Commentary Magazine


Topic: Department of Justice

Obama Tries to Put the Immigration Onus on GOP

While the ostensible purpose of President Obama’s speech at American University this morning on immigration reform was to put forward a realistic proposal, it was clear that his main intent was to try and put Republicans on the spot.

Calling, as he is fond of doing on every issue, for others to put aside politics, he specifically challenged the GOP to support his rather loosely defined plan that called for giving illegal immigrants a path to citizenship, an attempt to control the border as well as rationalizing the complex and largely unfair existing immigration statutes. He claimed that he was merely being forced to clean up the mess left behind by others since he “won’t just kick the can down the road” on this issue. Asserting that the Democrats are behind him, he said the whole question of reform would rest on whether Republicans would join him on the issue. It was only toward the end of the speech that he acknowledged in passing that his “predecessor” had “shown courage” on the issue. In fact, George W. Bush put forward a not dissimilar package of immigration reform in 2005.

It’s no secret that the chances of passage of any such bill in the current Congress are less than nil. Far from a stark partisan division on the issue, many Democrats have indulged in the same sort of “demagoguery” on immigration that Obama seemed to imply was limited to Republicans. In fact, had the Democrats in Congress been united and passionate advocates of this cause, President Bush would have succeeded in his attempt to do more or less what Obama says he wants to accomplish. It is a testament to Obama’s knowledge of this political reality that he did not spend much of his speech bashing the controversial Arizona law enabling law-enforcement personnel to inquire about the immigration status of a person already in trouble with the law. Nor did he follow Secretary of State Hillary Clinton’s lead when she recently told a South American journalist that Obama would order the Justice Department to sue Arizona to stop the measure’s enforcement. Indeed, the worst he said of the law was that it was “divisive.”

It is an unfortunate fact that many on the right have boxed themselves in on immigration to the point where any position on it other than a call for a draconian crackdown on illegals and mass deportation (which Obama rightly claims is unrealistic) is considered akin to amnesty. While the president attempted to pose somewhat disingenuously as the man between two extremes, by offering those here illegally a path to citizenship (preceded by paying a fine, waiting in line behind those who have applied via the legal apparatus, and learning English), he is unlikely to get much support from many conservatives or moderates from either party. That’s a shame, since Obama’s proposals, like those of Bush before him, constitute nothing more than recognition of reality in terms of both law enforcement and the undeniable demand that exists here for low-wage foreign workers. While neither this Congress nor its successor is likely to pass such a bill, that does not mean that it shouldn’t.

But unlike Bush, who unveiled his immigration plan at the start of his second term hoping (in vain, as it turned out) to cash in some of his political capital on an issue he cared about, Obama’s purpose here seems to be about politics, not principle, as he is hoping that Hispanics will blame Republicans for the inevitable failure of this proposal. While this may ratchet up the Hispanic vote for the Democrats, it’s hard to see how this will work in a midterm election in which many Democrats around the country are just as likely to resent illegal immigrants as Republicans.

While the ostensible purpose of President Obama’s speech at American University this morning on immigration reform was to put forward a realistic proposal, it was clear that his main intent was to try and put Republicans on the spot.

Calling, as he is fond of doing on every issue, for others to put aside politics, he specifically challenged the GOP to support his rather loosely defined plan that called for giving illegal immigrants a path to citizenship, an attempt to control the border as well as rationalizing the complex and largely unfair existing immigration statutes. He claimed that he was merely being forced to clean up the mess left behind by others since he “won’t just kick the can down the road” on this issue. Asserting that the Democrats are behind him, he said the whole question of reform would rest on whether Republicans would join him on the issue. It was only toward the end of the speech that he acknowledged in passing that his “predecessor” had “shown courage” on the issue. In fact, George W. Bush put forward a not dissimilar package of immigration reform in 2005.

It’s no secret that the chances of passage of any such bill in the current Congress are less than nil. Far from a stark partisan division on the issue, many Democrats have indulged in the same sort of “demagoguery” on immigration that Obama seemed to imply was limited to Republicans. In fact, had the Democrats in Congress been united and passionate advocates of this cause, President Bush would have succeeded in his attempt to do more or less what Obama says he wants to accomplish. It is a testament to Obama’s knowledge of this political reality that he did not spend much of his speech bashing the controversial Arizona law enabling law-enforcement personnel to inquire about the immigration status of a person already in trouble with the law. Nor did he follow Secretary of State Hillary Clinton’s lead when she recently told a South American journalist that Obama would order the Justice Department to sue Arizona to stop the measure’s enforcement. Indeed, the worst he said of the law was that it was “divisive.”

It is an unfortunate fact that many on the right have boxed themselves in on immigration to the point where any position on it other than a call for a draconian crackdown on illegals and mass deportation (which Obama rightly claims is unrealistic) is considered akin to amnesty. While the president attempted to pose somewhat disingenuously as the man between two extremes, by offering those here illegally a path to citizenship (preceded by paying a fine, waiting in line behind those who have applied via the legal apparatus, and learning English), he is unlikely to get much support from many conservatives or moderates from either party. That’s a shame, since Obama’s proposals, like those of Bush before him, constitute nothing more than recognition of reality in terms of both law enforcement and the undeniable demand that exists here for low-wage foreign workers. While neither this Congress nor its successor is likely to pass such a bill, that does not mean that it shouldn’t.

But unlike Bush, who unveiled his immigration plan at the start of his second term hoping (in vain, as it turned out) to cash in some of his political capital on an issue he cared about, Obama’s purpose here seems to be about politics, not principle, as he is hoping that Hispanics will blame Republicans for the inevitable failure of this proposal. While this may ratchet up the Hispanic vote for the Democrats, it’s hard to see how this will work in a midterm election in which many Democrats around the country are just as likely to resent illegal immigrants as Republicans.

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Flotsam and Jetsam

Candid. Israeli Vice Prime Minister Moshe Yaalon’s interview should be read in full. A sample: “Yaalon said bluntly that he believes Iran’s regime is ‘not sure that there is a will’ on the part of the United States right now to exercise the military option against Iran’s nuclear facilities. … When asked if he felt the Obama administration was open to military action against Iran, Yaalon said that, according to the traditions of Israel’s forefathers, righteous people hope that the job might be done by others. On the other hand, he said, there is another old saying that goes like this: ‘If I’m not for myself, then who is for me?’ He added, ‘So we should be ready.’”

Intriguing. And the timing couldn’t be worse for him: “First it was President Barack Obama, then White House Chief of Staff, Rahm Emanuel, now U.S. Senate Candidate Alexi Giannoulias is joining the Rod Blagojevich corruption trial subpoena list.” His opponent pours salt in the wound: “[Rep. Mark] Kirk’s campaign said the development is part of a ‘troubling pattern’ with Giannoulias that includes regulators shutting down his family’s Chicago bank in April after it failed to raise new capital. ‘Now we’ve learned Giannoulias’ name has come up on federal wire taps talking about the Illinois Senate seat and he has been subpoenaed in former and disgraced Governor Rod Blagojevich’s public corruption trial. This revelation raises additional questions about Alexi Giannoulias that he needs to answer,’ Kirk spokeswoman Kirsten Kukowski said in a statement.”

Effective. Timothy Dalrymple dismantles the mischaracterizations by liberal Christians of the Tea Party movement, and includes this on taxation: “To resent a tax hike (or the prospect of one) is not to neglect the needy, and to wish to retain control over the funds one has secured in order to care for one’s family is not necessarily selfish. Conservatives generally are more generous with their giving than liberals, yet they resent it when a distant bureaucracy extracts their money in order to distribute public funds to the special interest groups on whose votes and donations they rely. Conservatives would prefer that care for the needy remain as local and personal as possible.”

Curious. Who are the 32% who view Eric Holder and Janet Napolitano favorably? “Forty-two percent (42%) regard the attorney general unfavorably, with 26% who have a Very Unfavorable opinion. One-in-four voters (26%) still don’t know enough about Holder to venture any kind of opinion of him. This marks a very slight worsening of the numbers for Holder from last August just after his announcement that the Justice Department was investigating how the Bush administration treated imprisoned terrorists.”

Explosive. A Justice Department trial team lawyer goes public: “Based on my firsthand experiences, I believe the dismissal of the Black Panther case was motivated by a lawless hostility toward equal enforcement of the law. Others still within the department share my assessment. The department abetted wrongdoers and abandoned law-abiding citizens victimized by the New Black Panthers. The dismissal raises serious questions about the department’s enforcement neutrality in upcoming midterm elections and the subsequent 2012 presidential election.”

Grouchy. The left is dismayed again: “On the eve of Elena Kagan’s Supreme Court confirmation hearings her record on race in the Clinton White House and at Harvard Law School is producing discomfort among some leading civil rights organizations, leaving them struggling to decide whether they want her to join the Supreme Court.”

Frightful. From an MIT professor: “The president should nominate Paul Krugman to replace Peter Orszag as director of the Office of Management and Budget (OMB).” Because the deficit plainly isn’t big enough, and we’ve been too miserly in our spending.

Unfair? Maybe. Ezra Klein, who recommended Dave Weigel as a “conservative voice,” seems to have gotten away scot-free, while Weigel had to resign and his bosses had to scrape egg off their faces.

Candid. Israeli Vice Prime Minister Moshe Yaalon’s interview should be read in full. A sample: “Yaalon said bluntly that he believes Iran’s regime is ‘not sure that there is a will’ on the part of the United States right now to exercise the military option against Iran’s nuclear facilities. … When asked if he felt the Obama administration was open to military action against Iran, Yaalon said that, according to the traditions of Israel’s forefathers, righteous people hope that the job might be done by others. On the other hand, he said, there is another old saying that goes like this: ‘If I’m not for myself, then who is for me?’ He added, ‘So we should be ready.’”

Intriguing. And the timing couldn’t be worse for him: “First it was President Barack Obama, then White House Chief of Staff, Rahm Emanuel, now U.S. Senate Candidate Alexi Giannoulias is joining the Rod Blagojevich corruption trial subpoena list.” His opponent pours salt in the wound: “[Rep. Mark] Kirk’s campaign said the development is part of a ‘troubling pattern’ with Giannoulias that includes regulators shutting down his family’s Chicago bank in April after it failed to raise new capital. ‘Now we’ve learned Giannoulias’ name has come up on federal wire taps talking about the Illinois Senate seat and he has been subpoenaed in former and disgraced Governor Rod Blagojevich’s public corruption trial. This revelation raises additional questions about Alexi Giannoulias that he needs to answer,’ Kirk spokeswoman Kirsten Kukowski said in a statement.”

Effective. Timothy Dalrymple dismantles the mischaracterizations by liberal Christians of the Tea Party movement, and includes this on taxation: “To resent a tax hike (or the prospect of one) is not to neglect the needy, and to wish to retain control over the funds one has secured in order to care for one’s family is not necessarily selfish. Conservatives generally are more generous with their giving than liberals, yet they resent it when a distant bureaucracy extracts their money in order to distribute public funds to the special interest groups on whose votes and donations they rely. Conservatives would prefer that care for the needy remain as local and personal as possible.”

Curious. Who are the 32% who view Eric Holder and Janet Napolitano favorably? “Forty-two percent (42%) regard the attorney general unfavorably, with 26% who have a Very Unfavorable opinion. One-in-four voters (26%) still don’t know enough about Holder to venture any kind of opinion of him. This marks a very slight worsening of the numbers for Holder from last August just after his announcement that the Justice Department was investigating how the Bush administration treated imprisoned terrorists.”

Explosive. A Justice Department trial team lawyer goes public: “Based on my firsthand experiences, I believe the dismissal of the Black Panther case was motivated by a lawless hostility toward equal enforcement of the law. Others still within the department share my assessment. The department abetted wrongdoers and abandoned law-abiding citizens victimized by the New Black Panthers. The dismissal raises serious questions about the department’s enforcement neutrality in upcoming midterm elections and the subsequent 2012 presidential election.”

Grouchy. The left is dismayed again: “On the eve of Elena Kagan’s Supreme Court confirmation hearings her record on race in the Clinton White House and at Harvard Law School is producing discomfort among some leading civil rights organizations, leaving them struggling to decide whether they want her to join the Supreme Court.”

