Commentary Magazine


Topic: Office of Legal

Holder — a People Pleaser!

Another entry in the Eric Holder “Can you believe this?” file comes with this report (h/t Main Justice):

In January, after a review by the Office of Professional Responsibility concluded that the authors of the torture memos had committed professional misconduct, Holder allowed the supervisor of that office, David Margolis, to overturn the committee’s conclusion and absolve the lawyers of wrongdoing. Sources close to Holder say that he was disappointed by Margolis’s decision and believed the finding of misconduct was correct — but was unwilling to overrule a nonpolitical employee on such a sensitive issue.

Disappointed? Indeed, he must have been, for the entire mission of DOJ in the first two years of the administration seems to have been defined by a “not Bush” or “get Bushies” mentality. Don’t let the civil rights laws be applied against Black defendants. Don’t follow the Office of Legal Counsel opinion on DC voting rights. Release detainee-abuse photos. Go after John Yoo and Jay Bybee. The problem, however, was that each of these highly politicized decisions was legally flawed and politically untenable even to those in the Department. After all, career attorneys at DOJ did not welcome the investigation of one set of lawyers by a new administration, which took issue with the policy calls of its predecessors.

The rest of the lengthy piece is mostly a rehash of the stories we have heard before — the White House vs. DOJ on terror policy and self-congratulation about the Obama team’s record on civil rights (well, for certain types of cases). But this sums up Holder’s central flaw fairly well and explains why, after replete evidence of his role in the pardon of Marc Rich and Puerto Rican terrorists, he never should have been confirmed:

Like any good political appointee, he was prepared to defend the policy whether he liked it or not. And in that case, maybe it didn’t matter what he supported; promoting the policy was supporting it. I was reminded of something one of his friends had told me, a former DOJ official who has known Holder since the beginning of his career: “Eric has this instinct to please. That’s his weakness. He doesn’t have to be told what to do — he’s willing to do whatever it takes. It’s his survival mechanism in Washington.”

But it makes for a rotten attorney general. And in the case of the Obama administration, it made for a top lawyer far too willing to accommodate the worst leftist impulses in the White House and in the increasingly politicized ranks of the Justice Department. Maybe Holder should start spending more time with his family.

Another entry in the Eric Holder “Can you believe this?” file comes with this report (h/t Main Justice):

In January, after a review by the Office of Professional Responsibility concluded that the authors of the torture memos had committed professional misconduct, Holder allowed the supervisor of that office, David Margolis, to overturn the committee’s conclusion and absolve the lawyers of wrongdoing. Sources close to Holder say that he was disappointed by Margolis’s decision and believed the finding of misconduct was correct — but was unwilling to overrule a nonpolitical employee on such a sensitive issue.

Disappointed? Indeed, he must have been, for the entire mission of DOJ in the first two years of the administration seems to have been defined by a “not Bush” or “get Bushies” mentality. Don’t let the civil rights laws be applied against Black defendants. Don’t follow the Office of Legal Counsel opinion on DC voting rights. Release detainee-abuse photos. Go after John Yoo and Jay Bybee. The problem, however, was that each of these highly politicized decisions was legally flawed and politically untenable even to those in the Department. After all, career attorneys at DOJ did not welcome the investigation of one set of lawyers by a new administration, which took issue with the policy calls of its predecessors.

The rest of the lengthy piece is mostly a rehash of the stories we have heard before — the White House vs. DOJ on terror policy and self-congratulation about the Obama team’s record on civil rights (well, for certain types of cases). But this sums up Holder’s central flaw fairly well and explains why, after replete evidence of his role in the pardon of Marc Rich and Puerto Rican terrorists, he never should have been confirmed:

Like any good political appointee, he was prepared to defend the policy whether he liked it or not. And in that case, maybe it didn’t matter what he supported; promoting the policy was supporting it. I was reminded of something one of his friends had told me, a former DOJ official who has known Holder since the beginning of his career: “Eric has this instinct to please. That’s his weakness. He doesn’t have to be told what to do — he’s willing to do whatever it takes. It’s his survival mechanism in Washington.”

But it makes for a rotten attorney general. And in the case of the Obama administration, it made for a top lawyer far too willing to accommodate the worst leftist impulses in the White House and in the increasingly politicized ranks of the Justice Department. Maybe Holder should start spending more time with his family.

