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July 09, 2007


"Constitution! What Constitution? We don't need no stinking Constitution?"

Starpacker Pat Leahy and his posse need to saddle and ride. Georgie the Kid, Black Dick, and Fast Fred have rustled one too many subpeonas. The Law is Coming.

I've sent this to Feinstein, saying they shouldn't let Bush get away with claiming executive privilege in this.

"the history of this scandal proves itself proves Clement and Field's claim to be false..." Lovely. Just lovely. And this gives us all a good hook to hang our hats on as the White House pursues this particular avenue of obfuscation. By the way, where are you today? Does Walton have a hearing scheduled or is it simply that filings re: the commutation are due? As always, huge thanks...

Just got done firing off letters to my "Reps" - Phil English and "wishy-washy" Arlon Spector requesting that they publically support impeachment. I gently but sternly reminded them that their oath of office requires them to protect the Constitution. Otherwise, they are as complicite as the "Shrub".

Probably won't do much good, but keep trying.

This is the discussion I have been wanting to have. We need to have it. What are our options. What are the possible strategies and the pros and cons to each. I want constitutional lawyers in on the discussion. I want the discussion to be presented in an "as if" scenario without putting blame. (it will be obvious). Hopefully the discussion will finally get to the heart of the matter in a debate that has been highly esoteric and devoid of "american participation".

You are always right on it.

It is really crucial to understand that none of these firings would have been an issue except for the change to the appointment process snuck in by the PATRIOT Act. Firing these USAs and having US District Judges appoint interim USAs (prior practice) would not have accomplished Rove/Sampson/McNulty's goals. Specter (Justice Comittee Chairman at the time) claims to have no knowledge. How that change happened will lead to many great truths.

There is another, larger issue here. The Dept of Justice is just that--the Dept of Justice. As such, there is a larger public interest in preserving not only the appearance, but the reality of impartial justice that trumps the president's personal (or even institutional) interest in preserving his appointment power as free from restraint as possible. In fact, this scandal shows the inherent danger of arguing for an unfettered appointment power precisely because of the perversion of justice that can result.

Beyond that, it is clear that Congress can control the manner of the appointment of inferior officers such as USAs. They may serve "at the President's pleasure" but they serve the people, not him personally. The quarrel was supposed to be that it was wrong for judges to be appointing USAs because they were part of the judicial branch. But that is wrong too. The Constitution, in Article 2, sec 2, provides that the President has the power to make treaties, with Senate consent,

and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.
(Emphasis added). The "By the President alone" exempts those inferior offices from needing Senate confirmation. USAs aren't in that category.

"This whole scandal started when BushCo had Brett Tolman sneak a provision into the PATRIOT Act to take appointment power away from judges and give it to the AG.


Marcy, I've asked this in a dozen places, yet no one seems to get the gist of my question, and I think it is an essential factor that is for some reason, being ignored, or worse, covered-up.

I think this represents one of those "unspoken laws" that people like Rove are ever-willing to break,, no one would honestly change a law after a debate on it, without notifying the legislators, it would only be done dis-honestly, and that is why we might actually need to create a law to counter these lawless loopholers.

But my question stands;
...is there already a law on the books that prohibits tinkering with a bill after it has been debated, to assure that lawmakers are actually passing the bill they debated?

I can't seem to find anyone who can answer that question.

"and by and with the advice and consent of the Senate,"

In this age of democratic cataclysm, the operative word here should have been "consent" ...and that consent should have been denied...

The Constututional Crisis we have all suffered since Bush V. Gore is in its final throes.

OfT From looseheadprop at FDL "Impeachment Inquiry"

Fred Fielding (as quoted by Emptywheel): "In the present setting, where the President's authority to appoint and remove U.S. Attorneys is at stake, the institutional interest of the Executive Branch is very strong."

Something else bothers me about this statement:

Shouldn't 'the Preseident's authority to appoint' actually be 'authority to *nominate*'?

Maybe I'm making too fine a distinction here. But an appointment can take place without the advice and consent of the Senate. Yet the position of US Attorney is one in which the Congress has required the President to *nominate* someone for the position, subject to the consent of the Senate.

Anyway, even if Fielding's use of the word 'appoint' here is correct, it's still a misleadingly strong claim given that the appointment is subject to the Senate's consent.

Don't expect anything of use from Specter. He's in the "no underlying crime" faction of the "Libby shouldn't suffer because he had to lie to the grand jury and the FBI" camp, so you can see that he's quite happy to ignore the facts when it suits his masters' purposes.