Frightful. From an MIT professor: “The president should nominate Paul Krugman to replace Peter Orszag as director of the Office of Management and Budget (OMB).” Because the deficit plainly isn’t big enough, and we’ve been too miserly in our spending.

Unfair? Maybe. Ezra Klein, who recommended Dave Weigel as a “conservative voice,” seems to have gotten away scot-free, while Weigel had to resign and his bosses had to scrape egg off their faces.

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Al-Qaeda Lawyer to Fill Top Justice Department Post

The Senate blocked the nomination of Dawn Johnsen, who holds extreme views on everything from abortion to detainee policy, to head the Justice Department’s Office of Legal Counsel. OLC is a key office that renders opinions on key constitutional issues for Justice and the entire government. Now word comes that an attorney who formerly represented al-Qaeda terrorists will fill the spot. The New York Times reports:

David J. Barron, the acting head of the Justice Department’s powerful Office of Legal Counsel, will step down next month and be replaced by one of his current deputies, Jonathan G. Cedarbaum, the department said Thursday. …

Much of the work of the Office of Legal Counsel is confidential, but over the past 18 months Mr. Barron has handled a variety of issues including wartime questions like how much involvement with Al Qaeda is necessary to make a terrorism suspect subject to detention without trial and domestic matters like whether stalking and domestic violence laws apply to same-sex couples. . .Mr. Barron’s replacement, Mr. Cedarbaum, came to public attention earlier this year after Fox News named him as one of several Justice Department lawyers who had previously advocated for detainees.

As I’ve previously reported, there are serious concerns regarding conflicts of interest for those who previously represented detainees when they “switch sides”:

The limited information the Justice Department has so far released raises real concerns as to whether former advocates for detainees were properly recused from matters involving Guantánamo detainees and policy decisions that would inevitably involve their former clients. Did they violate obligations to former clients by construing their recusal obligations too narrowly? Did they damage their current client, the United States, by shading their advice for the sake of consistency with their prior representation?

Professor Richard Painter, an ethics expert from the University of Minnesota, wrote to Holder in April raising such issues. He noted, “There are legitimate concerns about client conflicts for lawyers who previously represented detainees and now work for the Department.” The “simplest” approach he advised would be to have them recused from all detainee matters. … Painter explained that there are multiple risks for these attorneys. “One danger is that you give an issue to the detainee who is convicted. Another is that you actually disclose information [you obtained] from a former client. A third is that the lawyer in an effort to avoid one and two bends over backwards by underrepresenting” the United States. Clients (even the government) have a right to be fully represented.

If he is appointed to fill the spot on a permanent basis, the Senate should not confirm Cedarbaum until he reveals which cases he has and will recuse himself from. That he would even be nominated for this position tells us volumes about the Obama-Holder mindset. Their preference for appointing to sensitive positions those attorneys whose sympathies and efforts were devoted to terrorists should concern us all.

The Senate blocked the nomination of Dawn Johnsen, who holds extreme views on everything from abortion to detainee policy, to head the Justice Department’s Office of Legal Counsel. OLC is a key office that renders opinions on key constitutional issues for Justice and the entire government. Now word comes that an attorney who formerly represented al-Qaeda terrorists will fill the spot. The New York Times reports:

David J. Barron, the acting head of the Justice Department’s powerful Office of Legal Counsel, will step down next month and be replaced by one of his current deputies, Jonathan G. Cedarbaum, the department said Thursday. …

Much of the work of the Office of Legal Counsel is confidential, but over the past 18 months Mr. Barron has handled a variety of issues including wartime questions like how much involvement with Al Qaeda is necessary to make a terrorism suspect subject to detention without trial and domestic matters like whether stalking and domestic violence laws apply to same-sex couples. . .Mr. Barron’s replacement, Mr. Cedarbaum, came to public attention earlier this year after Fox News named him as one of several Justice Department lawyers who had previously advocated for detainees.

As I’ve previously reported, there are serious concerns regarding conflicts of interest for those who previously represented detainees when they “switch sides”:

The limited information the Justice Department has so far released raises real concerns as to whether former advocates for detainees were properly recused from matters involving Guantánamo detainees and policy decisions that would inevitably involve their former clients. Did they violate obligations to former clients by construing their recusal obligations too narrowly? Did they damage their current client, the United States, by shading their advice for the sake of consistency with their prior representation?

Professor Richard Painter, an ethics expert from the University of Minnesota, wrote to Holder in April raising such issues. He noted, “There are legitimate concerns about client conflicts for lawyers who previously represented detainees and now work for the Department.” The “simplest” approach he advised would be to have them recused from all detainee matters. … Painter explained that there are multiple risks for these attorneys. “One danger is that you give an issue to the detainee who is convicted. Another is that you actually disclose information [you obtained] from a former client. A third is that the lawyer in an effort to avoid one and two bends over backwards by underrepresenting” the United States. Clients (even the government) have a right to be fully represented.

If he is appointed to fill the spot on a permanent basis, the Senate should not confirm Cedarbaum until he reveals which cases he has and will recuse himself from. That he would even be nominated for this position tells us volumes about the Obama-Holder mindset. Their preference for appointing to sensitive positions those attorneys whose sympathies and efforts were devoted to terrorists should concern us all.

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RE: Forcing a Vote on Jobs-Gate

As I noted yesterday, House Republicans introduced a resolution earlier in the month to require the Justice Department to turn over any documents on the job offers to Joe Sestak and Andrew Romanoff. Predictably, the Democrats voted down the resolution in the House Judiciary Committee by a 15-12 vote. Ranking member Lamar Smith had this to say after the vote:

I’m disappointed that Judiciary Committee Democrats today voted against requiring the Obama administration to make good on its promise of openness and transparency.  Allegations of unethical and possibly criminal conduct by Administration officials should be taken seriously by Congress.  Unfortunately, when it’s comes to possible misconduct by the Obama administration, Democrats in Congress seem eager to sweep the allegations under the rug. … I am disappointed that this Resolution of Inquiry is even necessary.  But the Administration has ignored all efforts to conduct meaningful oversight. If the Administration has nothing to hide, why not provide Congress with the requested documents and restore integrity to our election process?

The Democrats say that the resolution was “political.” Oh, puhleez. The White House tenders jobs to get two candidates out of primary races and then House Democrats vote in lockstep not to force it to disclose even what was said to whom. But the Republicans are playing politics? And so what if they are? What’s the excuse for not turning over the information — it would look bad? It would be embarrassing? When Democrats skewered the hapless Alberto Gonzales for firing the U.S. attorney, they were playing politics too; but that’s an observation, not an excuse for refusing to turn over relevant documents.

This is a powerful advertisement for divided government. If the administration isn’t going to allow scrutiny of its behavior, and House Democrats aren’t going to demand it, then voters who have come to loathe backroom deals and self-serving pols may conclude either that the House needs new management or that the White House does. Maybe both.

As I noted yesterday, House Republicans introduced a resolution earlier in the month to require the Justice Department to turn over any documents on the job offers to Joe Sestak and Andrew Romanoff. Predictably, the Democrats voted down the resolution in the House Judiciary Committee by a 15-12 vote. Ranking member Lamar Smith had this to say after the vote:

I’m disappointed that Judiciary Committee Democrats today voted against requiring the Obama administration to make good on its promise of openness and transparency.  Allegations of unethical and possibly criminal conduct by Administration officials should be taken seriously by Congress.  Unfortunately, when it’s comes to possible misconduct by the Obama administration, Democrats in Congress seem eager to sweep the allegations under the rug. … I am disappointed that this Resolution of Inquiry is even necessary.  But the Administration has ignored all efforts to conduct meaningful oversight. If the Administration has nothing to hide, why not provide Congress with the requested documents and restore integrity to our election process?

The Democrats say that the resolution was “political.” Oh, puhleez. The White House tenders jobs to get two candidates out of primary races and then House Democrats vote in lockstep not to force it to disclose even what was said to whom. But the Republicans are playing politics? And so what if they are? What’s the excuse for not turning over the information — it would look bad? It would be embarrassing? When Democrats skewered the hapless Alberto Gonzales for firing the U.S. attorney, they were playing politics too; but that’s an observation, not an excuse for refusing to turn over relevant documents.

This is a powerful advertisement for divided government. If the administration isn’t going to allow scrutiny of its behavior, and House Democrats aren’t going to demand it, then voters who have come to loathe backroom deals and self-serving pols may conclude either that the House needs new management or that the White House does. Maybe both.

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This Will Be an Interesting Hearing

J. Christian Adams, the Justice Department trial lawyer on the New Black Panther Party voter-intimidation case who recently resigned in disgust, is going to testify on July 6 before the U.S. Commission on Civil Rights. I imagine he will be asked about many of the details in the emerging tale of the Obama team’s decision to relinquish a legal victory in a case of documented voter intimidation. Might it have had something to do with the race of the defendants? We’ll find out more on the 6th.

J. Christian Adams, the Justice Department trial lawyer on the New Black Panther Party voter-intimidation case who recently resigned in disgust, is going to testify on July 6 before the U.S. Commission on Civil Rights. I imagine he will be asked about many of the details in the emerging tale of the Obama team’s decision to relinquish a legal victory in a case of documented voter intimidation. Might it have had something to do with the race of the defendants? We’ll find out more on the 6th.

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Forcing a Vote on Jobs-Gate

Earlier this month, House Judiciary Committee ranking member Lamar Smith (R-Texas) and Constitution Subcommittee ranking member Jim Sensenbrenner (R-Wis.) introduced a resolution demanding that the administration turn over information about the Department of Justice’s involvement in the White House’s efforts to drive Joe Sestak and Andrew Romanoff out of their Senate primary races. That resolution will be taken up by the House Judiciary Committee today. As a GOP staffer explained, House Democrats “will be forced to vote on whether to hold the Administration accountable to its promises of transparency and change—especially with regard to providing documents on the Sestak-Romanoff job offers.”

I imagine there will be some vigorous debate and some feisty speeches from House Republicans. The resolution will almost certainly fail on a party-line vote, but it’s one more sign that Washington will be a very different place if the Republicans take over majority control of one or both houses in November. In the meantime it will be interesting to see how Democrats will defend their refusal to get basic information about the Blago-lite operation being run out of the White House.

Earlier this month, House Judiciary Committee ranking member Lamar Smith (R-Texas) and Constitution Subcommittee ranking member Jim Sensenbrenner (R-Wis.) introduced a resolution demanding that the administration turn over information about the Department of Justice’s involvement in the White House’s efforts to drive Joe Sestak and Andrew Romanoff out of their Senate primary races. That resolution will be taken up by the House Judiciary Committee today. As a GOP staffer explained, House Democrats “will be forced to vote on whether to hold the Administration accountable to its promises of transparency and change—especially with regard to providing documents on the Sestak-Romanoff job offers.”

I imagine there will be some vigorous debate and some feisty speeches from House Republicans. The resolution will almost certainly fail on a party-line vote, but it’s one more sign that Washington will be a very different place if the Republicans take over majority control of one or both houses in November. In the meantime it will be interesting to see how Democrats will defend their refusal to get basic information about the Blago-lite operation being run out of the White House.

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RE: Darrell Issa And the Criminalization of Politics

Pete, you sound a helpful warning on the dangers of overreach and the disturbing tendency to summon special prosecutors as a cure-all for bad government. There are a couple of issues that, I think, are helpful to keep in mind as we look at the issue of oversight and, more broadly, of divided government.

It is understandable that the Republicans would welcome the opportunity for congressional oversight. We have had virtually none of it during the last 18 months. Whether it has been on the failings that led up to Fort Hood, the dismissal of the New Black Panther case, the potential conflicts of interest for Justice Department lawyers who previously represented terrorists, or dozens of other issues, congressional Democrats have placed party loyalty above their obligation to act as a check on the executive branch through congressional oversight. Subpoenas are needed when the government refuses to cooperate with Congressional investigators. Some of those demands for information are not legitimate, in which case Congress generally retreats or is rebuffed by the courts. But at other times, it is the last resort when confronting a Nixonesque administration. In short, Congressional oversight can be abused and boomerang on the investigators, but when an administration is as overreaching and nontransparent as this one, robust oversight is generally a good idea.