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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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Flotsam and Jetsam

Rep. Bart Stupak’s seat is now a “toss up.” The ObamaCare vote may turn out to be historic after all. Nate Silver proclaims: “Generic Ballot Points Toward Possible 50+ Seat Loss For Democrats.”

Charlie Cook: “As we head toward November’s mid-term elections, the outlook remains dire for Democrats. For the trajectory of this campaign season to change in their favor, two things need to happen — unemployment must drop significantly, and the public’s attitude toward the new health care reform law must become much more positive. Neither seems likely, though. Increasingly, it appears that for Democrats to turn things around, Republicans would have to snatch defeat from the jaws of victory, or a ‘black swan’ — an extraordinarily unexpected event that causes a tremendous change — would have to swim to the rescue of the president’s party.”

James Jones‘s underwhelming description of the state of U.S.-Israeli relations: “ongoing and fine and continuous.” Continuous? Well, good to know we’re not ending the relationship — and at least we’re past the point where the Obami can say “rock solid” with a straight face. Meanwhile, the White House denies that there has been any change in its policy toward the Dimona nuclear reactor. It’s hard to know what to believe at this point, which itself is evidence of the shabby state of the U.S.-Israel relationship.

The best thing about the Obami’s Israel policy? The lack of consensus and total disorganization. “Although the public fireworks between top U.S. and Israeli officials may have died down in recent days, a fully fledged debate has erupted inside the Obama administration over how to best bring Middle East peace talks to fruition, let alone a successful conclusion.” Thank goodness.

Sarah Palin declares that “this administration alienates our friends. They treated Afghanistan President Hamid Karzai poorly  and acted surprised when he reacted in kind. And they escalated a minor zoning decision into a major breach with Israel, our closest ally in the Middle East.  Folks, someone needs to remind the President: Jerusalem is not a settlement. Israel is our friend. And the critical nuclear concerns of our time are North Korea, who has nuclear weapons, and Iran, who wants them. So, ‘yes we can’ kowtow to our enemies and publicly criticize our allies.Yes, we can. But someone ought to tell the President and the Left that just because we can doesn’t mean we should.”

How’s that “imposed peace deal” going to work again? “Officials say Gaza’s only power plant has stopped operating because of a lack of fuel caused by the ongoing dispute between Palestinian political rivals. Gaza’s Islamic militant Hamas rulers and their Western-backed West Bank rivals have argued over who should pay for the fuel for the plant.”

Jamie Fly and John Noonan on nuclear nonproliferation: “Our unwillingness to penalize countries such as Iran, North Korea, and Syria for their illicit activities only empowers them. It sends the message to other states potentially seeking nuclear weapons that the path to a weapon can be pursued with few repercussions. If President Obama were truly concerned about the future of the international nonproliferation regime, he would follow his recent disarmament ‘accomplishments’ with some serious action to ensure that rogue regimes realize that there is a price to be paid by those who choose to pursue nuclear weapons.”

John Yoo‘s prediction on Obama’s Supreme Court pick: “The president’s low approval ratings and the resurgence of Republican electoral victories in New Jersey, Virginia, and, most importantly, Massachusetts, means that Obama will not pick an ideological warrior who will spark a fight in the Senate. No Dawn Johnsen’s or Larry Tribe’s here. Appointing someone on the extreme left of the Democratic party would be a political gift to the Republicans — it would only continue the drive to the left that is promising big gains for the Republicans in the November election and would frustrate Obama’s other priorities.”

Meanwhile, Obama withdraws the nomination of Dawn Johnsen, who had been tapped to head the Office of Legal Counsel. Could it be that the Democrats don’t want any knock-down-drag-out-fights over left-wing  ideologues?

Could a Republican win the special House election in Hawaii? “This is a three-way race featuring two Democrats, former Rep. Ed Case and Hawaii State Senate President Colleen Hanabusa, squaring off against Republican Charles Djou. It is a winner-take-all contest between the three candidates, competing to replace Neil Abercrombie, who left Congress to run for governor. . .Right now, the race is close: according to a Democratic source, the Democratic Congressional Campaign Committee has conducted an internal poll showing Case at 32%, Djou at 32%, Hanabusa at 27%, and 9% undecided.” Well, like they say, as goes Massachusetts so goes Hawaii. Not really, but this year it might be true.

