The Blue State

Legally speaking, Libby cannot be pardoned by Bush

It would be against the law for President Bush to pardon Scooter Libby -- maybe all the more reason to suspect that he will.  All jokes aside though, the latest issue of Newsweek explains why, legally speaking, Bush can have no say in Libby's destiny:

Vice President Dick Cheney’s former chief ofstaff does not qualify to even be considered for a presidential pardonunder Justice Department guidelines.

...Those regulations, which are discussed on the Justice Department Web site at www.usdoj.gov/pardon,would seem to make a Libby pardon a nonstarter in George W. Bush’sWhite House. They “require a petitioner to wait a period of at leastfive years after conviction or release from confinement (whichever islater) before filing a pardon application,”  according to the JusticeWeb site.

Still, Bush could issue an Executive Order that would overturn this Justice Department policy.

Libby won't see a day of federal prison

Sorry for the pessimism.  It's only reality though -- at least until we get a new president.

Scooter Libby was convicted on four of the five counts, meaning he could get up to 20 years in prison.  But don't count on it.  Instead, Cheney's former Chief of Staff will likely get a reduced sentence -- which could work out to between one and a half and three years of jail time.  But again, don't count on it.

Even though Libby is a guilty man, a few things are about to happen.  Libby's lawyer, Theodore Wells, is asking for a new trial.  Although he may not ultimately get his wish, according to the Wall Street Journal, Libby's legal team is expected to delay the sentencing process as long as possible -- even past November of 2008.  And remember, before this President leaves office, one final round of executive pardons will be handed out.  Even if Libby is sentenced in the waining hours of the Bush presidency, expect this commander-in-chief to get one last laugh at the expense of Joe Wilson, Valerie Plame and our rule of law.

What the title says is true: Scooter Libby will not see a day of federal prison.  This President is above the law.  He has been above the law ever since his daddy's friends won him a White House vacation in court.  It is only fitting that this President would ride off into the sunset in 2009 in that same fashion.

Patrick Fitzgerald stared a giant in the face and, with the public by his side, refused to back down.  But if the Administration can get away with firing eight federal prosecutors with the snap of the hand, then they can sure ignore one as well.

White House behind prosecutor firings

The further you dig, the more twisted this story gets.  Over the last few months, eight federal prosecutors were fired by the Justice Department -- something they are allowed to do.  However, six of the eight prosecutors had positive performance records.  A loophole in the Patriot Act allows the U.S. Attorney General to appoint new prosecutors without having them be subjected to the Senate confirmation process.  For some time, critics have been suggesting that the Administration wants to award some of its supporters before the end of Bush's second term -- a patronage system if you will.  But until this morning, there was no proof that the White House had a hand in it.

Now, according to sources that spoke to the Washington Post, it turns out that the White House played a role in seven of the eight firings:

The White House approved the firings of seven U.S. attorneys late lastyear after senior Justice Department officials identified theprosecutors they believed were not doing enough to carry out PresidentBush's policies on immigration, firearms and other issues, White Houseand Justice Department officials said yesterday.

Bottom line: we have a few things going on here:

• The White House is micromanaging the Justice Department.
• Federal prosecutors are being fired because they do not subscribe to President Bush's conservative ideology.
• If the White House has control over who can be fired, they certainly can impact which attorneys are be nominated.
• If President Bush wanted anyone -- let's say Ted Nugent -- to be nominated, it could happen because under the Patriot Act loophole the Senate now has no say in the confirmation process of replaced federal prosecutors.

Earlier in the week, the House Judiciary Committee issued subpoenas in preparation for an investigation into this matter.

Prosecutors fired by Justice Dept had positive performance ratings

This is just the latest twist to the Bush Administration's most-recent Executive Branch power grab.  As we recall, six federal prosecutors that had once investigated public officials were recently asked by the Justice Department to resign, and replaced with new Bush-friendly appointees.  In one case, a federal prosecutor in Tennessee that was forced out was replaced by a former aide to Karl Rove.  A loophole in the Patriot Act allows Attorney General Alberto Gonzales to appoint new prosecutors without Senate confirmation.

The Justice Department claims they had good reason to force the six prosecutors out.  But McClatchy Newspapers is reporting that five of the ousted prosecutors had received positive job evaluations:

Performance reviews of U.S. attorneys are conducted every three tofour years by a team of experienced Justice Department officials, whointerview judges, staff members, community leaders and federal agents.In some of the five cases, the reviewers made recommendations forimprovements, but overall their assessments were positive, JusticeDepartment officials said.