The other issue to keep in mind is the distinction between political and legal consequences. Not every bad decision or decision undertaken for corrupt motives is illegal, but there is still a need to expose it and subject the participants to the scrutiny of voters. Normally this is a function we’d expect the media to perform. But again, they are doing a fraction of what they should and normally would do — if a Republicans were in power. For example, a congressional investigation on the shady job offers need not be intended to or result in criminal prosecution; the need to expose the ethical standards of this administration is more than enough reason to conduct some hearings and require testimony under oath.

I would suggest that the proper balance in this is ample congressional oversight, but selective (very selective) use of criminal proceedings. The punishment for unwise, ethically repugnant, and incompetent office holders should come from the ballot box. But to do that we first have to figure out what they are up to. In the Obama era, I think we could use plenty more of that.

Pete, you sound a helpful warning on the dangers of overreach and the disturbing tendency to summon special prosecutors as a cure-all for bad government. There are a couple of issues that, I think, are helpful to keep in mind as we look at the issue of oversight and, more broadly, of divided government.

It is understandable that the Republicans would welcome the opportunity for congressional oversight. We have had virtually none of it during the last 18 months. Whether it has been on the failings that led up to Fort Hood, the dismissal of the New Black Panther case, the potential conflicts of interest for Justice Department lawyers who previously represented terrorists, or dozens of other issues, congressional Democrats have placed party loyalty above their obligation to act as a check on the executive branch through congressional oversight. Subpoenas are needed when the government refuses to cooperate with Congressional investigators. Some of those demands for information are not legitimate, in which case Congress generally retreats or is rebuffed by the courts. But at other times, it is the last resort when confronting a Nixonesque administration. In short, Congressional oversight can be abused and boomerang on the investigators, but when an administration is as overreaching and nontransparent as this one, robust oversight is generally a good idea.

The other issue to keep in mind is the distinction between political and legal consequences. Not every bad decision or decision undertaken for corrupt motives is illegal, but there is still a need to expose it and subject the participants to the scrutiny of voters. Normally this is a function we’d expect the media to perform. But again, they are doing a fraction of what they should and normally would do — if a Republicans were in power. For example, a congressional investigation on the shady job offers need not be intended to or result in criminal prosecution; the need to expose the ethical standards of this administration is more than enough reason to conduct some hearings and require testimony under oath.

I would suggest that the proper balance in this is ample congressional oversight, but selective (very selective) use of criminal proceedings. The punishment for unwise, ethically repugnant, and incompetent office holders should come from the ballot box. But to do that we first have to figure out what they are up to. In the Obama era, I think we could use plenty more of that.

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When Does an Unfulfilled Political Promise Become a Lie?

The president and his hapless attorney general (who, like the former director of National Intelligence, Dennis Blair, seems to be handicapped by his inability to go out in public without unnerving political supporters and giving fodder to opponents) repeatedly promised that they would reverse the Bush administration’s alleged proclivity to politicize the administration of justice. In the end, the accusations against the Bush team proved to be generally groundless (John Yoo and Jay Bybee were cleared, and the allegations that Yoo intentionally provided faulty legal advice were specifically rejected) or trivial (e.g., replacing nine U.S. attorneys, in contrast to other administrations, which replaced all of them). And in the politicization department, no one holds a candle to the Obama team.

This report explains that for all the crying about upholding our legal traditions and rejecting the “lawless” Bush team, the Obama gang is delaying a decision on the KSM trial until the election is in the rear-view mirror. It’s hard to get more political than that (unless, of course, it’s dismissing the New Black Panther intimidation case because left-wing civil rights groups and Holder’s lawyers don’t like enforcing the civil rights laws against minority defendants). Josh Gerstein reports:

Attorney General Eric Holder said the decision over where to hold the trial for alleged 9/11 plotter Khalid Sheikh Mohammad was “weeks away” — three months ago. Now advocates on both sides of the issue say they expect the Obama administration to punt the decision until after the November midterm elections — when the controversial plan could do less damage to the political fortunes of endangered Democrats and might face less resistance on Capitol Hill.

Holder last week explicitly denied the midterms had anything to do with the timing but would only say discussions are continuing. The White House had no comment. Any further stalling could pose a serious political problem for President Barack Obama on the left — where advocates cheered his administration’s plan to break from the Bush administration and give top al-Qaida figures trials in American courtrooms, a sign to the country and the world that U.S.-style justice was enough to try to men accused of the worst crimes in the nation’s history. … Advocates say the signs of foot-dragging are evident. The Democrats’ political fortunes have dipped further, talks on the broader issue of Guantanamo closure have ground to a halt and the House took a little-noticed vote to block transporting any Gitmo detainees to the United States, for any reason.

The Obama administration plainly doesn’t have the nerve to stand up to its own base, so it delays and delays. Not exactly upholding our fundamental values, as Obama often preened. When the Bush administration had to combat endless attacks on its detainee procedures, the left, of course, excoriated the Bush Justice Department for dragging its feet and holding detainees in limbo. Some are shocked, shocked, to discover that the Obama gang is much worse:

“The worst possible outcome is not making a decision. … There’s a genuinely weird paralysis I would not have predicted,” said Ben Wittes, a Brookings Institution scholar who has urged Obama to announce that there will be no trials for the 9/11 suspects. “It’s disgraceful and they should be embarrassed by it. There are pros and cons of any approach you take, but there is no good argument to let this fester indefinitely.”

If there were Democrats willing to exercise any semblance of congressional oversight, the administration might be pressured to end the “weird” and entirely self-imposed paralysis. But for now, onlookers can only fume:

While “swift and certain justice” once was a regular part of the White House lexicon on Guantanamo and detainee trials, that catchphrase has now vanished along with the prospect of anything swift happening to most of the prisoners slated for continued detention or trial.

“Both the 9/11 and the Cole families had the president look them in the eye and say, ‘We’re going to close Gitmo, move forward with this process, and hold people accountable,’” said Commander Kirk Lippold, a proponent of military trials who was the commanding officer aboard the U.S.S. Cole when it was attacked in Yemen in 2000. “When does an unfulfilled political promise become a lie?” Lippold asked.

Now, there’s a question for Holder for his next outing on Capitol Hill.

The president and his hapless attorney general (who, like the former director of National Intelligence, Dennis Blair, seems to be handicapped by his inability to go out in public without unnerving political supporters and giving fodder to opponents) repeatedly promised that they would reverse the Bush administration’s alleged proclivity to politicize the administration of justice. In the end, the accusations against the Bush team proved to be generally groundless (John Yoo and Jay Bybee were cleared, and the allegations that Yoo intentionally provided faulty legal advice were specifically rejected) or trivial (e.g., replacing nine U.S. attorneys, in contrast to other administrations, which replaced all of them). And in the politicization department, no one holds a candle to the Obama team.

This report explains that for all the crying about upholding our legal traditions and rejecting the “lawless” Bush team, the Obama gang is delaying a decision on the KSM trial until the election is in the rear-view mirror. It’s hard to get more political than that (unless, of course, it’s dismissing the New Black Panther intimidation case because left-wing civil rights groups and Holder’s lawyers don’t like enforcing the civil rights laws against minority defendants). Josh Gerstein reports:

Attorney General Eric Holder said the decision over where to hold the trial for alleged 9/11 plotter Khalid Sheikh Mohammad was “weeks away” — three months ago. Now advocates on both sides of the issue say they expect the Obama administration to punt the decision until after the November midterm elections — when the controversial plan could do less damage to the political fortunes of endangered Democrats and might face less resistance on Capitol Hill.

Holder last week explicitly denied the midterms had anything to do with the timing but would only say discussions are continuing. The White House had no comment. Any further stalling could pose a serious political problem for President Barack Obama on the left — where advocates cheered his administration’s plan to break from the Bush administration and give top al-Qaida figures trials in American courtrooms, a sign to the country and the world that U.S.-style justice was enough to try to men accused of the worst crimes in the nation’s history. … Advocates say the signs of foot-dragging are evident. The Democrats’ political fortunes have dipped further, talks on the broader issue of Guantanamo closure have ground to a halt and the House took a little-noticed vote to block transporting any Gitmo detainees to the United States, for any reason.

The Obama administration plainly doesn’t have the nerve to stand up to its own base, so it delays and delays. Not exactly upholding our fundamental values, as Obama often preened. When the Bush administration had to combat endless attacks on its detainee procedures, the left, of course, excoriated the Bush Justice Department for dragging its feet and holding detainees in limbo. Some are shocked, shocked, to discover that the Obama gang is much worse:

“The worst possible outcome is not making a decision. … There’s a genuinely weird paralysis I would not have predicted,” said Ben Wittes, a Brookings Institution scholar who has urged Obama to announce that there will be no trials for the 9/11 suspects. “It’s disgraceful and they should be embarrassed by it. There are pros and cons of any approach you take, but there is no good argument to let this fester indefinitely.”

If there were Democrats willing to exercise any semblance of congressional oversight, the administration might be pressured to end the “weird” and entirely self-imposed paralysis. But for now, onlookers can only fume:

While “swift and certain justice” once was a regular part of the White House lexicon on Guantanamo and detainee trials, that catchphrase has now vanished along with the prospect of anything swift happening to most of the prisoners slated for continued detention or trial.

“Both the 9/11 and the Cole families had the president look them in the eye and say, ‘We’re going to close Gitmo, move forward with this process, and hold people accountable,’” said Commander Kirk Lippold, a proponent of military trials who was the commanding officer aboard the U.S.S. Cole when it was attacked in Yemen in 2000. “When does an unfulfilled political promise become a lie?” Lippold asked.

Now, there’s a question for Holder for his next outing on Capitol Hill.

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It Depends on What the Meaning of “Her Words Speak for Themselves” Is

At Friday’s State Department news conference, the acting deputy spokesman, Mark C. Toner, was asked if Hillary Clinton had misspoken when she told an Ecuadorian TV station that the Obama administration would be suing Arizona over its immigration-enforcement law. Toner responded that her words “stand for themselves,” which produced the following colloquy — excerpted here both for its comedy silver and as a contribution to the debate on whether Hillary has done “an incredible job” as secretary of state:

QUESTION: … [the] Arizona governor said in a written release, “To learn of this lawsuit through an Ecuadorian interview with the Secretary of State is just outrageous. There’s no way to treat – this no way to treat the people of Arizona.” Is there an apology here?

MR. TONER: The Secretary responded to a question she was asked in an interview. This is obviously an issue of great concern and resonance domestically, but it is as well in the hemisphere. … Her words speak for themselves. And I would just defer you to the Justice Department …

QUESTION: So you’re saying she did not misspeak?

MR. TONER: I’m saying her words stand for themselves. …

QUESTION: You say that her words stand for themselves, but that doesn’t answer the question of whether she misspoke or spoke too early. Can you answer that? …

MR. TONER: – I’d defer you to the Department of Justice.

QUESTION: I think you would want to refer me, not defer me.

MR. TONER: I said refer you. …

QUESTION: But the question is … about what the Secretary said.

MR. TONER: And I will say for the third time that her words speak for themselves.

QUESTION: In other words, that you don’t –

MR. TONER: Not in other words.

QUESTION: You don’t want to –

MR. TONER: Not in other words. And I would also say, as I just spoke, is that the President, the Secretary, others in this Administration have said the long-term solution to this is comprehensive immigration reform.

QUESTION: All right. Well, let’s [talk] about the short-term solution to the Arizona situation, not the long-term solution. Let’s talk about what she actually said in the interview. Did she misspeak?

MR. TONER: Her words speak for themselves.

QUESTION: That doesn’t answer the question.

MR. TONER: No. She – her words speak for themselves.

QUESTION: She did not misspeak, so the Administration is intending to sue Arizona?

MR. TONER: Her words speak for themselves.

QUESTION: Is the Administration intending to sue Arizona?

MR. TONER: Defer you to the Justice Department on –

QUESTION: Refer.

MR. TONER: – the next steps legally. I said refer.

QUESTION: You’re saying defer.

MR. TONER: Am I saying defer? Well, anyway, go ahead.

