The Replacements

by emptywheel

This is my outtamyarse guide to the potential replacement candidates for AGAG floated so far:

Michael Chertoff: I think someone in the Administration floated Michael Chertoff as a replacement candidate before that someone really thought things through. Sure, Chertoff has been approved by the Senate before. But that was before 11/7--and we know that 11/7 changed everything. Not to mention Katrina. Part of me wonders whether the urge to make Chertoff AG was just an attempt to get him out of DHS, where he's screwing things up royally. And once Fran Townsend refused to take the DHS job as Chertoff's replacement, the Administration was left with no way to make the transition gracefully and has likely abandoned the idea.

Laurence Silberman: Democrats may be weak-kneed. But there's no way (I hope) that they'll accept Silberman as a replacement candidate for AGAG. Silberman has been the fixer for Republican scandals going back to Watergate, with a particularly prominent role in Iran-Contra. Allowing Silberman to serve as AG would be getting rid of an incompetent hack and replacing him with a competent, more dangerous hack.

Ted Olson: Another of the candidates floated long ago, when BushCo would have been nominating a replacement from a position of strength, rather than one of desperation. Since that time, the curious circumstances around Debra Wong Yang's hiring as Olson's close associate at Gibson Dunn have arisen; that involves Olson in the USA Purge in a tangential enough way that you'd think it'd prevent him from being confirmable. Unfortunately, I wouldn't put approving Olson beyond the weak-kneed Democrats.

Larry Thompson: Thompson was Deputy Attorney General when BushCo first set about shredding the Constitution, which is a major strike against him. It's unclear whether Thompson was actually read into many of the most egregious programs. But still, one would hope that we wouldn't approve anyone (besides Jim Comey) who has been through the Bush DOJ already. Unfortunately, early on in this process, Chuck Schumer listed Thompson as an acceptable choice for him as a replacement AG, though it has been reported that Thompson is uninterested in leaving his cushy job at Pepsi to clean up Gonzales' mess.

Paul Clement: Clement's stock as a replacement seems to be rising, with lots of folks hearkening back to profiles quoting people from both sides of aisle complimenting Clement for his intelligence. But note closely what these profiles hail Clement for: his ability to argue either side of an argument very effectively. That's great when he's defending Russ Feingold's Campaign Finance before SCOTUS. But in the position of Attorney General, he would be arguing Bush's side of the argument exclusively. Furthermore, Clement has already proven himself willing to rewrite the Constitution in the name of defending BushCo's executive privilege claims. Lucky for us (because I suspect Democrats would pass his nomination), appointing Clement as AG doesn't solve BushCo's gaping holes in every management position at DOJ, since they'd just have to find another Solicitor General. So I suspect we will be spared this sophist as AG.

George Terwilliger: I find it curious that the name receiving most attention--after BushCo realized what a disaster appointing Chertoff would be--is one of Poppy's guys, with close ties to Bush family consigliere James Baker. Terwilliger has been specializing in white collar defense of late, which might be considered a huge plus to those trying to get through the rest of Bush's term with no indictments. Terwilliger's ties to Republican scandal fixing are more remote than, say, Silberman. He was on the Bush Recount legal team. And, more ominously, Terwilliger oversaw the BCCI settlement, which saved the US some money in bailouts, but probably also increased the comfort level of the Saudis who had bankrolled the giant money-laundering scheme. I can't imagine the Democrats opposing Terwilliger in force, which is probably why he's a leading candidate.

Michael Mukasey: Mukasey is the former senior judge in SDNY (so I'm hoping maybe our local expert on that area might pipe in with an opinion) and he sounds like--given the options--a pretty good choice. Most notably, Mukasey took a "split the baby" position on an early Padilla decision; he ruled that Bush could designate him an enemy combatant (a decision that did not stand on appeal), but he also insisted that BushCo had to allow Padilla to see lawyers. I suspect that his name has been forwarded by the Democrats, most likely Chuck Schumer, who has supported him for a SCOTUS appointment as well. Which probably means his name is floating out there solely because Democrats are floating it, and not because BushCo is giving it serious consideration.

Update: The WSJ makes a similar list. The only candidate I missed who has a shot in hell of being nominated (I'm ruling out Patrick Fitzgerald and Jim Comey, for example, and I think Luttig disqualified himself with his comments on the Padilla case, though that might convince Dems he believes in the rule of law) is Chris Cox:

[14] Chris Cox The SEC chair, former Congressman and ex-Latham & Watkins partner has his hands full at 100 F Street, NE.