Rep. Bart Stupak’s seat is now a “toss up.” The ObamaCare vote may turn out to be historic after all. Nate Silver proclaims: “Generic Ballot Points Toward Possible 50+ Seat Loss For Democrats.”

Charlie Cook: “As we head toward November’s mid-term elections, the outlook remains dire for Democrats. For the trajectory of this campaign season to change in their favor, two things need to happen — unemployment must drop significantly, and the public’s attitude toward the new health care reform law must become much more positive. Neither seems likely, though. Increasingly, it appears that for Democrats to turn things around, Republicans would have to snatch defeat from the jaws of victory, or a ‘black swan’ — an extraordinarily unexpected event that causes a tremendous change — would have to swim to the rescue of the president’s party.”

James Jones‘s underwhelming description of the state of U.S.-Israeli relations: “ongoing and fine and continuous.” Continuous? Well, good to know we’re not ending the relationship — and at least we’re past the point where the Obami can say “rock solid” with a straight face. Meanwhile, the White House denies that there has been any change in its policy toward the Dimona nuclear reactor. It’s hard to know what to believe at this point, which itself is evidence of the shabby state of the U.S.-Israel relationship.

The best thing about the Obami’s Israel policy? The lack of consensus and total disorganization. “Although the public fireworks between top U.S. and Israeli officials may have died down in recent days, a fully fledged debate has erupted inside the Obama administration over how to best bring Middle East peace talks to fruition, let alone a successful conclusion.” Thank goodness.

Sarah Palin declares that “this administration alienates our friends. They treated Afghanistan President Hamid Karzai poorly  and acted surprised when he reacted in kind. And they escalated a minor zoning decision into a major breach with Israel, our closest ally in the Middle East.  Folks, someone needs to remind the President: Jerusalem is not a settlement. Israel is our friend. And the critical nuclear concerns of our time are North Korea, who has nuclear weapons, and Iran, who wants them. So, ‘yes we can’ kowtow to our enemies and publicly criticize our allies.Yes, we can. But someone ought to tell the President and the Left that just because we can doesn’t mean we should.”

How’s that “imposed peace deal” going to work again? “Officials say Gaza’s only power plant has stopped operating because of a lack of fuel caused by the ongoing dispute between Palestinian political rivals. Gaza’s Islamic militant Hamas rulers and their Western-backed West Bank rivals have argued over who should pay for the fuel for the plant.”

Jamie Fly and John Noonan on nuclear nonproliferation: “Our unwillingness to penalize countries such as Iran, North Korea, and Syria for their illicit activities only empowers them. It sends the message to other states potentially seeking nuclear weapons that the path to a weapon can be pursued with few repercussions. If President Obama were truly concerned about the future of the international nonproliferation regime, he would follow his recent disarmament ‘accomplishments’ with some serious action to ensure that rogue regimes realize that there is a price to be paid by those who choose to pursue nuclear weapons.”

John Yoo‘s prediction on Obama’s Supreme Court pick: “The president’s low approval ratings and the resurgence of Republican electoral victories in New Jersey, Virginia, and, most importantly, Massachusetts, means that Obama will not pick an ideological warrior who will spark a fight in the Senate. No Dawn Johnsen’s or Larry Tribe’s here. Appointing someone on the extreme left of the Democratic party would be a political gift to the Republicans — it would only continue the drive to the left that is promising big gains for the Republicans in the November election and would frustrate Obama’s other priorities.”

Meanwhile, Obama withdraws the nomination of Dawn Johnsen, who had been tapped to head the Office of Legal Counsel. Could it be that the Democrats don’t want any knock-down-drag-out-fights over left-wing  ideologues?

Could a Republican win the special House election in Hawaii? “This is a three-way race featuring two Democrats, former Rep. Ed Case and Hawaii State Senate President Colleen Hanabusa, squaring off against Republican Charles Djou. It is a winner-take-all contest between the three candidates, competing to replace Neil Abercrombie, who left Congress to run for governor. . .Right now, the race is close: according to a Democratic source, the Democratic Congressional Campaign Committee has conducted an internal poll showing Case at 32%, Djou at 32%, Hanabusa at 27%, and 9% undecided.” Well, like they say, as goes Massachusetts so goes Hawaii. Not really, but this year it might be true.