Don't expect anything of use from Specter. He's in the "no underlying crime" faction of the "Libby shouldn't suffer because he had to lie to the grand jury and the FBI" camp, so you can see that he's quite happy to ignore the facts when it suits his masters' purposes.

The Constitution and statutes allow the President to delegate the appointment or nomination of US Attorneys. "Appointment" in the case of "interim" appointments not requiring Senate confirmation, via the change to Patriot [sic] Act II (since repealed). "Nomination" via the authority the Constitution explicitly grants Congress to provide for non-Presidential means of nomination and in certain circumstances to dispense with the Senate confirmation process.

But I haven't found yet where the authority to fire a US Attorney has been delegated, which would mean that Bush had to be directly involved in the AttorneyGate process, at least at the end, by authorizing the recommendations that Rove's team and Miers fed Sampson to feed to Gonzales to feed to Miers to feed to Cheney to feed to Bush, who used the pen.

The administration claims Bush wasn't involved. Apart from being a truism, that seems to create a break in the necessary authority to fire the US Attorneys. Assuming that Bush did authorize the firings, direct discussions with him might be privileged, deliberative discussions involving only others before the decision took place might be privileged. But under US v. Nixon, both could fall in the context of a criminal investigation.

This is an interesting post and raises several good points that I think should be a bigger part of the public discussion on Purgegate. Sometimes the proper response, or refutation point, is so blindingly obvious you drive right by it. This is one of those times. The Administration line/whine has consistently been "the USAs serve at the pleasure of the President" and "The President has unfettered discretion as to USAs". Well, in a word, NO. The USAs also serve at the pleasure of the people because they do not formally ascend to office without the will of the people through their elected representatives in the form of Senate consent. They also serve at the pleasure of the people in that a USA can be removed by impeachment action taken by their elected representatives. On a different, but inherently related, note, the Administration is NOT really concerned about maintaining the subject of USAs as the complete domain of the President himself or keeping the issue within "the Executive" for purposes of privilege. In fact, it was this very Administration that secretly attempted to have the Executive's/President's authority in this regard diluted and shared by empowerment of the Attorney General (who had, in turn, secretly delegated his authority to wet behind the ears rubes from Regent). These are not exactly earth shattering points, but really do illustrate how this Administration is not just talking out of both sides of their mouths, they are lying out of both sides of their mouths.

I am not a lawyer, but I have studied the issue extensively. The key words in the clause you point out are "inferior officers." Are U.S. Attorneys "inferior officers" under the Constitution, or are they "officers of the United States." It makes all the difference in the world. Think of the Executive branch as being divided into essentially three categories of people (besides the President himself, and the "Fourth Branch" Vice President): "principal" officers (Department heads, and high-level government officers), inferior officers, and employees.

Principal officers are covered by the "all other officers of the United States" phrase in the first part of Article II, Section 2, second paragraph, and so are under the President's power to "nominate, and by and with the advice and consent of the Senate, ... appoint ... all other officers of the United States ...." The second part of that clause only gives Congress power to delegate appointment power over inferior officers, which would otherwise be vested in the President, by and with the advice and consent of the Senate, to the President alone (without advice and consent), to the courts, or to department heads. So, under the Constitution, Congress may decide that inferior officers still have to go through the full "advice and consent" nomination and appointment process, or can grant that power to the President alone (or to the courts or department heads alone). They can't delegate that power for principal officers, though.

The above is based on Supreme Court precedents. The Supreme Court defined officers as "any appointee exercising significant authority pursuant to the laws of the United States." Buckley v. Valeo, 424 U.S. 1, 126 (1976). So far, the Court hasn't spelled out precisely the difference between principal and inferior officers, but it has provided some guidance. In Morrison v. Olsen, 487 U.S. 654 (1988), the Supreme Court held that an independent counsel was an "inferior officer" because she was subject to removal by the Attorney General, was empowered to perform only certain limited duties, had limited jurisdiction, and was occupying a temporary position or appointment. The Court further specified in Edmond v. United States, 520 U.S. 651 (1997), that, "Generally speaking, 'inferior officers' are officers whose work is directed and supervised at some level by others who were appointed by Presidential nomination with the Senate's advice and consent."

So, which are U.S. Attorneys? If they are principal officers, which they certainly seem like, then it is unconstitutional for Congress to delegate appointment power to the Attorney General, and the PATRIOT Act appointment provision is invalid. If they are "inferior officers" then Congress can restrict the President's power to remove them, as Congress did in the situation that led to Morrison v. Olsen. Now, it is true that Congress has not, to date, limited the removal power of the President or AG over U.S. Attorneys, but that doesn't mean that Congress couldn't, and in fact they could if U.S. Attorneys are inferior officers.