I'll say this about Cox. He has been less horrible at SEC than I expected he'd be. But he's still a partisan hack.

Update 2: Michael Mukasey wrote this op-ed for the WSJ just after the Padilla verdict. It's behind the firewall, but here are some highlights. Mukasey of course doesn't mention the elephant in the torture chamber--that torture is one of the things that makes evidence inadmissible at trial.

The material witness statute has its perils. Because the law does not authorize investigative detention, the government had only a limited time in which to let Padilla testify, prosecute him or let him go. As that limited time drew to a close, the government changed course. It withdrew the grand jury subpoena that had triggered his designation as a material witness, designated Padilla instead as an unlawful combatant, and transferred him to military custody.

The reason? Perhaps it was because the initial claim, that Padilla was involved in a dirty bomb plot, could not be proved with evidence admissible in an ordinary criminal trial. Perhaps it was because to try him in open court potentially would compromise sources and methods of intelligence gathering. Or perhaps it was because Padilla's apparent contact with higher-ups in al Qaeda made him more valuable as a potential intelligence source than as a defendant.

The government's quandary here was real. The evidence that brought Padilla to the government's attention may have been compelling, but inadmissible. Hearsay is the most obvious reason why that could be so; or the source may have been such that to disclose it in a criminal trial could harm the government's overall effort.

In fact, terrorism prosecutions in this country have unintentionally provided terrorists with a rich source of intelligence. For example, in the course of prosecuting Omar Abdel Rahman (the so-called "blind sheik") and others for their role in the 1993 World Trade Center bombing and other crimes, the government was compelled -- as it is in all cases that charge conspiracy -- to turn over a list of unindicted co-conspirators to the defendants.

That list included the name of Osama bin Laden. As was learned later, within 10 days a copy of that list reached bin Laden in Khartoum, letting him know that his connection to that case had been discovered. Again, during the trial of Ramzi Yousef, the mastermind of the 1993 World Trade Center bombing, an apparently innocuous bit of testimony in a public courtroom about delivery of a cell phone battery was enough to tip off terrorists still at large that one of their communication links had been compromised. That link, which in fact had been monitored by the government and had provided enormously valuable intelligence, was immediately shut down, and further information lost. [my emphasis]

Elsewhere, he notes that the Clinton Administration used extraordinary rendition, but not that BushCo had expanded the use of it.

Also, interestingly, Mukasey also refers to a Terwilliger plan to incapacitate dangerous people:

Mr. Terwilliger's more limited proposals address principally the need to incapacitate dangerous people, by using legal standards akin to those developed to handle civil commitment of the mentally ill.

But I guess with this op-ed Mukasey has signaled to the Bush Administration that he'll not make a big deal about torture, whatever else he's signaling.

Comments

[oldtree]

isn't Ted Bundy available?

[mainsailset]

I was thinking Victoria Toensing might be waiting in the wings.

[Neil]

What, no Bush Rangers or Pioneers left to reward? I hear Brownie is looking for a job in public service since his disaster recovery consultancy gig began springng leaks.

But seriosly, this the next AG has a big mess to cover-up cleanup.

[lizard]

FRED Thompson. He is everything they need: a former senator, he will be readily confirmable. A lawyer, AND he plays one on TV (appearance is everything with these idiots), he SEEMS qualified for the job, His presidential non-campaign is in tatters, and he is a complete and total lapdog, without a scintilla of backbone or integrity, as was evidenced by his shoddy Watergate performance when he was essentially an unpaid white house advisor. AND he might make the calculation that it is easier for him to get to be president if he is seen as a savior (cuz god knows he is failing as a competent avuncular nice-guy).

[Neil]

Did anyone else hear Rivkin on the The NewsHour yesterday? He was on in the "opposing view" segment discussing just how fucked-up and dysfunctional/not fucked-up not dysfunctional Gonzalez has left DOJ.

In this format, news people abdicate their responsibility to sort through fraudulent and specious claims and therefore give Rivkin and the mighty Wurlitzer equal access to spew their self-serving bullshit.

Isn't it odd the opposing view NEWS format is SO popular while at the same time Republicans are fighting tooth and nail to keep the Fairness Doctrine from being re-implemented.

Regardless or as my friend from Chicago (A'85) likes to say "irregardless" the truth has a funny way of finding its way into circulation. TtY EW.

[ceo]

Does George Terwilliger have a wife that is a mover and shaker?

[Redshift]

I think as many Democrats as possible should keep pushing for Comey. Not because there's a chance in hell that the Bushies will nominate him, but because anyone who's not a wingnut can agree that he's perfectly qualified, so the more we can make the Republicans talk about why they won't nominate him, the better.

