentsia, I can’t help wondering if the day may yet come when the only thing that can save this country is a military coup.

    This, then, is what it means to be a conservative in America: to have grown hysterical in fear of the Democrats and democracy. Well, some people are always looking for an excuse to let their ids run free, and in Daffy’s case, I’d say he has well and truly found it.

    Andrew J. Lazarus (7d46f9)

  48. Thomas Sowell:
    It would be nice to know the context of this statement. It is very disturbing that a person of Sowell’s intelligence and integrity would see such a dark future; but, I can’t say that he is wrong about the indices he marks. And, he has been expressing his concerns in his writings for some time. Perhaps it is just the dark musings of an old man?

    Another Drew (8018ee)

  49. Dafydd, never mind the War on Terror (which the Glorious Decider is fighting in *such* a brilliant matter it’s impossible to think of anything other than overwhelming victory for the People’s Armies).
    All the Democrats really want is a AttyGen’l who, unlike GWB, actually respects the Constitution and thinks the President should not be able to do whatever he wants, whenever he wants, regardless of what the Constitution and the laws of the US actually say. Do you really want to live a totalitarian state where the President has untrammelled power? Because that’s the end result of your approach to this matter. That’s what the Bush Administration advocates, and that’s what Gonzales and ilk are trying to impose: a President that is unchallengeable by any means. Don’t be surprised if those of who don’t want to live in a totalitarian state object, however.

    kishnevi (03a14b)

  50. Dafydd, you still haven’t given any examples of exactly what good Gonzales has done at Justice. Do I attribute any good motives to the Dems on Judiciary? No, not at all. Do I think, however, that they are themselves subject to political pressure and that they couldn’t sustain a filibuster or other serious stalling tactics on a well-qualified professional? Yes.

    And as I said, I just don’t see that Gonzales has done anything good to justify keeping him in that job. I’m quite certain that no potential replacement would, say, reestablish the wall between foreign intelligence and law enforcement which Jamie Gorelick established in the Clinton Justice Department.

    There might or might not be some issues regarding some of the wiretap and enhanced interrogation issues. But frankly, if the legal arguments for them are not strong enough to be supported by some solid professional, then we should be more worried about the strength of the arguments rather than the office-holder. And the President managed to get most of that resolved legislatively in the past couple of years, anyway.

    If we defend an indefensible appointment, we weaken ourselves and give credibility to our enemies, who call us blind ideologues. Sticking with someone like Rumsfeld when he is under attack for improper reasons is principled and responsible. Sticking with someone like Gonzales when he is under attack for pretty legitimate reasons (being completely disconnected from major personnel decisions) is foolhardy, and detracts from more legitimate issues.

    PatHMV (0e077d)

  51. DRJ – section chiefs (one cut below division heads, basically), many of the SES and/or Special Counsel (to the section chiefs) – type positions I was aware of had fairly obvious political components in the selection, even though they might have been GS-15 or SES attorneys, which are *technically* apolitical selections, but it doesn’t often work that way in practice. They, in turn, would typically hire deputy section chiefs whose views on the law and policy missions aligned with their own. In the bad sections, these preferences appear to have trickled down to line attorneys. In the better sections, the line attorneys saluted and did what they were told, and mostly got left alone. It was more like 25 disparate (mostly successful) practice groups in a big law firm, than a single entity with all elements functioning in a uniform manner. Each group was different, from what I saw.

    FWIW, I only knew of a handful of people I thought were unqualified hacks… I’m loathe to say that consideration of political/legal outlook should be out of bounds for senior positions at Justice, even the civil service (non-appointed) positions where discretion is exercised. In litigation that has a national impact (for instance environmental or fair housing law enforcement) the direction an attorney takes a case can shape the law. The President is supposed to have a big say in that. You don’t like it, get him unelected.

    Al Maviva (042d19)

  52. Where is the super secret document?

    Waas claims to have seen a draft marked not published in the Federal Register. The AP claimed to have a copy of the document. Eggen’s story in today’s Washington Post claimed that the administration had indeed published the document in the Federal Register.

    For a story about the delegation of authority that had the left all a twitter last night, the trail went dead mighty quickly today.