For instance, Daniel Bogden, the U.S. attorney in Nevada, wasdescribed in his last job performance evaluation in 2003 as being a"capable" leader who was highly regarded by the federal judiciary andinvestigators.

"He didn't get any dings," said a Justice Department officialwith knowledge of the review. "The overall evaluation was verypositive."

David Iglesias, the U.S. attorney in New Mexico, also receiveda positive evaluation last year, according to another JusticeDepartment official.

Both officials asked not to be identified because they weren't authorized by the Justice Department to release the information.

The other U.S. attorneys who received good reviews were JohnMcKay, the former U.S. attorney in Seattle; Paul Charlton, the formerU.S. attorney in Arizona; and Carol Lam, the current U.S. attorney inSan Diego.

These anonymous Justice Department officials gave McClatchy this information likely because they knew that Gonzales had no valid reason to give five of the six prosecutors the ax.  Where is Congress on this?

Consolidating power one tactic at a time

From mass firings at the Justice Department to newly-found loopholes in the Patriot Act, the Congress is for some reason asleep at the wheel during this Executive power grab.

Most recently, as reported this morning in the New York Times, President Bush signed an Executive Order that "gives the White House muchgreater control over the rules and policy statements" on "public health, safety, the environment,civil rights and privacy."

This comes on the heels of all the recent firings by the Justice Department.  Within the last few months, Alberto Gonzales' Justice Department started firing federal prosecutors in mass.  We cannot be certain as to exactly how many have been fired.  But there were least six -- each of them with something in common: they investigated public officials for allegedly being involved in government corruption.  Republican lawmakers, such as John Ensign (R-NV), lazily refused to question Gonzales about it.  Democrats, like Dianne Feinstein (D-CA), chose to speak up during a recent Senate Judiciary Committee hearing.  The night before, she gave a fiery speech on the Senate floor about this misuse of Executive power.

Interestingly, within the last few days, word circulated that a large quantity of new federal prosecutors have been hired by the Bush Administration.  Because of an obscure loophole in the Patriot Act, Gonzales can hand-pick each nominee -- none of which have to be confirmed by the Senate.  The nine new prosecutors that have been appointed by Gonzales just so happen to be loyalists from President Bush's inner circle.

This amounts to nothing more than a reckless consolidation of power by the Executive Branch.  It happens because lawmakers and their staffers do not read bills carefully enough to notice secret provisions like the kind Gonzales is now using to personally appoint new Bush-friendly prosecutors.

In the coming weeks, Democrats may have to compromise on the minimum wage bill by allowing a line item veto amendment -- another example of how Congress is losing this battle.

Long summary short, the Democrat Democratic majority needs to stand up tall and use its muscle to stop allowing the Bush-Cheney Administration to wrestle power away from the Legislative Branch.  So far, they have sent the message to the White House that it is okay to consolidate power like this without any Congressional investigation.  John Conyers and Pat Leahy, who head the Judiciary Committees in either chamber of Congress, are for some reason missing in action.

Where is the Congress on this?  Please email your House Rep and your two Senators.  Tell them to investigate these new Justice Department appointments, and to show some spine by investigating each misuse of Executive power.

New line-item veto legislation is still unconstitutional

Today, the Senate will vote on whether Judd Gregg's line item-veto amendment will be attached to the minimum wage bill.  Here is an explanation of how the line-item veto legislation is different than the one in 1996, and why it is still unconstitutional.

In 1996, Congress passed line-item veto legislation, only to have it declared unconstitutional by the Supreme Court.  For those that are not familiar with what line-item veto means, it allows the President to pick and choose certain sections within a bill to veto without vetoing the entire bill at-large.  The Supreme Court declared it unconstitutional because the President would have been granted power of the purse, even though purse power is supposed to be the responsibility of the Legislative Branch.

Senator Judd Gregg (R-NH), the sponsor of the newest line item veto bill, claims his legislation is constitutional.  It would work a little differently than the last one, as the AP explains:

At issue is a watered-down GOP measure that would allow a president toscrutinize spending bills he signs into law for questionable items andthen submit cuts, or rescissions, to Congress for a vote. Unlike thecurrent system, Congress couldn't simply ignore the cuts — if bothHouses voted to approve them, they'd go into effect.