[bmaz]

Man this is becoming a good question for speculation. They cannot make it to the finish line with Clement as Acting AG; but maybe they are going to try to piece some in house shenanigans together to get there. Say Clement for a while with some non-confirmable name from outside, who has no knowledge to impart in confirmation hearings, nominated and then more Acting AG time from someone else "in house" like Alice Fisher or something. I just find it hard to believe that Bush is going to install anyone as principled and independently strong as Terwilliger or Mukasey (and when I say principled and independent, I mean ONLY in relation to Gonzales, not that these two are particularly admirable on their own).

[jamesmroy]

How about Joe Lieberman? Then the Republican governor of Connecticut can fill Joe's Senate seat with the Republican of his choosing.

[Mary]

Putting up Olsen would open up and revisit the issue of Ashcroft, the program, Gonzales, why Gonzales was allowed to get away with his actions, etc. and I can't see the WH wanting to go down that path. Might even bring into play Philbin, who was responsible for him not getting the gig, etc. and some issues like what kind of info the Solic Gen office had about torture when Clement was in making his arguments to the S. Ct and what kind of due diligence was done before proferring those arguments on behalf of the US.

Ditto for that issue on Clement if anyone is actually doing their job. How could the torture memos, CIA black site prisons, GITMO abuse and the whole plethora have just "slipped through the cracks" with no one at the sol gen office having a clue that, when they were arguing that the US does not "do" torture or "things like" torture they were big ol liars? Who didn't check on things or who lied about things?

Also, Clement has been the one acting as Bush's personal lawyer in turning down legitimate Congressional document requests.

Terwilliger sounds one of their better shots - but the man was a "loyal Bushie" lawyer on one of the most egregious cases decided by the Sup Ct, Bush v. Gore. Is taht really a good idea.

Schumer knows that Larry Thompson directly and specifically signed off of the transport for Syrian torture of Maher Arar - how low has this country become that - with that sure and certain knowledge, Schumer thinks Thompson would be a good pick?

I guess if those are the names, Terwilliger may be the best of the list.

*sigh*

[emptywheel]

Mary

Know anything about Mukasey?

[emptywheel]

Redshift

Agree--that's a great approach. Not least because it'll keep the shredding of the Constitution in the forefront of discussion.

[monzie]

Lead editorial in today's Seattle Times on Slade Gorton as a promising, viable candidate for AG! Thoughts?

[Citizen92]

John Cornyn.

Mark my words.

Easily confirmable. Ready to keep secrets. Up for re-election in '08 against a well-heeled GOP'er. Another feather in the cap for a possible governor run.

[Josiah Bartlett]

One benefit of nominating Silberman is that it would get him out of his lifetime appointment to the appelate court.

Of course the danger of him as AG is also true.

[All-war Is Bad]

Mention of the "Military-Industrial Complex" as reason for the Iraq War and the atrocities being done for its survival seems tough for the MSM to digest. Thus I am putting this item in the blogs for all to see:
Whistleblowers on Fraud in Iraq Facing Penalties
http://www.forbes.com/feeds/ap/2007/08/24/ap4052736.html
Sorry if it not directly pertinent to this item. But you have got to read it!

[Mary]

Nothing beyond his rulings in the Padilla. Hopefully lhp will have some insight. I have to say, I am more sympathetic to his rulings in Padilla bc of overall circumstances at that the time (and he did also stand up to the suicide mission Cheney sent Clement on, another not real plus for Clement being that he went on that run at all - although IIRC Comey went with him or chimed in, didn't he?), but bc I don't know much about him at all, I'm can't offer anything other than my completely unreliable gut.

That is positive - that he would be a more decent and tougher, more independent, guy, than the others. But I wonder if his name isn't just popping out to appease Schumer some and it could be lhp has a lot more insight. If not, and if lhp doesn't say something to the contrary, then I would tend to think that he is so much a better choice than the others that his name doesn't make sense on the list.

fwiw - and gut based only.

BTW, have you seen the Wired article on the FBI surveillance systems? Greek (like the hacked Greek diplomats) to me, but you might find it interesting.

[emptywheel]

I'll let LHP weigh in in comments if she wants. But offline, she sent me to the op-ed that I've added in an update.

[Mary]

I do not have, nor want, a Comey Club card. I think that someone like him would be awful. He knowingly handed over Padilla for blackhole abuse, held the Padilla presser that put the things Nifong did to shame, white washed the Higazy confessions and engaged in the coverup as "state secrets" of the DOJ's role in Arar's torture.