QUESTION: … You know, State sends us to Justice, Justice goes back to State, and so on and so on. Was she – did she mean to say maybe that the Justice Department was studying this lawsuit or –

MR. TONER: Look, I’m not going to parse the Secretary’s words….

QUESTION: So it’s no misstatement in any way. What she said –

MR. TONER: They stand –

QUESTION: — she stands by it.

MR. TONER: They stand for themselves …

QUESTION: Okay, well then, you know, this is a daily briefing. So is the Administration intending to sue Arizona over this –

MR. TONER: That’s a matter for the Department of Justice.

QUESTION: Is that perhaps not the answer that she should have given when she was asked the question?

MR. TONER: Matt, her words speak for themselves, okay?

OK, OK. We will simply add her self-speaking words to the mini-Bartletts of diplomatically dumb quotations she has been compiling over the last year and a half. It is a volume that already contains her dismissal of prior U.S. understandings with Israel as “unenforceable”; her assurance to Congress that “crippling” sanctions would be in place if engagement failed; her embarrassing explanation to Al Arabyia that “experts” had assured her that engagement would succeed; her description of the Gaza blockade as not only unsustainable but “unacceptable” (a word previously reserved for game-changing violations of binding UN resolutions by an adversary, until that position unfortunately became unsustainable); etc.

It is a record that speaks for itself; no wonder some think she is ready for Joe Biden’s job.

At Friday’s State Department news conference, the acting deputy spokesman, Mark C. Toner, was asked if Hillary Clinton had misspoken when she told an Ecuadorian TV station that the Obama administration would be suing Arizona over its immigration-enforcement law. Toner responded that her words “stand for themselves,” which produced the following colloquy — excerpted here both for its comedy silver and as a contribution to the debate on whether Hillary has done “an incredible job” as secretary of state:

QUESTION: … [the] Arizona governor said in a written release, “To learn of this lawsuit through an Ecuadorian interview with the Secretary of State is just outrageous. There’s no way to treat – this no way to treat the people of Arizona.” Is there an apology here?

MR. TONER: The Secretary responded to a question she was asked in an interview. This is obviously an issue of great concern and resonance domestically, but it is as well in the hemisphere. … Her words speak for themselves. And I would just defer you to the Justice Department …

QUESTION: So you’re saying she did not misspeak?

MR. TONER: I’m saying her words stand for themselves. …

QUESTION: You say that her words stand for themselves, but that doesn’t answer the question of whether she misspoke or spoke too early. Can you answer that? …

MR. TONER: – I’d defer you to the Department of Justice.

QUESTION: I think you would want to refer me, not defer me.

MR. TONER: I said refer you. …

QUESTION: But the question is … about what the Secretary said.

MR. TONER: And I will say for the third time that her words speak for themselves.

QUESTION: In other words, that you don’t –

MR. TONER: Not in other words.

QUESTION: You don’t want to –

MR. TONER: Not in other words. And I would also say, as I just spoke, is that the President, the Secretary, others in this Administration have said the long-term solution to this is comprehensive immigration reform.

QUESTION: All right. Well, let’s [talk] about the short-term solution to the Arizona situation, not the long-term solution. Let’s talk about what she actually said in the interview. Did she misspeak?

MR. TONER: Her words speak for themselves.

QUESTION: That doesn’t answer the question.

MR. TONER: No. She – her words speak for themselves.

QUESTION: She did not misspeak, so the Administration is intending to sue Arizona?

MR. TONER: Her words speak for themselves.

QUESTION: Is the Administration intending to sue Arizona?

MR. TONER: Defer you to the Justice Department on –

QUESTION: Refer.

MR. TONER: – the next steps legally. I said refer.

QUESTION: You’re saying defer.

MR. TONER: Am I saying defer? Well, anyway, go ahead.

QUESTION: … You know, State sends us to Justice, Justice goes back to State, and so on and so on. Was she – did she mean to say maybe that the Justice Department was studying this lawsuit or –

MR. TONER: Look, I’m not going to parse the Secretary’s words….

QUESTION: So it’s no misstatement in any way. What she said –

MR. TONER: They stand –

QUESTION: — she stands by it.

MR. TONER: They stand for themselves …

QUESTION: Okay, well then, you know, this is a daily briefing. So is the Administration intending to sue Arizona over this –

MR. TONER: That’s a matter for the Department of Justice.

QUESTION: Is that perhaps not the answer that she should have given when she was asked the question?

MR. TONER: Matt, her words speak for themselves, okay?

OK, OK. We will simply add her self-speaking words to the mini-Bartletts of diplomatically dumb quotations she has been compiling over the last year and a half. It is a volume that already contains her dismissal of prior U.S. understandings with Israel as “unenforceable”; her assurance to Congress that “crippling” sanctions would be in place if engagement failed; her embarrassing explanation to Al Arabyia that “experts” had assured her that engagement would succeed; her description of the Gaza blockade as not only unsustainable but “unacceptable” (a word previously reserved for game-changing violations of binding UN resolutions by an adversary, until that position unfortunately became unsustainable); etc.

It is a record that speaks for itself; no wonder some think she is ready for Joe Biden’s job.

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Not If — but When — Does Holder Go?

COMMENTARY contributor Gabriel Schoenfeld writes:

Eric Holder has been a disastrous attorney general. “Classic 101 Boobery” was how one Democratic operative memorably called his decision, now on hold, to try Khalid Sheikh Mohammed in a civilian court in lower Manhattan. Other blunders have piled up and the White House has been repeatedly embarrassed by his string of ill-considered decisions and gaffes. With the midterm elections approaching, it would not be surprising if Holder soon finds himself under the Obama bus, lying next to former Director of National Intelligence Dennis Blair.

No doubt Holder has become a liability. It’s not clear, however, that shoving him aside before the election would win Obama any brownie points with voters. But one thing is for sure: if the Republicans take either the House or the Senate, Holder will get bounced before new chairmen take over key committees and start firing subpoenas his way. The stonewall act will end, or the Obama administration will wind up in nasty court fights. And we will learn how Holder’s operation, supposedly dedicated to de-politicizing the Justice Department, has been corrupted by left-wing ideologues. For a White House increasingly perceived as a bastion of liberal political hackery, Holder has become one more problem that they’d rather have behind them. Better to have Holder skewered as the former attorney general and to let a brand-new attorney general promise to take a “hard look” at Justice than to watch the agonizing sight of Holder twisting and turning, struggling to explain himself and his crew of leftist lawyers.

COMMENTARY contributor Gabriel Schoenfeld writes:

Eric Holder has been a disastrous attorney general. “Classic 101 Boobery” was how one Democratic operative memorably called his decision, now on hold, to try Khalid Sheikh Mohammed in a civilian court in lower Manhattan. Other blunders have piled up and the White House has been repeatedly embarrassed by his string of ill-considered decisions and gaffes. With the midterm elections approaching, it would not be surprising if Holder soon finds himself under the Obama bus, lying next to former Director of National Intelligence Dennis Blair.

No doubt Holder has become a liability. It’s not clear, however, that shoving him aside before the election would win Obama any brownie points with voters. But one thing is for sure: if the Republicans take either the House or the Senate, Holder will get bounced before new chairmen take over key committees and start firing subpoenas his way. The stonewall act will end, or the Obama administration will wind up in nasty court fights. And we will learn how Holder’s operation, supposedly dedicated to de-politicizing the Justice Department, has been corrupted by left-wing ideologues. For a White House increasingly perceived as a bastion of liberal political hackery, Holder has become one more problem that they’d rather have behind them. Better to have Holder skewered as the former attorney general and to let a brand-new attorney general promise to take a “hard look” at Justice than to watch the agonizing sight of Holder twisting and turning, struggling to explain himself and his crew of leftist lawyers.

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Flotsam and Jetsam

It took Barack Obama to turn an ex-president into a sleazy “bag man.”

What will it take for the left to break with the anti-Semites, racists, and Israel-bashers? “Democracy for America, the progressive group that grew out of Howard Dean’s campaign for president, is standing by its support for a House candidate who backs a radical single-state solution in the Middle East and suggested in an interview that Jewish Reps. Jane Harman and Henry Waxman should ‘pledge allegiance to this country as the country they represent.”

Will Obama take this opportunity to dump the witch hunt against CIA interrogators? Stephen Hayes recommends that he should: “The repercussions have been severe. CIA operators, already risk averse, are today far less willing to take risks in the field out of fear that a wrong decision, even a legal one that produced crucial intelligence, could send them to jail. Obama should also insist that the Justice Department aggressively investigate the alleged exposure of CIA officials by lawyers representing Guantánamo detainees. Photographs of officials were discovered in the cell of Mustafa Ahmed al Hawsawi and were reportedly provided by investigators working for the ACLU and the National Association of Criminal Defense Lawyers. John Rizzo, former CIA general counsel and a 30-year intelligence veteran, said that the breach was far graver than the leak of Valerie Plame’s name.”

It took a few weeks of criticism to reveal Peter Beinart’s vile attitudes toward his fellow Jews: Nathan Diament on Beinart’s latest outburst in the Israel-hating the New York Review of Books: “Peter goes way beyond debating substance and drifts into stereotyping and calumny, saying: ‘the same sort of settler fanatics who burn Palestinian olive groves also assassinated an Israeli prime minister. The same ultra-Orthodox hooligans who burn Christian holy books also attack Jewish women trying to pray at the Western Wall.’ He also slams Rav Ovadia Yosef and, apparently, anyone else in Israel who, we suppose, doesn’t agree with his view — or that of the editorial board of Ha’aretz — as to precisely what ought to happen.”

It took a year and a half of Obama’s presidency to ruin Blanche Lincoln’s career: “[Arkansas's] larger bloc of conservative Democrats and independents upset over the perception that the incumbent is overly cozy with the unpopular President Obama, the Agriculture Committee chair and Delta farmer’s daughter finds her 18-year congressional career in grave jeopardy.”

It took a determined Jewish mom from Los Angeles to figure out it only took a $15 dollar solar cooker (made of cardboard and aluminum) to help protect “female [Darfur] refugees who were being ruthlessly subjected to physical and sexual brutality when they left the relative safety of their refugee camps.” She’s done more for human rights in Darfur — much more — than Obama and his embarrassingly ineffective special envoy have.

Have you noticed that Democrats aren’t so willing to take unpopular stands for this president on national security? “The Senate Armed Services Committee dealt a big setback to President Obama’s plans to close the detention facility at Guantanamo Bay when lawmakers stripped funding for a new prison in Illinois to hold the detainees. Committee Chairman Carl Levin on Friday told reporters the committee, in a voice vote, stripped $245 million that would have gone to buy and retrofit the Thomson prison in Illinois.”

Charles Hurt catches Obama taking responsibility for “zilch” at his BP oil-spill press conference: “It was yet another performance of the ‘full responsibility’ flimflam. … President Obama repeatedly took ‘full responsibility’ for the blundering efforts to clog up the geyser of crude oil spewing into the Gulf of Mexico coating everything in sight. At the same time, Obama repeatedly denied that his administration was complicit in allowing the catastrophe to happen in the first place, slow to realize the devastating nature of it, or ham-handed in the five-week effort to try to stem the toxic tide. In other words, Obama — as he often does — took ‘full responsibility’ for being awesome.”

It took Barack Obama to turn an ex-president into a sleazy “bag man.”

What will it take for the left to break with the anti-Semites, racists, and Israel-bashers? “Democracy for America, the progressive group that grew out of Howard Dean’s campaign for president, is standing by its support for a House candidate who backs a radical single-state solution in the Middle East and suggested in an interview that Jewish Reps. Jane Harman and Henry Waxman should ‘pledge allegiance to this country as the country they represent.”

Will Obama take this opportunity to dump the witch hunt against CIA interrogators? Stephen Hayes recommends that he should: “The repercussions have been severe. CIA operators, already risk averse, are today far less willing to take risks in the field out of fear that a wrong decision, even a legal one that produced crucial intelligence, could send them to jail. Obama should also insist that the Justice Department aggressively investigate the alleged exposure of CIA officials by lawyers representing Guantánamo detainees. Photographs of officials were discovered in the cell of Mustafa Ahmed al Hawsawi and were reportedly provided by investigators working for the ACLU and the National Association of Criminal Defense Lawyers. John Rizzo, former CIA general counsel and a 30-year intelligence veteran, said that the breach was far graver than the leak of Valerie Plame’s name.”

