Cardona's Appointment Extended Using PATRIOT

by emptywheel

I said in my last post that a just goddess would set aside a special wing of a prison for all the corrupt GOP Congressman from California. Unfortunately, Alberto Gonzales is still in charge, so our just goddess is still waiting in the wings. Raw Story reports that Alberto Gonzales just went back to the PATRIOT provision allowing him to appoint a USA unilaterally in order to keep George Cardona in place in Los Angeles.

In a Senate Judiciary Committee business meeting Thursday morning, Senator Patrick Leahy (D-VT) revealed that Attorney General Alberto Gonzales once again used an interim appointment authority at the heart of the US Attorneys controversy that Congress banned in a bill sent to the President for signature on June 4.

"Senator Feinstein’s U.S. Attorney bill....repeals that portion of the Patriot Act Reauthorization that had allowed the Attorney General to circumvent advice and consent with respect to U.S. Attorneys. That bill, the Preserving United States Attorney Independence Act of 2007, has been on the President’s desk since June 4. It seems he just cannot bring himself to sign it. Instead, we were informed yesterday through the Justice Department that the Attorney General has used the power that we have voted to repeal, again," said Senator Leahy, the committee's chairman.

Tracy Schmaler, a spokeswoman for Senator Leahy, clarified the situation in an e-mail to RAW STORY.

"It just so happens the committee got notice yesterday, that on June 16, George Cardona's 210 days as Acting U.S. Attorney in the Central District of California will have run out and the Attorney General will appoint him as an interim U.S. Attorney at that time. (i.e. still using the end-run authority because Bush has slow-walked signing the bill)," she wrote.

George Cardona, in case you've forgotten, is the guy who replace Debra Wong Yang, who by all appearances was bought out of her position as USA just as her office and Carol Lam's office closed in on the powerful Jerry Lewis.

That's significant, because Lewis has already indicated (to Novak, at least) that he will retire at the end of his term. Are they just trying to stall out any investigation, then remove Lewis from office?

Finally, the move is especially curious because Gerry Parsky, a bigwig Republican who heads a Commission that picks judicial appointees in CA, has been particularly cranky about being left out of the process of naming USAs. And DOJ already went around him on this position specifically.

Once Yang resigned in November to pursue private law practice, it was up to the commission to make recommendations to the White House and the Justice Department. But Sampson and Goodling tried to generate candidates of their own. Interviews were scheduled with half a dozen people, many of whom had held political appointments in the department.

Parsky did not respond to e-mailed questions about his role in the process.

After word of the interview schedule leaked, Parsky called the White House and the Justice Department to complain, according to a person familiar with the process who requested anonymity because it involves a personnel matter. Goodling was allowed to proceed with the interviews, but was told she had to tell the candidates that they would have to reapply through the commission.

Ultimately, the commission is believed to have recommended two candidates; the only one interviewed by the Justice officials in Washington was a career prosecutor who has headed the criminal division of the Los Angeles office. The White House has not said whom it will nominate for the post.

Some people close to the selection process suspect Goodling and Sampson were attempting an end-run around the commission to install a politically connected Washington insider, possibly by using a law that permitted the attorney general to appoint interim U.S. attorneys without Senate oversight.

So there's got to be something going on, if BushCo is willing to use the PATRIOT appointment provision in one last blaze of glory to bypass Gerry Parsky, yet again.

Comments

[bmaz]

The DiFi and Spectre (mis-spelled intentionally) amendment takes effect either today or tomorrow someone at FDL was saying. Had to get one last bite out of this apple they swore they were not going to eat.

[William Ockham]

Something very odd is going on here. If you match up the LA Times story with this quote from the metnews (a local L.A. legal newspaper) on 11/21/2006:

Cardona, who was previously the number two person under Yang, said that he is not seeking the presidential appointment, but declined to say why.

The metnews also points out that Cardona once served as the heard of the criminal section, leading me to believe he was interviewed for the job. Add to that the little interchange between Sampson and Miers about Parsky in January, and you have a seriously weird situation.

[Ishmael]

EW - I could go look this up, but it's easier to ask you! :) Was Ms. Yang interviewed by congressional investigators about the circumstances of her decision to enter private practice? Seems to me that if someone wanted to put some pressure on her about the $1 million bri.. I mean signing bonus she received, a lot could happen - if Cardona is in place and won't do it, pleading the 5th in Congress and then getting immunity would open up some awfully wormy cans.