In other words, if Gregg's bill became law, the President could say, "I don't like section X of this bill.  Therefore, I want Congress to vote on that section, and only that section."  Only if Congress approved the section by a majority vote would the the line-item veto be overridden. 

But if you would bare with me for this explanation, this bill is still unconstitutional.  Remember, in Article I, Section 7 of the U.S. Constitution, it says that all vetoes can only be overridden by a two-thirds majority.  Gregg's bill amends the constitution to allow the President to veto part of the bill, and send that part back to Congress where it only needs to be approved by a majority vote -- not a two-thirds vote.  This bill tries to re-write the constitution.

Read Article I, Section 7 of the Constitution for yourself, and you be the judge:

Every Bill which shall have passed the House of Representatives and theSenate, shall, before it become a Law, be presented to the President ofthe United States; If he approve he shall sign it, but if not he shallreturn it, with his Objections to that House in which it shall haveoriginated, who shall enter the Objections at large on their Journal,and proceed to reconsider it. If after such Reconsideration two thirdsof that House shall agree to pass the Bill, it shall be sent, togetherwith the Objections, to the other House, by which it shall likewise bereconsidered, and if approved by two thirds of that House, it shallbecome a Law.

Senator Robert Byrd (D-WV) is strongly opposed to Gregg's line item veto bill, and explained why:

"A Legislative Line-Item Veto effectively creates a third option for the president.  It adds a new dimension to Executive power -- one not found in the Constitution.  Instead of vetoing and returning a whole bill to the Congress before it becomes law, under the Gregg amendment, the president can resubmit only those provisions he opposes, and do so after a bill becomes law.  The president can sign a bill into law, and then strip it of the provisions he does not like.  Instead of the president weighing-in before a bill becomes law, he can ignore the pros and cons of debate and wait until well after it has become law.  He can literally ignore both public opinion and Congressional debate and deliberation.  He can pull out anything he does not like from legislation passed by both Houses of Congress, and insist on a second run through the legislative process."

This is a significant piece of legislation.  Since the Republicans want this bill to go through at all cost, it comes as little surprise that they are trying to attach it to some larger bill to conceal it from the public.

Please email your two Senators and tell them to reject Judd Gregg's line item veto amendment to the minimum wage bill.  Keep in mind that the Supreme Court might not strike it down this time.  So this could very well be our last chance to mount an opposition to unlimited Executive power.

 

The lamest of lame ducks

In the end, Cheney's career-long effort to increase executive power has ended with a Democratic Party revolution.

The Halloween Massacre was one of the most foreshadowing moments in American politics over the last half-century.  It was a cabinet shake-up that happened on November 4, 1975, in which President Gerald Ford named Dick Cheney as White House Chief of Staff and Donald Rumsfeld as Secretary of Defense.  As one of Ford's advocates, Cheney spent his entire experience as Chief of Staff battling to restore the executive power that had been minimized in reaction to the Watergate scandal.  The political mess that forced Nixon to resign left the next administration powerless.

Cheney brought that same obsession about executive power back to the White House two decades later when he became Vice President under George W. Bush.  Measures such as the Patriot Act and the Military Commissions Act were at the heart of what Cheney had been trying to do all these years: restore executive privilege over Congress and the courts.

But as a result of the Administration's failed Iraq war, endless Congressional investigations and the overthrow of the Republican majority two months ago, Cheney's dream of a unitary government has been turned on its head.  President Bush is one of the weakest lame duck presidents in modern history.

Craig Crawford of Congressional Quarterly puts it best:

There was something almost sad about Bush putting his own name on anop-ed piece in The Wall Street Journal that laid out his legislativeagenda on the eve of the formal Democratic takeover of Capitol Hill.Clearly gone are the days when Vice President

Dick Cheney

could use a private meeting with Republican lawmakers to set thecongressional priorities list. Now, it seems, the president ispositioning himself as just another spectator on the outskirts of power— firing off letters to the editor. Perhaps he should start his ownblog.

This Administration is ailing.  If they think that they can overcome two years worth of investigations without a scratch, then they are in for a reality check.  Cheney's obsessive desire to increase executive power has resulted in $400,000,000,000 spent in Iraq, more than 3,000 dead soldiers, a CIA leak scandal and an angry citizenry.  For the Vice President's executive power goals over the last three decades, it has been anything but 'mission accomplished.'