It took a few weeks of criticism to reveal Peter Beinart’s vile attitudes toward his fellow Jews: Nathan Diament on Beinart’s latest outburst in the Israel-hating the New York Review of Books: “Peter goes way beyond debating substance and drifts into stereotyping and calumny, saying: ‘the same sort of settler fanatics who burn Palestinian olive groves also assassinated an Israeli prime minister. The same ultra-Orthodox hooligans who burn Christian holy books also attack Jewish women trying to pray at the Western Wall.’ He also slams Rav Ovadia Yosef and, apparently, anyone else in Israel who, we suppose, doesn’t agree with his view — or that of the editorial board of Ha’aretz — as to precisely what ought to happen.”

It took a year and a half of Obama’s presidency to ruin Blanche Lincoln’s career: “[Arkansas's] larger bloc of conservative Democrats and independents upset over the perception that the incumbent is overly cozy with the unpopular President Obama, the Agriculture Committee chair and Delta farmer’s daughter finds her 18-year congressional career in grave jeopardy.”

It took a determined Jewish mom from Los Angeles to figure out it only took a $15 dollar solar cooker (made of cardboard and aluminum) to help protect “female [Darfur] refugees who were being ruthlessly subjected to physical and sexual brutality when they left the relative safety of their refugee camps.” She’s done more for human rights in Darfur — much more — than Obama and his embarrassingly ineffective special envoy have.

Have you noticed that Democrats aren’t so willing to take unpopular stands for this president on national security? “The Senate Armed Services Committee dealt a big setback to President Obama’s plans to close the detention facility at Guantanamo Bay when lawmakers stripped funding for a new prison in Illinois to hold the detainees. Committee Chairman Carl Levin on Friday told reporters the committee, in a voice vote, stripped $245 million that would have gone to buy and retrofit the Thomson prison in Illinois.”

Charles Hurt catches Obama taking responsibility for “zilch” at his BP oil-spill press conference: “It was yet another performance of the ‘full responsibility’ flimflam. … President Obama repeatedly took ‘full responsibility’ for the blundering efforts to clog up the geyser of crude oil spewing into the Gulf of Mexico coating everything in sight. At the same time, Obama repeatedly denied that his administration was complicit in allowing the catastrophe to happen in the first place, slow to realize the devastating nature of it, or ham-handed in the five-week effort to try to stem the toxic tide. In other words, Obama — as he often does — took ‘full responsibility’ for being awesome.”

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Justice Department Sued Over Black Panther Documents

The Justice Department has been stonewalling individual members of Congress and the U.S. Commission on Civil Rights in their efforts to get to the bottom of the Obama-Holder Justice Department’s decision to abandon a default judgment against the New Black Panther Party and multiple individual defendants in a case of blatant voter intimidation. Now the conservative legal watchdog Judicial Watch is going to court to pry the documents loose:

Judicial Watch filed its original FOIA request on May 29, 2009. The Justice Department acknowledged receiving the request on June 18, 2009, but then referred the request to the Office of Information Policy (OIP) and the Civil Rights Division. On January 15, 2010, the OIP notified Judicial Watch that it would be responding to the request on behalf of the Offices of the Attorney General, the Deputy Attorney General, Associate Attorney General, Public Affairs, Legislative Affairs, Legal Policy, and Intergovernmental and Public Liaison.

On January 15, the OIP also indicated that the Office of the Associate Attorney General found 135 pages of records responsive to Judicial Watch’s request, but that all records would be withheld in full. On January 26, the OIP advised Judicial Watch that the Office of Public Affairs and Office of Legal Policy completed their searches and found no responsive documents. On February 10, the Justice Department’s Civil Rights Division indicated that after an extensive search it had located “numerous responsive records” but determined that “access to the majority of the records” should be denied. On March 26, the OIP indicated that the Office of Legislative Affairs and the Office of Intergovernmental and Public Liaison completed searches and found no documents.

It’s about time the courts rule on the panoply of made-up defenses and fake privileges that Holder has cooked up to avoid turning over these documents. Let the courts decide if the Obama administration can have it both ways — declining to invoke executive privilege but relying on the privilege under other names (“deliberative privilege”).

A knowledgeable lawyer e-mails me: “Notice DOJ revealed nothing about the number of panther documents in the AG and deputy AG office. Even for  the associate attorney general they revealed there were 135 but they weren’t going to turn them over. Failing to even name a number is extremely suspicious because those units can be searched quicker and easier for compliant documents. It leads one to conclude any number would be an embarrassment, and a high number would be a catastrophe. So, don’t reveal a number. Typical of this non-transparent operation.”

And now we’re going to see the administration’s true colors played out in open court. As a Judicial Watch spokesman said: “If there is nothing to hide, then Eric Holder should release this information as the law requires. And this is just one more example of how Obama’s promises of transparency are a big lie.”

But the Obama team may have a different problem: if either or both houses of Congress flip to Republican control, new chairmen will populate key committees and subpoenas will begin to fly. Congress is in an even better position to get access to the documents, as attorney-client privilege doesn’t work against a co-equal branch of government. In sum, Holder is running out of room to hide, finally.

The Justice Department has been stonewalling individual members of Congress and the U.S. Commission on Civil Rights in their efforts to get to the bottom of the Obama-Holder Justice Department’s decision to abandon a default judgment against the New Black Panther Party and multiple individual defendants in a case of blatant voter intimidation. Now the conservative legal watchdog Judicial Watch is going to court to pry the documents loose:

Judicial Watch filed its original FOIA request on May 29, 2009. The Justice Department acknowledged receiving the request on June 18, 2009, but then referred the request to the Office of Information Policy (OIP) and the Civil Rights Division. On January 15, 2010, the OIP notified Judicial Watch that it would be responding to the request on behalf of the Offices of the Attorney General, the Deputy Attorney General, Associate Attorney General, Public Affairs, Legislative Affairs, Legal Policy, and Intergovernmental and Public Liaison.

On January 15, the OIP also indicated that the Office of the Associate Attorney General found 135 pages of records responsive to Judicial Watch’s request, but that all records would be withheld in full. On January 26, the OIP advised Judicial Watch that the Office of Public Affairs and Office of Legal Policy completed their searches and found no responsive documents. On February 10, the Justice Department’s Civil Rights Division indicated that after an extensive search it had located “numerous responsive records” but determined that “access to the majority of the records” should be denied. On March 26, the OIP indicated that the Office of Legislative Affairs and the Office of Intergovernmental and Public Liaison completed searches and found no documents.

It’s about time the courts rule on the panoply of made-up defenses and fake privileges that Holder has cooked up to avoid turning over these documents. Let the courts decide if the Obama administration can have it both ways — declining to invoke executive privilege but relying on the privilege under other names (“deliberative privilege”).

A knowledgeable lawyer e-mails me: “Notice DOJ revealed nothing about the number of panther documents in the AG and deputy AG office. Even for  the associate attorney general they revealed there were 135 but they weren’t going to turn them over. Failing to even name a number is extremely suspicious because those units can be searched quicker and easier for compliant documents. It leads one to conclude any number would be an embarrassment, and a high number would be a catastrophe. So, don’t reveal a number. Typical of this non-transparent operation.”

And now we’re going to see the administration’s true colors played out in open court. As a Judicial Watch spokesman said: “If there is nothing to hide, then Eric Holder should release this information as the law requires. And this is just one more example of how Obama’s promises of transparency are a big lie.”

But the Obama team may have a different problem: if either or both houses of Congress flip to Republican control, new chairmen will populate key committees and subpoenas will begin to fly. Congress is in an even better position to get access to the documents, as attorney-client privilege doesn’t work against a co-equal branch of government. In sum, Holder is running out of room to hide, finally.

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Flotsam and Jetsam

But they are supposed to go into harm’s way for their country: the Navy takes away the lard and water hoses from a 60-year tradition in which plebes climb a greased 21-foot monument. Why? They might get hurt. A former Naval Academy graduate chimes in: “We’re going to send these guys to war but they can’t climb a monument because they might get hurt? Come on.” Next thing you know, they’ll be allowing proper names in Scrabble.

But don’t we have a First Amendment or something? “Former Alaska Gov. Sarah Palin accused the president of being in the pocket of Big Oil, a charge usually leveled by Democrats at the GOP. ‘You’ve got to have a license to drive a car in this country, but, regrettably, you can get on a TV show and say virtually anything,’ White House press secretary Robert Gibbs said.” Gosh, if we only licensed talking heads.

But he’s a “genius”! “Millions of Americans are out of work, the budget deficit is in the trillions and Europe is flirting with economic collapse. Fear not, says Larry Summers, the chief economic adviser to President Obama. It is merely a ‘fluctuation.’” His long-winded gobbledygook about moving from the G-7 to the G-20 “was vintage Summers: smart, esoteric — and utterly unhelpful.”

But isn’t it like allowing Keith Olbermann to review a George W. Bush biography? The Washington Post has David Frum (who’s carved out a niche in Limbaugh-bashing for the mainstream media) review the latest biography of Rush Limbaugh. Surprise, surprise, he concludes: “It might seem ominous for an intellectual movement to be led by a man who does not think creatively, who does not respect the other side of the argument and who frequently says things that are not intended as truth.”

But you didn’t really buy all that “transparency” jazz did you? “The Justice Department has rejected a Republican request to appoint a special counsel to investigate allegations that the White House offered a job to Rep. Joe Sestak if he would drop out of the Pennsylvania Senate Democratic primary. … In the letter to [Rep. Darrell] Issa, Assistant Attorney General Ronald Weich wrote that the DOJ could handle the allegations without creating a special counsel. But Weich gave no indication that the department was looking into the Sestak matter.”

But if David Axelrod is right about there being “no evidence” of a deal, then Sestak is lying. Mark Hemingway: “There’s no good outcome here for the White House. Either the White House did something illegal here or their party’s Senate candidate in Pennsylvania is a delusional fabulist. But regardless, their prolonged foot-dragging here only appears to be making things worse.”

But the White House said, “Trust us”: “The number two Democrat in the Senate, who has close ties to the White House, is urging Rep. Joe Sestak to come clean. Senate Majority Whip Dick Durbin told CNN Tuesday that the Pennsylvania Democrat should fully explain whether Obama administration officials pressed him to drop his Democratic primary challenge to Sen. Arlen Specter in exchange for a job.”

But Democrats insisted we needed a humungous new uber-department! James Carafano on the BP response: “Explain to me why nine years after 9/11 we struggle with disasters. Well, the answer is easy. Homeland Security wastes its time on routine disaster; the secretary worries more about how to grant amnesty to illegals than battling terrorists and preparing for catastrophes. Congress dumps money in wasteful programs and uses 108 committees, sub-committees, and commissions to provide chaotic and incoherent oversight to the department.”

But (as a sharp colleague suggested) couldn’t we work out a deal where Richard Blumenthal and Rand Paul both exit their races? Jonah Goldberg sums up why conservatives should carry no water for Paul: “[I]t’s certainly repugnant and bizarre for libertarians like Paul to lament the lost rights of bigots rather than to rejoice at the restored rights of integrationists.” (By the way, would Paul commend Obama for doing nothing at all about the BP spill?)

But they are supposed to go into harm’s way for their country: the Navy takes away the lard and water hoses from a 60-year tradition in which plebes climb a greased 21-foot monument. Why? They might get hurt. A former Naval Academy graduate chimes in: “We’re going to send these guys to war but they can’t climb a monument because they might get hurt? Come on.” Next thing you know, they’ll be allowing proper names in Scrabble.

But don’t we have a First Amendment or something? “Former Alaska Gov. Sarah Palin accused the president of being in the pocket of Big Oil, a charge usually leveled by Democrats at the GOP. ‘You’ve got to have a license to drive a car in this country, but, regrettably, you can get on a TV show and say virtually anything,’ White House press secretary Robert Gibbs said.” Gosh, if we only licensed talking heads.