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Obama’s Thugocracy

The White House chests are puffed, and they are marveling at their political muscle. Health care can be rammed through, and Israel can be bullied — so what else to do? Ah, run roughshod over the Senate. The Hill reports:

President Barack Obama on Saturday wielded his recess appointment powers for the first time, clearing 15 nominees to assume posts that have remained vacant for months due to insurmountable congressional roadblocks.

Among the 15 named just days before the Senate departs for Easter recess are Craig Becker and Mark Pearce, the White House’s two, hotly contested nominees for the National Labor Relations Board.

Big Labor bosses will coo approvingly over the NLRB appointments. After all, the SEIU and AFL-CIO’s lawyer is now going to make labor law. Meanwhile, any pretense of bipartisanship or moderation has evaporated:

Senate GOP Leader Mitch McConnell (Ky.) condemned the administration’s move on Saturday, adding that Becker’s appointment “is yet another episode of [the president] choosing a partisan path despite bipartisan opposition.”

“The president previously held that appointing an individual in this manner meant that the nominee would have ‘less credibility,’ and that assessment certainly fits this nomination,” the GOP leader said. “This is a purely partisan move that will make a traditionally bipartisan labor board an unbalanced agenda-driven panel.”

The only surprise: the radical lawyer Dawn Johnsen was not named to the Office of Legal Counsel. Perhaps the Obami have had enough of the accusations that the Justice Department, far from depoliticizing, has become a hotbed of ideologues.

This is the reality of Obama — unbending, ideologically extreme, and contemptuous of the other branches. He has revealed himself to be precisely what liberals used to rail against — until they got the levers of power. The Chicago pols are certainly plying their trade.

The White House chests are puffed, and they are marveling at their political muscle. Health care can be rammed through, and Israel can be bullied — so what else to do? Ah, run roughshod over the Senate. The Hill reports:

President Barack Obama on Saturday wielded his recess appointment powers for the first time, clearing 15 nominees to assume posts that have remained vacant for months due to insurmountable congressional roadblocks.

Among the 15 named just days before the Senate departs for Easter recess are Craig Becker and Mark Pearce, the White House’s two, hotly contested nominees for the National Labor Relations Board.

Big Labor bosses will coo approvingly over the NLRB appointments. After all, the SEIU and AFL-CIO’s lawyer is now going to make labor law. Meanwhile, any pretense of bipartisanship or moderation has evaporated:

Senate GOP Leader Mitch McConnell (Ky.) condemned the administration’s move on Saturday, adding that Becker’s appointment “is yet another episode of [the president] choosing a partisan path despite bipartisan opposition.”

“The president previously held that appointing an individual in this manner meant that the nominee would have ‘less credibility,’ and that assessment certainly fits this nomination,” the GOP leader said. “This is a purely partisan move that will make a traditionally bipartisan labor board an unbalanced agenda-driven panel.”

The only surprise: the radical lawyer Dawn Johnsen was not named to the Office of Legal Counsel. Perhaps the Obami have had enough of the accusations that the Justice Department, far from depoliticizing, has become a hotbed of ideologues.

This is the reality of Obama — unbending, ideologically extreme, and contemptuous of the other branches. He has revealed himself to be precisely what liberals used to rail against — until they got the levers of power. The Chicago pols are certainly plying their trade.

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Bayh Gets Caught

Dan Coats in an interview on Fred Thompson’s radio show explained his argument to the voters as to why Indiana Sen. Evan Bayh should not be re-elected:

“He talked a good game back at home, but when push came to shove, he was there with the liberals, there with Obama every time,” Coats said. On health care, Bayh was “catering to the liberals that he needed to cater to and he wasn’t listening to people in Indiana.”

Coats has a good deal of material to work with. Bayh voted for the stimulus, the Obama budget, and ObamaCare. He’s voted to confirm every nominee, from Sonia Sotomayor to the legal extremist Dawn Johnsen (for head of the Office of Legal Counsel) to Craig Becker for the National Labor Relations Board. He was a previous sponsor of card-check legislation, although he managed to stay noncommittal last year. In sum, Bayh was unwilling to oppose the liberal troika of Reid-Pelosi-Obama on a single meaningful domestic-policy item.