[JGabriel]

Emptywheel @ top: "So there's got to be something going on, if BushCo is willing to use the PATRIOT appointment provision in one last blaze of glory to bypass Gerry Parsky, yet again."

Not that Bush has ever been anything but the paradigm of self-destructive stupidity, yet doesn't it seem kind of counter-intuitive to piss off one of your own major financial and political supporters this way. No wonder Bush's political fundraising dinners are tanking.

[emptywheel]

bmaz

Yes, that will go into effect on Friday. So for all the other replacement people, there will be a 120 day window for their appointment (they'll effectively become interims as it existed under the old law). But for some reason, they chose to try something different with Cardona.

ANd yes--as WO points out, there's something funky here.

Parsky was particularly pissed in December about the firing (he wasn't happy about Ryan's treatment). So they tried an end-run in the fall, somehow Cardona got appointed acting, and now they're naming him interim. It's actually unclear whether he'll have 120 days starting Friday, or whether this is an attempt to bypass Parsky altogether.

[earlofhuntingdon]

While Congress is in session, Under Art. I, sec 7, Mr. Bush has only ten days (Sundays excepted) to sign the bill or veto it; otherwise it becomes law without his signature.

Assuming Shrub is unwilling to take responsibility for vetoing this bipartisan measure, an interim appointment made before June 16th would come in under the wire. Another stick in the eye of the law and Congress from the Petulant President.

[emptywheel]

Ishmael

Unless she did it very quietly (which would be hard), no, she hasn't testified.

[zoe]

Marcy - First and foremost thank you for all your /redibly hard work, insights, and intelligence.

Re: Cordona. There was an article in WSJ that talked about O'Brien being suggested for the job - this was on June1. I do not know how this figures in, but clearly it was very important to WH to make this appointment.
link: http://blogs.wsj.com/law/2007/06/01/musical-chairs-californias-us-attorneys/

[emptywheel]

WO

From zoe's link, it looks like O'Brian is the CRM Chief:

The Daily Journal reported yesterday (link unavailable) that the U.S. Attorney in Los Angeles might be filled by veteran prosecutor Thomas O’Brien. The timing of the announcement remains unclear. George Cardona, the chief assistant, has been serving as acting U.S. Attorney.

O’Brien is currently chief of the criminal division in L.A., where he formerly prosecuted gangs out the L.A. County DA’s office. He received his JD from the University of San Diego School of Law in 1993. Best biographical detail: After graduating from the Naval Academy, he went on to the U.S. Navy Strike Fighter Tactics Instructor program, aka Top Gun.

ANd Top Gun, too--so they can replace Duke Cunningham and David Iglesias in one fell swoop.

[William Ockham]

zoe,

The L.A. Times reported the same story on June 1. Now here is what is puzzling. Because Cardona was the FAUSA, they could leave him in place as long as they make a nomination before the 210 days are up. So, if they actually nominate O'Brien some time in the near future, all this is much ado about nothing, just a case of not getting the background checks done on time. Of course, if that's the case, they brought it on themselves by Sampson and Goodling trying to go around the Parsky commission in the first place.

[emptywheel]

WO

Yes, you're right, this might be one of two non-nefarious things.

First, just the coincidence of the 210 day deadline with the UnPATRIOT going through. Or it could be just a statement that they need to keep him on (which amounts to some of the same thing).

But it is weird, given Bush's reluctance to sign this.

[bmaz]

I thought Bush answered a press question some time ago on the issue of Congress reverting the law to it's original form on this by saying he would sign that. I may be full of it, but that is my recollection.

[BlueStateRedhead]

Could someone clarify?

Didn't Bush promise to sign the bill back in about February?
Didn't AGAG say he would never ever use the law? and did he say so under oath? Or at a presser?

I am sneaking this post in while working on deadline, and apologize for not looking all this up myself.

[Rayne]

Need to scramble and look into the 10-day "rule"...I thought I'd read somewhere that a bill becomes law even if the president does not sign it within 10 days of presentation to the president...?? Is this appointment not legal if this is the case?

[Rayne]

U.S. Constitution, Article I, Section 7:

...If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law.

We're past the 10-days, aren't we? What's the next step -- sue?