But he’s a “genius”! “Millions of Americans are out of work, the budget deficit is in the trillions and Europe is flirting with economic collapse. Fear not, says Larry Summers, the chief economic adviser to President Obama. It is merely a ‘fluctuation.’” His long-winded gobbledygook about moving from the G-7 to the G-20 “was vintage Summers: smart, esoteric — and utterly unhelpful.”

But isn’t it like allowing Keith Olbermann to review a George W. Bush biography? The Washington Post has David Frum (who’s carved out a niche in Limbaugh-bashing for the mainstream media) review the latest biography of Rush Limbaugh. Surprise, surprise, he concludes: “It might seem ominous for an intellectual movement to be led by a man who does not think creatively, who does not respect the other side of the argument and who frequently says things that are not intended as truth.”

But you didn’t really buy all that “transparency” jazz did you? “The Justice Department has rejected a Republican request to appoint a special counsel to investigate allegations that the White House offered a job to Rep. Joe Sestak if he would drop out of the Pennsylvania Senate Democratic primary. … In the letter to [Rep. Darrell] Issa, Assistant Attorney General Ronald Weich wrote that the DOJ could handle the allegations without creating a special counsel. But Weich gave no indication that the department was looking into the Sestak matter.”

But if David Axelrod is right about there being “no evidence” of a deal, then Sestak is lying. Mark Hemingway: “There’s no good outcome here for the White House. Either the White House did something illegal here or their party’s Senate candidate in Pennsylvania is a delusional fabulist. But regardless, their prolonged foot-dragging here only appears to be making things worse.”

But the White House said, “Trust us”: “The number two Democrat in the Senate, who has close ties to the White House, is urging Rep. Joe Sestak to come clean. Senate Majority Whip Dick Durbin told CNN Tuesday that the Pennsylvania Democrat should fully explain whether Obama administration officials pressed him to drop his Democratic primary challenge to Sen. Arlen Specter in exchange for a job.”

But Democrats insisted we needed a humungous new uber-department! James Carafano on the BP response: “Explain to me why nine years after 9/11 we struggle with disasters. Well, the answer is easy. Homeland Security wastes its time on routine disaster; the secretary worries more about how to grant amnesty to illegals than battling terrorists and preparing for catastrophes. Congress dumps money in wasteful programs and uses 108 committees, sub-committees, and commissions to provide chaotic and incoherent oversight to the department.”

But (as a sharp colleague suggested) couldn’t we work out a deal where Richard Blumenthal and Rand Paul both exit their races? Jonah Goldberg sums up why conservatives should carry no water for Paul: “[I]t’s certainly repugnant and bizarre for libertarians like Paul to lament the lost rights of bigots rather than to rejoice at the restored rights of integrationists.” (By the way, would Paul commend Obama for doing nothing at all about the BP spill?)

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Another Day, Another Security Leak

The New York Times reported Monday that General David Petraeus issued a secret directive in September, expanding covert military operations in the Middle East. The author, Mark Mazzetti, states that the Times’ staff has viewed a copy of the document. Preparation for the article included speaking to government officials who discussed its contents only on condition of anonymity, because it’s classified.

Fortunately, our information security usually works better than this. Leaks of national-security secrets are the exception and not the rule. But once again, someone on the government payroll, with a clearance, and with knowledge of classified current operations, has broken the law by disclosing what he knows to unauthorized recipients in the press.

It’s unlikely that we will be told someday that the leaker of the Petraeus directive took action because of sleepless nights and professional agony, as Newsweek reported in 2008 of one warrantless-wiretapping leaker who called the New York Times in 2004. In the case of the Petraeus directive, there is no apparent reason for a leaker to be motivated by concern about government overreach or civil rights. Perhaps the motive is disagreement with the policy.

But these leakers aren’t romantic heroes; they are people breaking their government’s security oaths. Thomas Tamm, the known wiretapping leaker, has been investigated (and lionized by the left) but never prosecuted. Yet it’s clear he broke his security oath by going to the media. It’s also clear from the Newsweek story that he came nowhere near exhausting his lawful options for registering concern about the wiretapping program. He apparently talked to a former colleague on the Senate Judiciary Committee — but not to his full chain of command at the Justice Department, to the Justice Department Inspector General, or to the intelligence oversight committee of either house of Congress.

James Risen, the Times reporter who broke the wiretapping story, was subpoenaed by Eric Holder last month to disclose the government sources for another of his classified revelations: this one involving information about U.S. efforts against Iran in his 2006 book State of War. Risen has refused to comply. His fate is uncertain; presumably, he might be jailed for contempt of court as Judith Miller was in the Valerie Plame Wilson case.

Miller ultimately agreed to testify after obtaining immunity. While the Plame Wilson case is not the best example of the real problems created by national-security leaks, the outcome with Miller was the right one for more genuinely damaging cases. The “journalist shield” exception should not protect government leakers who are committing felonies by the very act of disclosing classified information to the press.  Journalists should have to tell the authorities who they are.

The New York Times reported Monday that General David Petraeus issued a secret directive in September, expanding covert military operations in the Middle East. The author, Mark Mazzetti, states that the Times’ staff has viewed a copy of the document. Preparation for the article included speaking to government officials who discussed its contents only on condition of anonymity, because it’s classified.

Fortunately, our information security usually works better than this. Leaks of national-security secrets are the exception and not the rule. But once again, someone on the government payroll, with a clearance, and with knowledge of classified current operations, has broken the law by disclosing what he knows to unauthorized recipients in the press.

It’s unlikely that we will be told someday that the leaker of the Petraeus directive took action because of sleepless nights and professional agony, as Newsweek reported in 2008 of one warrantless-wiretapping leaker who called the New York Times in 2004. In the case of the Petraeus directive, there is no apparent reason for a leaker to be motivated by concern about government overreach or civil rights. Perhaps the motive is disagreement with the policy.

But these leakers aren’t romantic heroes; they are people breaking their government’s security oaths. Thomas Tamm, the known wiretapping leaker, has been investigated (and lionized by the left) but never prosecuted. Yet it’s clear he broke his security oath by going to the media. It’s also clear from the Newsweek story that he came nowhere near exhausting his lawful options for registering concern about the wiretapping program. He apparently talked to a former colleague on the Senate Judiciary Committee — but not to his full chain of command at the Justice Department, to the Justice Department Inspector General, or to the intelligence oversight committee of either house of Congress.

James Risen, the Times reporter who broke the wiretapping story, was subpoenaed by Eric Holder last month to disclose the government sources for another of his classified revelations: this one involving information about U.S. efforts against Iran in his 2006 book State of War. Risen has refused to comply. His fate is uncertain; presumably, he might be jailed for contempt of court as Judith Miller was in the Valerie Plame Wilson case.

Miller ultimately agreed to testify after obtaining immunity. While the Plame Wilson case is not the best example of the real problems created by national-security leaks, the outcome with Miller was the right one for more genuinely damaging cases. The “journalist shield” exception should not protect government leakers who are committing felonies by the very act of disclosing classified information to the press.  Journalists should have to tell the authorities who they are.

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Way to Go, Senator Feinstein!

Dennis Blair “resigned” — that is to say, was shoved overboard, finally. As the Wall Street Journal report points out, the shoving is long overdue:

From the outset, Mr. Blair, 63 years old, a retired U.S. Navy admiral, proved to be an uneasy fit for the job. He made a series of decisions and statements that angered the White House—from a controversial appointment for the nation’s top intelligence analyst to recent statements that a new terrorist interrogation team should have questioned the alleged Christmas Day bomber.

Yes, that appointment was Chas Freeman, who “immediately drew fire from critics who said he was too close to the Saudi Arabian and Chinese governments. After that public-relations debacle, Mr. Blair maintained a much lower profile, speaking infrequently in public.” And that was some time ago, yet Obama continued to entrust our entire national-security apparatus to a man who wasn’t allowed to speak in public.

So what was the final straw? As Politico notes:

Word of Blair’s departure comes just two days after the release of a harshly-critical Senate report which identified 14 failures that preceded the Christmas Day incident in which Nigerian Omar Abdulmutallab allegedly attempted to bring down a U.S. airliner outside Detroit. The report put particular blame for the failure to head off the attack on a coordination unit that is part of Blair’s office, the National Counterterrorism Center.

Maybe it’s just a coincidence, but it’s nice to know that when clear-eyed lawmakers (e.g., the Senate Intelligence Committee, the GOP senators blocking the nomination of  Obama’s ambassador to Syria) act with resolve, the White House can be forced to retreat. (Let’s hope John Brennan – who comes up with loony ideas like engaging Hezbollah and now refers to the eternal capital of the Jewish state as “Al Quds, Jerusalem” – isn’t the replacement.)  But someone should ask the president: given the two near-miss terror attacks, do you regret not canning Blair earlier?

As for Feinstein, could she now do a report on the Justice Department? (At 36 percent, Eric Holder has the lowest approval of anyone in the administration, so maybe the White House would welcome an excuse to shove him overboard as well.) Then State? And while she’s at it, could she do an assessment of the phony UN sanctions?

Dennis Blair “resigned” — that is to say, was shoved overboard, finally. As the Wall Street Journal report points out, the shoving is long overdue:

From the outset, Mr. Blair, 63 years old, a retired U.S. Navy admiral, proved to be an uneasy fit for the job. He made a series of decisions and statements that angered the White House—from a controversial appointment for the nation’s top intelligence analyst to recent statements that a new terrorist interrogation team should have questioned the alleged Christmas Day bomber.

Yes, that appointment was Chas Freeman, who “immediately drew fire from critics who said he was too close to the Saudi Arabian and Chinese governments. After that public-relations debacle, Mr. Blair maintained a much lower profile, speaking infrequently in public.” And that was some time ago, yet Obama continued to entrust our entire national-security apparatus to a man who wasn’t allowed to speak in public.

So what was the final straw? As Politico notes:

Word of Blair’s departure comes just two days after the release of a harshly-critical Senate report which identified 14 failures that preceded the Christmas Day incident in which Nigerian Omar Abdulmutallab allegedly attempted to bring down a U.S. airliner outside Detroit. The report put particular blame for the failure to head off the attack on a coordination unit that is part of Blair’s office, the National Counterterrorism Center.

Maybe it’s just a coincidence, but it’s nice to know that when clear-eyed lawmakers (e.g., the Senate Intelligence Committee, the GOP senators blocking the nomination of  Obama’s ambassador to Syria) act with resolve, the White House can be forced to retreat. (Let’s hope John Brennan – who comes up with loony ideas like engaging Hezbollah and now refers to the eternal capital of the Jewish state as “Al Quds, Jerusalem” – isn’t the replacement.)  But someone should ask the president: given the two near-miss terror attacks, do you regret not canning Blair earlier?

As for Feinstein, could she now do a report on the Justice Department? (At 36 percent, Eric Holder has the lowest approval of anyone in the administration, so maybe the White House would welcome an excuse to shove him overboard as well.) Then State? And while she’s at it, could she do an assessment of the phony UN sanctions?

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DOJ Trial Attorney on Black Panther Case Resigns

Wow. We may finally learn the inside story of the New Black Panther case. This report explains:

A trial attorney with the Department of Justice’s Voting Rights Section has resigned, citing concerns about the government’s refusal to prosecute a case involving voter intimidation by the New Black Panther Party. A letter of resignation obtained by The Washington Examiner from a former Justice Department employee makes clear DOJ has refused to allow attorneys in the Voting Rights Section to testify before the congressionally-chartered bipartisan U.S. Commission on Civil Rights, despite subpoenas that could result in their being held in contempt.

In his letter of resignation, J. Christian Adams writes:

On the other hand, the events surrounding the dismissal of United States v. New Black Panther Party, et al., after the trial team sought and obtained an entry of default, has subjected me, Mr. Christopher Coates, and potentially at some point, all members of the team, to a subpoena from the United States Commission on Civil Rights. The subpoena is based on an explicit federal statute and seeks answers about why the case was dismissed.

I have incurred significant personal expense in retaining a number of separate attorneys and firms regarding this subpoena in order to protect my interests and advise me about my personal legal obligation to comply with the subpoena. Over the last few months, one of my attorneys has had multiple communications with Federal Programs regarding the subpoena. My attorney suggested to them that the Department should file a motion in district court to quash the subpoena and thereby resolve conclusively any question about my obligation to comply.