    Was this another story that was all Waased up before it was started?

    daleyrocks (906622)

  53. Drew, if you’d follow the links you’d see the context.

    “Sticking with someone like Rumsfeld when he is under attack for improper reasons ”
    The man is delusion incarnate. His record is utterly unblemished by anything even faintly resembling the shadow of the prospect of success.

    On “Jamie Gorelick’s Wall”

    But the joint House and Senate intelligence committees’ report of pre-September 11 intelligence failures did not find that the “wall” originated in the Clinton administration; the report states: “The ‘wall’ is not a single barrier, but a series of restrictions between and within agencies constructed over 60 years as a result of legal, policy, institutional and personal factors.” Similarly, a ruling by the top-secret Foreign Intelligence Surveillance Court of Review — when it met for the first time in 2002 — traces the origin of the “wall” to “some point during the 1980s.”
    Nor did enforcement of the “wall” end with the Clinton administration. In his April 12, 2004, testimony before the 9-11 Commission, then-Attorney General John Ashcroft conceded that his own deputy attorney general, Larry Thompson, reauthorized the “wall” in August 2001.

    And I’m waiting for someone here to take a break from defending this corrupt and decadent administration and respond to Sowell’s attack.
    Why does Thomas Sowell hate this country?

    AF (d700ef)

  54. Alphie:

    Keep an incompetent loyal conservative in office instead of replacing him with a competent moderate?

    May I make so bold as to suggest that what the New York Times sees as “moderate,” most readers of this blog would see as “scary left, anti-war fanatic.”

    And yes, I would prefer a semi-competent AG who is loyal to the president and his priorities — over a competent opponent of everything Bush and the GOP stand for. Unless you’re a Democrat (or Green, or somesuch), I cannot see that you’d make any other choice.

    Dafydd

    Dafydd (445647)

  55. AF:

    On “Jamie Gorelick’s Wall”

    But the joint House and Senate intelligence committees’ report of pre-September 11 intelligence failures did not find that the “wall” originated in the Clinton administration; the report states: “The ‘wall’ is not a single barrier, but a series of restrictions between and within agencies constructed over 60 years as a result of legal, policy, institutional and personal factors.” Similarly, a ruling by the top-secret Foreign Intelligence Surveillance Court of Review — when it met for the first time in 2002 — traces the origin of the “wall” to “some point during the 1980s.”

    Nor did enforcement of the “wall” end with the Clinton administration. In his April 12, 2004, testimony before the 9-11 Commission, then-Attorney General John Ashcroft conceded that his own deputy attorney general, Larry Thompson, reauthorized the “wall” in August 2001.

    Say… that wouldn’t be the very same Larry Thompson that WLS suggests would make a fine replacement for Attorney General Alberto Gonzales… would it?

    Odd; I don’t seem to recall WLS reminding us that Thompson was an advocate (and reauthorizer) of Gorelick’s Wall. Did I simply miss it?

    On Thomas Sowell:

    For some odd reason, Sowell, one of the brainiest guys writing today, seems disgusted and repelled by the pomo, nihilistic, narcissistic, shrewish, hectoring, girly-man New Left and their scorched-tongue tactics. In fact, he is so disgusted that he — a man who has been accused of committing journalism in his time — resorts to some melodrama.

    For some reason even odder, you imagine this needs some sort of explanation, apology, or denunciation. You’re talking to the wrong fellow; unlike our host, I love Ann Coulter’s writing, I love her speeches, I laugh at her jokes, and I think she debates very well. I even think she looks good, if rather too skinny for my personal taste.

    (And this is not merely because I know for a fact she sometimes reads Big Lizards…!)

    I don’t see that Sowell’s pre-penultimate paragraph needs any apology or belly crawling. And Sowell himself is rather like Mary Poppins: he never explains anything.

    Dafydd

    Dafydd (445647)

  56. I should have noted here that you can read the entire Thomas Sowell column here.

    Hm… I’m not sure Patterico’s comments allow a href commands… if not, then the URL is:

    http://article.nationalreview.com/?q=YmU0NGQ0ZTQzZTU4Zjk4MjdjZWMzYTM4Nzk2MzQ0MGI=

    Dafydd

    Dafydd (445647)

  57. Dafydd,

    Are you claiming you represent the views of all Republicans?

    I don’t think so.

    Some of us prefer competence to obsequious servility.

    Loyalty oaths are for Banana Republicans only.

    alphie (015011)

  58. Alphie:

    So you join with Democrats in rejecting the unitary executive. I am unstunned and fail to blink in surprise.