He sold and oversold the Patriot Act and kept mum during the Gonzales nominations - of course, he had a very nice slot lined up at Lockheed, which was dependent on Congress/President for some big upcoming contracts, so I'm certain it is just coincidental that he suddenly became chatty when Congress shifted hands and suddenly Lockheed could benefit from playing ball with Dems (Dems who might likely end up running the WH for at least 4 years too). For all the credit he got on Fitzgerald, what he actually managed to do was derail the calls for a truly independent Spec Pros who would have a broad mandate and who would be allwed and possibly even required to provide info to Congress and who would be covered by regulations that required the AG to make disclosures and reports to Congress if the AG interfered with the investigation. We got none of that. If, for example, McNulty called back Fitzgerald's authorization vis a vis Rove or refused to allow Fitzgerald to proceed on Rove, you wouldn't know. Because of how Comey set up the in-house investigation.

I'm not that sure that the WH wouldn't take Comey - after all, there's nothing they truly wanted they didn't get from him and it would look so like they were making a big concession.

Let's take the guy who is willing to cover up war crimes and torture act violations as state secrets, cover up and continue and keep hidden for years an easvesdropping program that massively violates law and that two FISA Chief Judges had said were so bad they wanted their courts completely insulated from them. A guy who has never said one word about the atrocity that is GITMO and which his buds - Goldsmith and Haynes, helped establish and people, via policy, with human trafficking victims.

He was willing to go to bat hard to put Haynes on the Fourth Circuit and was unconcerned about the "truthiness" of Hayne's testimony before the SJC. I would be very sad to see someone like that get the nominationt to the top justice spot in the country, but then again, the "top justice" spot, after what all the loyal Bushies who have trotted through Main Justice and USA halls have done, isn't really the spot it used to be, is it? Maybe he is a good guy for the kind of slot it really is, now.

If you want an Impossible Dream cause - someone like a Bruce Fein is qualified and actually has boundaries that aren't the shifting sands of personal friendship and political payoff.

All jmo.

[Mary]

Nothing in that Mukasey op ed excerpted (I'll have to read the whole thing) really puts me off that much. We do have a big set of issues and we do need to put into place some competent mechanisms to deal with those issues and we do have hard choices while Republicans and Hillary dilly and dally over who can best make the wrong and immoral choices, without really digging in, rolling up shirtsleeves, and addressing the issues with better mechanisms. What Mukasey did was try to pick from column A and column B and try to address the real issues of danger with the insufficient mechanisms and provide a stopgap measure. It wasn't a great stopgap, I don't agree with what he did, but my goodness - - he did LOTS more to protect some semblance of rights and order than someone like Comey, who was in court advocating against Padilla even getting a lawyer. Again, jmo, fwiw. Dead horse/stop beating.

[Jodi]

Wheels within wheels.

Diversion after diversions.

It keeps all the frenetic people, and you know who you are, from being able to focus on the important things like Bush and this travesty they call Iraq.

[casual observer]

I still think William Barr has a shot.

[marksb]

Thanks for the Wired tip, Mary. Couple of comments...
The surveillance system, called DCSNet, for Digital Collection System Network, connects FBI wiretapping rooms to switches controlled by traditional land-line operators, internet-telephony providers and cellular companies. It is far more intricately woven into the nation's telecom infrastructure than observers suspected.
This is not really a surprise, since ALL traffic, no matter what the form, is sent through the backbone optical network as IP packets or ATM cells, and all of that traffic can be "split" off the backbone without altering the signal at all. Just unwrap the packets and cells and analyse to your heart's content.
So any form of communication we use can (and probably will) be intercepted.
Then the FBI (and contractors) have a series of analysis systems, probably cluster computers, to break down the traffic by specific criteria.
It's pretty much what we've been speculating for the last year +, and it's actually pretty slick, from a systems point of view---as long as you don't get all hung up on privacy and the constitution and such...
I think the important take-away is the complete assumption that all your communications belong to us now. Every switch on every carrier is tapped and routing all traffic to the FBI "central monitoring plants". Comforting, isn't it.

[marksb]

Gosh I'm feeling frenetic today.
Must be the refreshing beverage I just downed.
More coffee, my dear?

[DefendOurConstitution]

I think Larry Craig has clearly demonstrated his qualifications for AG:

1. Is not gay.

2. Has a Wide Stance.

3. Supports Romney (even if feelings are not reciprocated).

4. Is willing to do anything for his Daddy.

5. And, did I mention, he's not gay!

Larry Craig's the man. I can't believe no one's floting him.