Months ago, my attorney advised the Department that a motion to quash would be welcome, and that I would assert no objection to the motion. Further, my attorney has explicitly sought to ascertain whether Executive Privilege has been invoked regarding the decisions of individuals not in the Voting Section to order the dismissal of the case. If Executive Privilege has been asserted, or will be, obviously I would not comply with the subpoena. These options would provide some conclusive legal certainly about the extent of my obligation to comply with a subpoena issued pursuant to a federal statute. Instead, we have been ordered not to comply with the subpoena, citing a federal regulation. [emphasis in original]

All this suggests that once he is free from the constraints of his superiors, Adams intends to tell his story. When he does, I expect we will hear that attorneys placed in political positions came up with fraudulent reasons for dismissing the case. I also think we’ll hear more about the role of the NAACP. Stay tuned. Fireworks coming forthwith.

Wow. We may finally learn the inside story of the New Black Panther case. This report explains:

A trial attorney with the Department of Justice’s Voting Rights Section has resigned, citing concerns about the government’s refusal to prosecute a case involving voter intimidation by the New Black Panther Party. A letter of resignation obtained by The Washington Examiner from a former Justice Department employee makes clear DOJ has refused to allow attorneys in the Voting Rights Section to testify before the congressionally-chartered bipartisan U.S. Commission on Civil Rights, despite subpoenas that could result in their being held in contempt.

In his letter of resignation, J. Christian Adams writes:

On the other hand, the events surrounding the dismissal of United States v. New Black Panther Party, et al., after the trial team sought and obtained an entry of default, has subjected me, Mr. Christopher Coates, and potentially at some point, all members of the team, to a subpoena from the United States Commission on Civil Rights. The subpoena is based on an explicit federal statute and seeks answers about why the case was dismissed.

I have incurred significant personal expense in retaining a number of separate attorneys and firms regarding this subpoena in order to protect my interests and advise me about my personal legal obligation to comply with the subpoena. Over the last few months, one of my attorneys has had multiple communications with Federal Programs regarding the subpoena. My attorney suggested to them that the Department should file a motion in district court to quash the subpoena and thereby resolve conclusively any question about my obligation to comply.

Months ago, my attorney advised the Department that a motion to quash would be welcome, and that I would assert no objection to the motion. Further, my attorney has explicitly sought to ascertain whether Executive Privilege has been invoked regarding the decisions of individuals not in the Voting Section to order the dismissal of the case. If Executive Privilege has been asserted, or will be, obviously I would not comply with the subpoena. These options would provide some conclusive legal certainly about the extent of my obligation to comply with a subpoena issued pursuant to a federal statute. Instead, we have been ordered not to comply with the subpoena, citing a federal regulation. [emphasis in original]

All this suggests that once he is free from the constraints of his superiors, Adams intends to tell his story. When he does, I expect we will hear that attorneys placed in political positions came up with fraudulent reasons for dismissing the case. I also think we’ll hear more about the role of the NAACP. Stay tuned. Fireworks coming forthwith.

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Obama Civil Rights Head Defends Black Panther Dismissal

On Friday, the much anticipated testimony of Civil Rights division head Thomas Perez before the U.S. Commission on Civil Rights was heard. As the Washington Times reported, Perez implicitly rebuked both the trial team that filed the case and the appellate section that endorsed the work of the trial team:

Assistant Attorney General Thomas E. Perez told the U.S. Commission on Civil Rights on Friday there was “insufficient evidence” to bring a civil complaint against members of the New Black Panther Party who disrupted a Philadelphia polling place in the 2008 general elections.

Mr. Perez, the only Justice Department official to testify publicly before the commission about the case, said that without sufficient proof that party members or the organization’s leader, Malik Zulu Shabazz, directed or controlled unlawful activities at the poll or made speeches to incite or produce lawless action, the complaint “would have likely failed” in court.

Perez declared that, of course, the Justice Department is committed to equal enforcement of the civil rights laws regardless of the race of the defendants. But one commissioner, independent Todd Gaziano, isn’t buying it:

I wanted to believe there were all sorts of wrongheaded but NOT racist reasons for the decision to dismiss the defendants. But there are several reasons for me to believe that a racist application of the voting rights laws might have been at play. There is some evidence that is already in the public domain. Examples of that are the fact that there apparently is a culture in the civil rights division where some senior section chiefs and other supervising attorneys have expressed the view and engaged in conduct supporting that view that they don’t believe the voting rights laws should ever be enforced against blacks and other minorities. Those reports have been in the press in the past year or so and it seems to me from Perez’ response that he has done nothing to investigate whether that culture or those caustic views really are held by some of his supervising attorneys.”

And: “There is other evidence. There is the absence of a satisfactory explanation for why they did dismiss the Black Panther suit. Reasonable people know that if there is a racist reason for something and a good reason for something, and the reason has been called into question, a decent law enforcement agency when called to explain would want to provide the reasonable explanation – and they still haven’t done that. Third, [former civil rights division Voting Section chief] Chris Coates’ farewell address suggests that there still are several people in the division who do not believe in a race neutral application of the voting rights laws. And it seemed from Perez’ responses to me today that he did nothing specific to investigate why Chris Coates believed that [about his former co-workers].

So what now? The Justice Department continues to stonewall, refusing to allow witnesses with direct knowledge of the decision-making process to testify and refusing to appoint a special prosecutor to litigate the issue of the commission’s subpoenas. It’s quite a performance by an administration that promised to insulate from politics the work of its career attorneys. Well, one possibility is that one or more members of the trial team will defy the orders of their superiors not to testify and come forward to defend their work and reveal the interference they encountered. Another is that if the House flips control, congressional oversight will finally be undertaken and the appropriate witnesses subpoenaed and required to testify. One senses that after Perez’s performance and his hear-no-evil-see-no-evil approach to widespread reports that his division does have a double standard for civil rights enforcement, conscientious career lawyers must be mulling their options.

On Friday, the much anticipated testimony of Civil Rights division head Thomas Perez before the U.S. Commission on Civil Rights was heard. As the Washington Times reported, Perez implicitly rebuked both the trial team that filed the case and the appellate section that endorsed the work of the trial team:

Assistant Attorney General Thomas E. Perez told the U.S. Commission on Civil Rights on Friday there was “insufficient evidence” to bring a civil complaint against members of the New Black Panther Party who disrupted a Philadelphia polling place in the 2008 general elections.

Mr. Perez, the only Justice Department official to testify publicly before the commission about the case, said that without sufficient proof that party members or the organization’s leader, Malik Zulu Shabazz, directed or controlled unlawful activities at the poll or made speeches to incite or produce lawless action, the complaint “would have likely failed” in court.

Perez declared that, of course, the Justice Department is committed to equal enforcement of the civil rights laws regardless of the race of the defendants. But one commissioner, independent Todd Gaziano, isn’t buying it:

I wanted to believe there were all sorts of wrongheaded but NOT racist reasons for the decision to dismiss the defendants. But there are several reasons for me to believe that a racist application of the voting rights laws might have been at play. There is some evidence that is already in the public domain. Examples of that are the fact that there apparently is a culture in the civil rights division where some senior section chiefs and other supervising attorneys have expressed the view and engaged in conduct supporting that view that they don’t believe the voting rights laws should ever be enforced against blacks and other minorities. Those reports have been in the press in the past year or so and it seems to me from Perez’ response that he has done nothing to investigate whether that culture or those caustic views really are held by some of his supervising attorneys.”

And: “There is other evidence. There is the absence of a satisfactory explanation for why they did dismiss the Black Panther suit. Reasonable people know that if there is a racist reason for something and a good reason for something, and the reason has been called into question, a decent law enforcement agency when called to explain would want to provide the reasonable explanation – and they still haven’t done that. Third, [former civil rights division Voting Section chief] Chris Coates’ farewell address suggests that there still are several people in the division who do not believe in a race neutral application of the voting rights laws. And it seemed from Perez’ responses to me today that he did nothing specific to investigate why Chris Coates believed that [about his former co-workers].

So what now? The Justice Department continues to stonewall, refusing to allow witnesses with direct knowledge of the decision-making process to testify and refusing to appoint a special prosecutor to litigate the issue of the commission’s subpoenas. It’s quite a performance by an administration that promised to insulate from politics the work of its career attorneys. Well, one possibility is that one or more members of the trial team will defy the orders of their superiors not to testify and come forward to defend their work and reveal the interference they encountered. Another is that if the House flips control, congressional oversight will finally be undertaken and the appropriate witnesses subpoenaed and required to testify. One senses that after Perez’s performance and his hear-no-evil-see-no-evil approach to widespread reports that his division does have a double standard for civil rights enforcement, conscientious career lawyers must be mulling their options.

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RE: No Executive Privilege Invoked

The Obama Justice Department has dropped all pretense of acting in a lawful, transparent mode with regard to the New Black Panther case. In a letter responding to the U.S. Commission on Civil Rights, the department in essence asserts: we don’t have to give you anything we don’t want to. And for this proposition, they cite not a single statute, regulation, Office of Legal Counsel opinion, or court decision. That is because there is none that would support the continued stonewalling.

Joseph H. Hunt of the Federal Programs Branch asserts that the “Department has designated Assistant Attorney for Civil Rights General Thomas E. Perez as the only Department witness to testify on its behalf before the Commission.” On what basis are they withholding percipient witnesses — including the trial team attorneys? Hunt doesn’t say. They just don’t want to. And Perez joined the department after the New Black Panther case was dismissed, so he really knows very little about the circumstances at issue. Yes, that is why he is the designee.

Hunt also makes clear that Perez is going to refuse to answer questions “concerning internal deliberation or other confidential matters.” Citation? None. Rationale? None. They don’t want to, I suppose.

Hunt writes in conclusion (with my comments in brackets):

Finally, we do not believe that the Commission’s subpoenas and requests override the well-established confidentiality interests in these types of materials that are integral to the Department’s discharge of its law-enforcement responsibilities. Thus, as we do in responding to congressional committees conducting oversight, we have sought to provide information to accommodate the Commission’s needs to the fullest extent consistent with our need to protect the confidentiality of the work product of our attorneys. [This is nonsense, by the way, since there is no attorney-client privilege between the executive branch and Congress; the American people are the "clients."] The President has not asserted executive privilege, nor do we believe the President is required to assert executive privilege [because? citation?] for the Department to take appropriate steps to protect the law-enforcement deliberative confidentiality interests [now he's just making stuff up] in this context. For the same reasons, we do not believe it is appropriate to appoint a special counsel. [The reason is circular -- because the department thinks it doesn't have to, it won't appoint a special counsel to enforce the commission's subpoenas. Yeah, no conflict of interest there, right?]

This is abject lawlessness, Nixonian in contempt for legal process. The Obama-Holder Justice Department is convinced that the executive branch can declare itself immune from scrutiny. The commission might choose to challenge the Justice Department in court, or wait for Congress to flip control and let a Republican majority subpoena the records and testimony. In the meantime, the Obama administration remains the least-transparent administration in history.

The Obama Justice Department has dropped all pretense of acting in a lawful, transparent mode with regard to the New Black Panther case. In a letter responding to the U.S. Commission on Civil Rights, the department in essence asserts: we don’t have to give you anything we don’t want to. And for this proposition, they cite not a single statute, regulation, Office of Legal Counsel opinion, or court decision. That is because there is none that would support the continued stonewalling.

Joseph H. Hunt of the Federal Programs Branch asserts that the “Department has designated Assistant Attorney for Civil Rights General Thomas E. Perez as the only Department witness to testify on its behalf before the Commission.” On what basis are they withholding percipient witnesses — including the trial team attorneys? Hunt doesn’t say. They just don’t want to. And Perez joined the department after the New Black Panther case was dismissed, so he really knows very little about the circumstances at issue. Yes, that is why he is the designee.

Hunt also makes clear that Perez is going to refuse to answer questions “concerning internal deliberation or other confidential matters.” Citation? None. Rationale? None. They don’t want to, I suppose.