GOP Congress gave feds authority to open all U.S. mail without warrant

Signed before Christmas, the Postal Accountability and Enhancement Act gives the government first class access to your private information.

Many of the most vocal critics of the Military Commissions Act were outraged not just because it broke international law, but by how the bill could be used as precedent to slowly chip away at the privacy rights of American citizens.  Instead of Dick Cheney and other advocates of unrestrained executive privilege throwing the hail-Mary pass and instituting martial law, it might be smarter for them to dismantle the constitution slowly, piece by piece -- that way, less people would notice.  The Military Commissions Act allows the government to suspend habeas corpus for any prisoner listed as an "unlawful enemy combatant."  This includes American citizens.  This was only the first part in the Administration's ongoing effort to use national security as an excuse to curb civil liberties.

Now here comes part two.  The White House said late-Thursday that the federal government has the right to open U.S. mail without a search warrant:

A signing statement attached to postal legislation by President Bushlast month may have opened the way for the government to open mailwithout a warrant.

The White House denies any change in policy.

The law requires government agents to get warrants to open first-class letters.

But when he signed the postal reform act, Bush added a statement sayingthat his administration would construe that provision “in a mannerconsistent, to the maximum extent permissible, with the need to conductsearches in exigent circumstances.”

The legislation was sponsored by Senator Susan Collins (R-ME).

According to the 4th Amendment in the Bill of Rights, the government cannot invade privacy in this manner:

The right of the people to be secure in their persons, houses, papers, andeffects, against unreasonable searches and seizures, shall not be violated,and no Warrants shall issue, but upon probable cause, supported by Oath oraffirmation, and particularly describing the place to be searched, and thepersons or things to be seized.

The bill was signed into law just before Christmas.  It is called the Postal Accountability and Enhancement Act (H.R. 6407).

If you believe this bill puts your civil liberties, or the civil liberties of those around you, at risk, please take action:

• Email your U.S. House Representative
• Email your Senators and tell them to sponsor legislation that repeals this bill.
• Email the American Civil Liberties Union and urge them to challenge this in court.

Specter's bill allows unrestrained spying power each time Congress declares war

Arlen Specter's compromise with Dick Cheney on warrantless domestic wiretaps is really not a compromise at all.  It would completely amend the 1978 Foreign Surveillance Act, which until now indicates that a warrant from the FISA court is needed before spying on Americans in this country for terrorist reasons.

But the bill before Congress, S.2453, would give President Bush and Attorney General Alberto Gonzales unrestrained wiretap power for 45 days each time that the Congress declares war.  Read this part of the bill:

Sec. 706. EMERGENCY AUTHORIZATION
`Notwithstanding any other provision of law, the President, through theAttorney General, may authorize electronic surveillance without a courtorder under this title to, acquire foreign intelligence information fora period not to exceed 45 days following a declaration of war byCongress.'.

To add even more power, the President does not have to consult members of Congress any more than once every six months on the issue of electronic surveillance:

`(1) IN GENERAL- In addition to any reports required under subsection(a), the President shall, not later than 6 months after the date ofenactment of this Act and every 6 months thereafter, fully inform eachmember of the congressional intelligence committees (or anysubcommittee thereof designated for oversight of electronicsurveillance programs under this title) on all electronic surveillanceconducted under the electronic surveillance program.

What is going on here?  Why is no one else talking about this?
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Other sites blogging about this issue: Orinkerr, Blatch, Pennsylvania Criminal Defense, William K. Wolfrum, Cut to the Chase, Madness Counseling, Out of the Mountains.

Dem Report: Constitution in Crisis

I highly encourage all of you to read as much as you can from the new report "A Constitution in Crisis."  The Democratic members of the House Judiciary Committee, who will be spearheading the effort to hold the President accountable if we succeed in taking back the House this November, have finalized a report detailing 26 instances where the White House broke the law.

Thank John Conyers, the House Judiciary Committee's ranking Democrat, for having the guts to publish something like this.

Click to read the report.
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Other sites blogging about this issue: Bucks Blog, Victoria Kos, Liberty Street, Left Word, My Turn, Alternate Brain, The Blog Brief.