    Dafydd

    Dafydd (445647)

  59. Dafydd, who is the “semi-competent” AG you have in mind? That description would seem to rule out Gonzales.

    Crust (399898)

  60. I’m sorry Daffy, but the United States is not a monarchy.
    Maybe you should move to Saudi Arabia.

    AF (d700ef)

  61. Dafydd, it’s entirely possible to support the unitary executive theory and yet still not desire to see a president exercise that authority by appointing a bunch of sycophantic yes-men into high positions of the government. When I worked for our state’s governor, all of us, every last one on the team, were committed to pursuing our boss’s policies. But we also did not take literally every passing whim of his, nor did we often presume to know what he “really” wants done.

    But I have seen plenty of political operatives who do exactly that. They tell the boss “yes, sir” WITHOUT pointing out to him the dangers they may see in that course of conduct. They guess that the boss always wants to proceed with some rabid, highly political agenda, even if he never actually says so. They make major decisions without ever bothering to run it up the chain with an explanation of the potential risks and rewards. For a well-run government, such political operatives must be kept under tight control, or they can wreak a lot of damage, both to the government and ultimately to their political boss.

    One can be a loyal member of the President’s cabinet, pursuing the President’s chosen agenda, without being a “yes-man.”

    PatHMV (7f2300)

  62. According to PatHMV it’s left to the cabinet to act, if it chooses, to act as a check on the President’s power.
    Sorry, but that’s not how our government was designe; as for the same reason we don’t have prosecutors representing the accused.
    Adversarial systems require opposite members and Congress has a roll to play.

    AF (d700ef)

  63. “roll?”

    AF (d700ef)

  64. Whatever the theoretical meaning of “unitary executive”, in practice it has devolved into a belief that the President stands above any Congressional enactment he feels impinges on his High and Mighty Powers. The Administration has said so quite plainly in its defense of warrantless wiretapping, and in view of the generosity with which the FISA courts grant wiretap warrants, it’s obvious to conclude that evading, or, rather, denying, any control over the whims of His Royal Presidentness is one of the very points of the policy. As I alluded to before, this aspect of the “unitary executive” is neither more nor less than revival of the royal Dispensing Power that ended in our legal tradition with the Glorious Revolution of 1688. It has echoes in other legal traditions, too.

    Indeed, it must be very hard to find candidates for Attorney General who support this tyrannical policy. And in the alternative we find conservative, but mainstream, Republicans, who are known to Daffyd as scary leftists. The thinking is inside-out here. Daffyd is very scared of something, but it isn’t Larry Thompson. Perhaps liberals have somehow gotten to his precious bodily fluids.

    Andrew J. Lazarus (7d46f9)

  65. PatHMV:

    Dafydd, it’s entirely possible to support the unitary executive theory and yet still not desire to see a president exercise that authority by appointing a bunch of sycophantic yes-men into high positions of the government.

    I completely agree: Gonzales should never have been appointed AG; he’s not up to the job. He’s not (as some here absurdly claim) so completely unqualified that having even a rabidly anti-war Democrat like Bill Richardson would be preferable. But clearly, Bush made a very bad mistake appointing Gonzales in the first place.

    (If the president really wanted a Hispanic in the position, for some reason, or even on the Supreme Court, I would have much preferred Miguel Estrada. If he hadn’t been thoroughly disgusted after the Democrats filibustered his nomination to death and been willing to accept AG instead, the Dems would probably have actually given him a vote… since it’s only a cabinet position, not a lifetime judgeship.)

    So Gonzales shouldn’t have been appointed in the first place. But the problem is, Pat, we’re no longer in “the first place.” We’re in the end game; and the Democrats are so terrified that a victory in the Iraq war would give a boost to the Republicans for 2008 and to Bush himself — the man Democrats literally hate worse than Osama bin Laden — that they will do anything they can to ensure we lose… by any means necessary.

    We simply cannot afford to give them the opportunity to destroy the Department of Justice, a critical player in the war, by letting them replace the attorney general with one of their own.

    I can hear people saying, “hey, what about replacing Don Rumsfeld? Bush was able to get Robert Gates confirmed!”

    But of course, Bob Gates was confirmed by the 109th Congress, controlled by the Republicans — not by the current, Democrat-controlled 110th Congress.