Hunt writes in conclusion (with my comments in brackets):

Finally, we do not believe that the Commission’s subpoenas and requests override the well-established confidentiality interests in these types of materials that are integral to the Department’s discharge of its law-enforcement responsibilities. Thus, as we do in responding to congressional committees conducting oversight, we have sought to provide information to accommodate the Commission’s needs to the fullest extent consistent with our need to protect the confidentiality of the work product of our attorneys. [This is nonsense, by the way, since there is no attorney-client privilege between the executive branch and Congress; the American people are the "clients."] The President has not asserted executive privilege, nor do we believe the President is required to assert executive privilege [because? citation?] for the Department to take appropriate steps to protect the law-enforcement deliberative confidentiality interests [now he's just making stuff up] in this context. For the same reasons, we do not believe it is appropriate to appoint a special counsel. [The reason is circular -- because the department thinks it doesn't have to, it won't appoint a special counsel to enforce the commission's subpoenas. Yeah, no conflict of interest there, right?]

This is abject lawlessness, Nixonian in contempt for legal process. The Obama-Holder Justice Department is convinced that the executive branch can declare itself immune from scrutiny. The commission might choose to challenge the Justice Department in court, or wait for Congress to flip control and let a Republican majority subpoena the records and testimony. In the meantime, the Obama administration remains the least-transparent administration in history.

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No Executive Privilege Invoked by White House in Black Panther Case

The U.S. Commission on Civil Rights resumes its hearings tomorrow. On tap will be civil rights division chief Thomas Perez. Today the commission sent a letter to two Justice Department officials, which reads in part:

[T]his is to confirm your representation that there has been no formal assertion of executive privilege with regard to any of the items sought by the Commission pursuant to its discovery requests. As discussed, this matter needs to be clarified. In its response to the Commission’s discovery requests, the Department claimed deliberative process privilege with regard to the materials sought. As recognized by the courts, the deliberative process privilege is a subset of executive privilege and “does not shield documents that simply state or explain a decision the government has already made or protect the material that is purely factual, unless the material is so inextricably intertwined with the deliberative sections of documents that its disclosure would inevitably reveal the government’s deliberations.” See In re Sealed Case, 326 U.S. App. D.C. 276, 284, 121 F.3d 729, 737 (1997).

In short, the Justice Department can’t have it both ways. If Obama has not invoked executive privilege, there is no legal basis for refusing any requested documents or for declining to answer the commission’s questions completely. In prior correspondence to the Justice Department, the commission cited binding precedent from the Office of Legal Counsel — which presumably has not changed its view since Eric Holder arrived – that unless the president or a top official invokes executive privilege, there is no other statutory or common law basis available to the department that would justify refusing to disclose information. And indeed, there is a federal law requiring the executive branch to co-operate with the commission’s work.

So what will Perez do tomorrow? It remains to be seen whether he will continue to stonewall as the commission presses for a detailed explanation as to why the case was dismissed and who played a role in ordering the dismissal. Will he suggest that the department’s trial team of lawyers was incompetent or derelict in bringing the case against the New Black Panther Party? Surely the professional staff at Justice, including those attorneys in the appellate section that endorsed the trial team’s recommendation, would find that quite shocking. And if those career lawyers were not mistaken in their assessment of the law and the facts, then what was the basis for dismissing the case? Moreover, is this Justice Department committed to enforcing the civil rights laws even when minorities are the perpetrators of voter intimidation? It should be an interesting proceeding tomorrow.

The U.S. Commission on Civil Rights resumes its hearings tomorrow. On tap will be civil rights division chief Thomas Perez. Today the commission sent a letter to two Justice Department officials, which reads in part:

[T]his is to confirm your representation that there has been no formal assertion of executive privilege with regard to any of the items sought by the Commission pursuant to its discovery requests. As discussed, this matter needs to be clarified. In its response to the Commission’s discovery requests, the Department claimed deliberative process privilege with regard to the materials sought. As recognized by the courts, the deliberative process privilege is a subset of executive privilege and “does not shield documents that simply state or explain a decision the government has already made or protect the material that is purely factual, unless the material is so inextricably intertwined with the deliberative sections of documents that its disclosure would inevitably reveal the government’s deliberations.” See In re Sealed Case, 326 U.S. App. D.C. 276, 284, 121 F.3d 729, 737 (1997).

In short, the Justice Department can’t have it both ways. If Obama has not invoked executive privilege, there is no legal basis for refusing any requested documents or for declining to answer the commission’s questions completely. In prior correspondence to the Justice Department, the commission cited binding precedent from the Office of Legal Counsel — which presumably has not changed its view since Eric Holder arrived – that unless the president or a top official invokes executive privilege, there is no other statutory or common law basis available to the department that would justify refusing to disclose information. And indeed, there is a federal law requiring the executive branch to co-operate with the commission’s work.

So what will Perez do tomorrow? It remains to be seen whether he will continue to stonewall as the commission presses for a detailed explanation as to why the case was dismissed and who played a role in ordering the dismissal. Will he suggest that the department’s trial team of lawyers was incompetent or derelict in bringing the case against the New Black Panther Party? Surely the professional staff at Justice, including those attorneys in the appellate section that endorsed the trial team’s recommendation, would find that quite shocking. And if those career lawyers were not mistaken in their assessment of the law and the facts, then what was the basis for dismissing the case? Moreover, is this Justice Department committed to enforcing the civil rights laws even when minorities are the perpetrators of voter intimidation? It should be an interesting proceeding tomorrow.

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The Underwelming Kagan

Joshua Green examines why liberals are nervous about Elena Kagan. He explains:

The same thing that makes her confirmation so likely — the lack of a paper trail for opponents to parse and attack — has also become a prime source of concern for her own side. There’s little hard evidence to reassure liberals that she’ll adjudicate in the way they would prefer. Kagan’s lack of a judicial record and scant legal writing during a career spent mostly in politics and the deanship of Harvard Law School leave open the possibility she’ll turn out to be more conservative than advertised. … The liberal complaint against Kagan is threefold: that she wasn’t sufficiently aggressive in hiring women and minorities to the Harvard faculty; that she took worrisome positions on executive power, the war on terrorism, and corporate campaign spending; and that she isn’t the counterpart to Antonin Scalia that the left has long desired.

Green makes a comparison to David Souter, the quintessential stealth candidate who turned out to be not at all what the president who nominated him expected.

Most interesting is that the left — despite the silly Obama spin — recognizes that “she isn’t the counterpart to Antonin Scalia that the left has long desired.” Perhaps they are worried her intellect is not all that dazzling? Well, we can say she’s not demonstrated the sort of brilliance and scholarship or fine writing that the left understands is a prerequisite to do battle on the Court.

She has had a total of six Supreme Court arguments in her short tenure as solicitor general. It took a full six months before she gave her first argument in Citizens United, bypassing key cases, including Ricci (the New Haven firefighter case) and a high-profile challenge to the Voting Rights Act. Sources within the Justice Department report that Kagan was preparing to argue the Voting Rights Act case but ultimately gave way to her deputy.

Does this sound like a proficient, accomplished “lawyer’s lawyer”? Not even Kagan is high on her own advocacy abilities. Her outing in Citizens United was rocky at best, getting the worst of questioning from both Justices Scalia and Kennedy (whom she is tasked by the left with persuading once she is confirmed). At an awards ceremony at Georgetown Law School honoring Kennedy earlier this month, Kagan spoke, and her comments are revealing — and should be bracing to the left:

At one point, Kagan raised audience eyebrows when she said she would remember an exchange she had with Kennedy “for the rest of my career as an advocate.” …

That memorable exchange with Kennedy that Kagan was recalling, by the way, offered a glimpse into how Kagan handled her first oral argument before the high court — or any court — last September in Citizens United v. Federal Election Commission. That’s the landmark campaign finance case that Kagan lost 5-4, with Kennedy writing the majority.

In spite of her earlier praise for Kennedy, Kagan told the Georgetown audience that the justice had “a bit of a bad habit,” namely that he asks advocates about cases that are not mentioned anywhere in the briefs for the case. Kennedy did just that in Citizens United when he asked Kagan whether something she had just said was “inconsistent with the whole line of cases that began with Thornhill v. Alabama and Coates v. Cincinnati.” … Perhaps many advocates know those cases, Kagan said, but “I at any rate did not.” She added, “There was a look of panic on my face.”

Without knowing for sure, Kagan said she believes that Kennedy “saw in the flash of an instant that … I really had no clue” about the cases he was asking her about. Instead of waiting for her painful reply, Kennedy quickly went on to explain the Thornhill line of cases — which relate to facial challenges to statutes under the First Amendment — with enough detail that Kagan was able to recover and answer the question.

The left has good reason to worry. Kagan will need to elicit respect, not pity, from Kennedy once she is confirmed if she is to fulfill the left’s fondest hopes. Maybe she will grow into the job, but if it took six months to get prepared for her first argument before the Court, how long will it take before she is an influential force on the Court? Will she ever be?

Joshua Green examines why liberals are nervous about Elena Kagan. He explains:

The same thing that makes her confirmation so likely — the lack of a paper trail for opponents to parse and attack — has also become a prime source of concern for her own side. There’s little hard evidence to reassure liberals that she’ll adjudicate in the way they would prefer. Kagan’s lack of a judicial record and scant legal writing during a career spent mostly in politics and the deanship of Harvard Law School leave open the possibility she’ll turn out to be more conservative than advertised. … The liberal complaint against Kagan is threefold: that she wasn’t sufficiently aggressive in hiring women and minorities to the Harvard faculty; that she took worrisome positions on executive power, the war on terrorism, and corporate campaign spending; and that she isn’t the counterpart to Antonin Scalia that the left has long desired.

Green makes a comparison to David Souter, the quintessential stealth candidate who turned out to be not at all what the president who nominated him expected.

Most interesting is that the left — despite the silly Obama spin — recognizes that “she isn’t the counterpart to Antonin Scalia that the left has long desired.” Perhaps they are worried her intellect is not all that dazzling? Well, we can say she’s not demonstrated the sort of brilliance and scholarship or fine writing that the left understands is a prerequisite to do battle on the Court.

She has had a total of six Supreme Court arguments in her short tenure as solicitor general. It took a full six months before she gave her first argument in Citizens United, bypassing key cases, including Ricci (the New Haven firefighter case) and a high-profile challenge to the Voting Rights Act. Sources within the Justice Department report that Kagan was preparing to argue the Voting Rights Act case but ultimately gave way to her deputy.

Does this sound like a proficient, accomplished “lawyer’s lawyer”? Not even Kagan is high on her own advocacy abilities. Her outing in Citizens United was rocky at best, getting the worst of questioning from both Justices Scalia and Kennedy (whom she is tasked by the left with persuading once she is confirmed). At an awards ceremony at Georgetown Law School honoring Kennedy earlier this month, Kagan spoke, and her comments are revealing — and should be bracing to the left:

At one point, Kagan raised audience eyebrows when she said she would remember an exchange she had with Kennedy “for the rest of my career as an advocate.” …

That memorable exchange with Kennedy that Kagan was recalling, by the way, offered a glimpse into how Kagan handled her first oral argument before the high court — or any court — last September in Citizens United v. Federal Election Commission. That’s the landmark campaign finance case that Kagan lost 5-4, with Kennedy writing the majority.

In spite of her earlier praise for Kennedy, Kagan told the Georgetown audience that the justice had “a bit of a bad habit,” namely that he asks advocates about cases that are not mentioned anywhere in the briefs for the case. Kennedy did just that in Citizens United when he asked Kagan whether something she had just said was “inconsistent with the whole line of cases that began with Thornhill v. Alabama and Coates v. Cincinnati.” … Perhaps many advocates know those cases, Kagan said, but “I at any rate did not.” She added, “There was a look of panic on my face.”

Without knowing for sure, Kagan said she believes that Kennedy “saw in the flash of an instant that … I really had no clue” about the cases he was asking her about. Instead of waiting for her painful reply, Kennedy quickly went on to explain the Thornhill line of cases — which relate to facial challenges to statutes under the First Amendment — with enough detail that Kagan was able to recover and answer the question.

The left has good reason to worry. Kagan will need to elicit respect, not pity, from Kennedy once she is confirmed if she is to fulfill the left’s fondest hopes. Maybe she will grow into the job, but if it took six months to get prepared for her first argument before the Court, how long will it take before she is an influential force on the Court? Will she ever be?

Read Less




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