[William Ockham]

Ok, I think I have this figured out (but I hope one of our lawyers will correct me if I'm wrong):

Cardona, as FAUSA, was appointed interim USA under the provisions of the Vacancy Reform Act. If Bush doesn't submit a nomination to the Senate with 210 days of Cardona's appointment, it runs out. Until Bush signs the new law, the only two ways to have a USA for CDCA would be a AG appointment under the Patriot Act provisions or a recess appointment by Bush when the Senate recesses next.

If Bush signs the law before Cardona's 210th day, the old court appointment process would be in play. Unless they have some reason to believe that the court wouldn't appoint Cardona (something that seems unlikely since the DOJ, Parsky and the Dem Senators are presumably on board with him), the likely explanation for this is pure hubris.

[KLynn]

10 day rule here:

http://www.senate.gov/reference/resources/pdf/legprocessflowchart.pdf

If the ten days passed while Congress was in session, I understand this to mean it is a law.

[Rayne]

WO -- we very much need to determine the date that the bill was sent to the president. Somebody's playing games with this date quite deliberately. Who held it up after it was signed in each of Senate and House?

[JGabriel]

Marcy, have you seen this?

Fox News: "…Sources say VP Cheney will be pushing hard for a presidential pardon for Scooter Libby…"

http://www.crooksandliars.com/2007/06/14/does-fox-news-have-insider-info-on-cheney-and-a-pardon/

If true, and one assumes Fox has good sources for Cheney, if nothing else (Fox being Cheney's very favoritest news network), then doesn't thi put Cheney directly in line for impeachment charges, as John Dean discussed in his column at Findlaw? ( http://writ.news.findlaw.com/dean/ )

Just seems kind of reckless, from Cheney and/or Fox.

[Rayne]

Wikipedia, "Dismissal of U.S. Attorneys Controversy", on TITLE 28, PART II, CHAPTER 35 § 546

On March 20, 2007, the Senate voted 94-2 to re-instate the 120-day term limit on interim attorneys appointed by the Attorney General.[53] On March 26, the U.S. House overturned it as well, by a vote of 329-78.[54]

What happened after it left the House?

[emptywheel]

Rayne,

The bill was delivered to POTUS on either June 4 or 5 (the two February bills were different, so this is the one that was passed out of conference). So 10 days not including Sundays isn't until tomorrow or Monday.

[Rayne]

House bill HR 580 -- status via Thomas.gov (link may age, good for a limited time)

Senate bill S 214 -- status via Thomas.gov (link may age also, good for limited time)

Lewis voted nay on HR 580. Bush signed S 214 TODAY.

Partial timeline of S 214 from Thomas.gov:

3/20/2007:
Passed Senate with an amendment by Yea-Nay Vote. 94 - 2. Record Vote Number: 81. (text as passed Senate: CR S3307)
3/20/2007 1:25pm:
Received in the House.
3/20/2007:
Message on Senate action sent to the House.
3/20/2007 3:08pm:
Held at the desk.
5/22/2007 12:03pm:
Mr. Conyers moved to suspend the rules and pass the bill.
5/22/2007 12:03pm:
Considered under suspension of the rules. (consideration: CR H5553-5556)
5/22/2007 12:23pm:
At the conclusion of debate, the Yeas and Nays were demanded and ordered. Pursuant to the provisions of clause 8, rule XX, the Chair announced that further proceedings on the motion would be postponed.
5/22/2007 3:53pm:
Considered as unfinished business. (consideration: CR H5580-5581)
5/22/2007 4:23pm:
On motion to suspend the rules and pass the bill Agreed to by the Yeas and Nays: (2/3 required): 306 - 114 (Roll no. 397). (text: CR H5553)
5/22/2007 4:23pm:
Motion to reconsider laid on the table Agreed to without objection.
5/22/2007:
Cleared for White House.
6/4/2007:
Presented to President.
6/14/2007:
Signed by President.

WHO HELD THIS UP BETWEEN 5/22 AND 6/4?? Did they manipulate the timing to coincide with the Memorial Day holiday break to appoint Cardona??

[Rayne]

How in the hell did this get held up from late March to late May? I simply don't grok this. There were no substantive changes that I can see between HR 580 and S 214. EW, I know at one point we were wondering whether they'd do this...or did this. Do you have more on these two gaps?

[eyesonthestreet]

hope this helps:
S 213, signed by the president, 6/14/2007 (today!)

http://thomas.loc.gov/cgi-bin/bdquery/z?d110:SN00214:

[eyesonthestreet]

oops, someone beat me to it and i see i got the number worng, sorry