    I doubt the Dems would have let Gates through, had they been in the majority; but as the minority party, they would have had to resort to a filibuster. This would likely have been seen as a nasty and dangerous swipe at the Pentagon by the minority party, in chop-licking anticipation of wreaking havoc in a month.

    Thus, the word went out (I am convinced) to vote for Gates — and to save the fight until they actually the legitimacy conferred by majority status.

    But if they’d had the majority in 2006, they could simply nave voted him down in committee… which is always seen as much more legitimate than a filibuster. If they’d had the votes, there is a good chance they would have done it.

    Well, now they’ve taken over — and they have the votes.

    The Democrats are already telling Bush who he should appoint to replace Gonzales: a liberal Republican who joined the Brookings Institution (rather than, say, the Heritage Foundation), and who tried to restore Gorelick’s Wall between military and criminal intelligence gathering. This tells us everything we need to know.

    It would be as if the Republican Congress in 1999 demanded the resignation of Janet Reno… and suggested that if Bill Clinton would just nominate Zell Miller, he would sail right through!

    Democrats are hunting scalps, and they’ll continue to do so until Bush is out of office. Any resignation by a top cabinet officer having any jurisdiction over the war effort plunges us into deadly peril.

    Don’t do it.

    Andrew J. Lazarus:

    Whatever the theoretical meaning of “unitary executive”, in practice it has devolved into a belief that the President stands above any Congressional enactment he feels impinges on his High and Mighty Powers.

    Regardless of linguistic shortcomings among liberals, Dafydd ab Hugh uses the English language with clarity and precision. To quote a great Republican philosopher, “I meant what I said and I said what I meant.”

    Dafydd

    Dafydd (445647)

  66. Dafydd is behind the times.

    the Democrats are so terrified that a victory in the Iraq war would give a boost to the Republicans for 2008 and to Bush himself.

    Unfortunately, that’s a pretty fair description of the Kerry-Clinton-Gephardt Democrats, Fall 2002. And their decision was to tag along with George and Dick against their better judgment.

    Being “terrified” of a “victory” in Iraq now is like paying millions of dollars for a machine that will keep monkeys from flying out of my butt. There just isn’t any need. We’ve abandoned the reconstruction of Iraqi infrastructure; it’s no longer in the budget. Neither is a democratic, secular Iraq. You remember, like the one that great con-man Ahmad Chalabi hinted would be pro-Israel (even to the extent of setting is nephew up in a consulting partnership with a leader of the Israeli settler movement). Today, George Bush himself had this ringing description of victory: “And the definition of success as I described is sectarian violence down.” Down, what, ten percent? Wow, that’s for sure worth thousands of lives, isn’t it? To influence whether the pro-Iranian faction, the pro-Moqtada faction, or the Sunni irredentists come out of the civil war on top.

    Actually, Bush has made clear what victory is, and it isn’t about anything on the ground in Iraq. Victory is showing the Democrats, his father’s old friends, and the American people that nothing could restrain him and his Imperial Unitary Executive from staying in Iraq until the day he leaves office, which can’t come soon enough.

    Andrew J. Lazarus (7d46f9)

  67. My apologies to all for feeding the energy creature. I now know who to ignore in future.

    Sorry,

    Dafydd

    Dafydd (445647)

  68. Daffy Davie Hughson says “I mean what I said”.
    What you said boils down to this: you support Bush’s War in Iraq so badly that you are willing to support any violation of the Constition in its name, and you are willing to equate both respect for the Constitution (that is, acknowledging that Bush is claiming dictatorial powers) and respect for the facts (that is, acknowledge that it is impossible for any situation remotely like “victory” to come about in Iraq) with treason.
    If you mean what you said, you are a fascist.

    kishnevi (7a9e8b)

  69. Patterico, thanks. It was fun to see the debate was already raging.

    I did leave a note there, raising my issue about the compassionate euthanasia. Say the next-of-kin had not been the shooter, can the shooter get upgraded to murder because a relative pulled the plug?

    Jay D. Homnick (922484)

  70. It looks like the Federal Register issue has been definitively resolved since the DOJ has now released the formerly secret memo. As Waas asserted, it says (bottom of p.1): “INTERNAL ORDER — NOT PUBLISHED IN F.R.”

    Crust (399898)


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