For what it's worth, my opinion is that U.S. Attorneys are principal officers and therefor do "serve at the pleasure of the President," but as such their replacements must be confirmed by the Senate (and the PATRIOT Act provision giving the AG appointment power over vacant U.S. Attorney positions is unconstitutional).


THere is an abundance of evidence to say they're inferior officers--much of which came out in the Plame trial.

As I pointed out, precisely the fact that Congress passed PATRIOT II with its AG provision in it shows that no one--not the WH, not Congress, not DOJ, not the judges who used to appoint interims--doubted that USAs are inferior officers.

EW - the evidence that came out in Plame dealt with appointments of special prosecutors, which is different than appointments of US Attys.

There has been some lower court case law on INTERIM appointments of USAs as inferior officers. But most of what applied - especially on the hire/fire front - to Fitzgerald as a Special Prosecutor under the AG's authority is different than what applies to Fitzgerald as a US Atty.

As a US Atty - the AG can NOT fire Fitzgerald, while as a Spec. Pros appointed by the (acting) AG, he can be fired by that dept head.

Whether USAs are inferior or not - which is not a clear issue despite the lower court case law re: interim USAs, Constitutionally Congress has NOT delegated the ability to appoint and fire a USA to anyone but the President. Indeed, by statute they have specifically PREVENTED anyone except the PResident from having removal rights.

This was something I tried to point out awhile back here:

That is the 64K question set that still has never been asked by anyone. Lots of peopole, Specter included, made some early comments about the AG having the ability to remove USAs, but he absolutely does NOT have that power. So when are they going to start reconciling the fact that ONLY Bush could remove, with the fact that Bush said he didn't know anything about the removals?

He either lied, or Gonzales' crew illegally removed the USAs. Esp with Clement staking out the territory he is, this needs to be nailed down by the SJC. It also ties to another point I tried to make earlier when the Gonzales order and OLC memo came out. The OLC memo talks about looking at the delegability issue for both the PRESIDENT and the AG IIRC, and yet no one asked about why they were looking at that issue for the President's powers. HOwever, in other places my question has been - - - if Bush delegated to Gonzales, the way Gonzales delegated to MoniKyle, then were are the requirements of the OLC memo met for that delegation? Where was the order, the specific list, and the sign off of the firings being done in the President's name?

Nowhere to date. Everyone has been so busy playing pin the tail on Alberto that they forget the big Ass in the Oval office.

Bush is the only one who could remove. No one is producing anything to demonstrate that Bush specifically authorized the firings despite his claims he didn't know anything about anything (which sound suspiciously like the claims of someone who knew something obstructive was going on and didn't want to be holding the bag). Once he got back from his trip and Fielding briefed him, suddenly Bush's tune changed to "serve at the pleasure of the President" still without saying that HE HIMSELF FIRED THEM. Kind of like Iraq - 9/11. He implies that he authorized the firings while never disavowing his previous statemetns that he had nothing to do with them.

Both of those can't be right and the procedures that OLC laid out for Gonzales with respect to Monikyle are procedures they imply (and Clement seems to beleive) are REQUIRED where there is a non-delegable power.

So one of Clement's real problems is that the President himself has publically said he didn't know anything about the firings. To claim privilege, he has to have been involved in those careful deliberations - so Clement needs to be asked - "was the President lying when he said he wasn't involved?"

Next up, Clement has to answer the question of how deliberations that involve obstruction are privileged (they aren't) and why in the context of a Congressional investigation of possible obstruction he thinks privilege attains anything. Then there's all the RNC server issues etc.


No, actually a lot of the discussion in the Plame case dealt with USAs--it was the starting point for a lot of those discussions.

But that's all moot here. As you point out, the appointment of interim USAs is delegable. But that's just what we're talking about here, particularly for Tim Griffin, which is the case where we know Miers and Taylor to be intimately involved, if not driving the bus. Just on the basis of Griffin (but also on Cardona), Congress has an ongoing Constitutional explicit legislative interest in the appointment of interim USAs.

I agree with everything else you say--that Clement may recognize they're in as much trouble on the firing side as the appointment side (particularly since, as we know, AGAG didn't authorize the Cummins firing and Griffin hiring officially until after the fact). All the more reason the Dems need to be pushing this hard. Even if Bush could use EP to protect potential crimes, he can't when it's an area that Congress has a legislative interest in, which is clearly the case here.

Perfect reason to impeach Gonzales. Ok, I might have mentioned this thought before......

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