It is an argument that is likely to be repeated in states like Arkansas, Nevada, and Colorado, where challengers will make the case that the Democratic incumbent has facilitated the policies that voters back home oppose by large numbers. (In Colorado, for example, Michael Bennet is getting slammed by his opponent for his vote to confirm Becker: “Former Lt. Gov. Jane Norton, the Republican front-runner, said that while other Democrats were willing to buck President Obama’s choice, Bennet’s vote demonstrates he would provide ‘a rubber stamp’ for legislation commonly referred to as ‘card check.’”)

Recall that in Virginia, Bob McDonnell, running against a Democrat who had never cast a single vote in Congress in favor of an Obama agenda item, was able to win by a huge margin by making the case that Washington had strayed too far to the Left and that cap-and-trade, ObamaCare, card check, and takes hikes would be disastrous for his state’s economy. Scott Brown was able to make a similar argument against an opponent who similarly was not burdened by a congressional voting record in favor of the Obama agenda.

How much more effective will that argument be against Democratic incumbents like Bayh who are burdened not only by the “D” next to their name but also a voting record that fits the Republicans’ narrative? Incumbents like Bayh have a choice: start voting against the liberal agenda or hope voters lose their antipathy to the Reid-Pelosi-Obama agenda. The latter sounds like wishful thinking; the former will require a quick about-face. You can see why the Bayh seat and those of many other Democrats are now in play.

Dan Coats in an interview on Fred Thompson’s radio show explained his argument to the voters as to why Indiana Sen. Evan Bayh should not be re-elected:

“He talked a good game back at home, but when push came to shove, he was there with the liberals, there with Obama every time,” Coats said. On health care, Bayh was “catering to the liberals that he needed to cater to and he wasn’t listening to people in Indiana.”

Coats has a good deal of material to work with. Bayh voted for the stimulus, the Obama budget, and ObamaCare. He’s voted to confirm every nominee, from Sonia Sotomayor to the legal extremist Dawn Johnsen (for head of the Office of Legal Counsel) to Craig Becker for the National Labor Relations Board. He was a previous sponsor of card-check legislation, although he managed to stay noncommittal last year. In sum, Bayh was unwilling to oppose the liberal troika of Reid-Pelosi-Obama on a single meaningful domestic-policy item.

It is an argument that is likely to be repeated in states like Arkansas, Nevada, and Colorado, where challengers will make the case that the Democratic incumbent has facilitated the policies that voters back home oppose by large numbers. (In Colorado, for example, Michael Bennet is getting slammed by his opponent for his vote to confirm Becker: “Former Lt. Gov. Jane Norton, the Republican front-runner, said that while other Democrats were willing to buck President Obama’s choice, Bennet’s vote demonstrates he would provide ‘a rubber stamp’ for legislation commonly referred to as ‘card check.’”)

Recall that in Virginia, Bob McDonnell, running against a Democrat who had never cast a single vote in Congress in favor of an Obama agenda item, was able to win by a huge margin by making the case that Washington had strayed too far to the Left and that cap-and-trade, ObamaCare, card check, and takes hikes would be disastrous for his state’s economy. Scott Brown was able to make a similar argument against an opponent who similarly was not burdened by a congressional voting record in favor of the Obama agenda.

How much more effective will that argument be against Democratic incumbents like Bayh who are burdened not only by the “D” next to their name but also a voting record that fits the Republicans’ narrative? Incumbents like Bayh have a choice: start voting against the liberal agenda or hope voters lose their antipathy to the Reid-Pelosi-Obama agenda. The latter sounds like wishful thinking; the former will require a quick about-face. You can see why the Bayh seat and those of many other Democrats are now in play.

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Flotsam and Jetsam

Noemie Emery says the elite pundits blew it in hawking Obama’s candidacy: “Could it be that The One has misjudged both the times and the country?; that he made a strategic mistake in pushing for health care (and a tactical one in trusting the Congress)?; that he created a nightmare for most in his party, who face epic losses this year? … To acknowledge this is to indict their own judgment, to face the fact they themselves may be less than insightful, that ‘talking like us’ means next to nothing, and that writing for magazines doesn’t equip one for greatness, or leadership. In fact, it only equips one to write for more magazines.”

Rep. Bart Stupak is holding firm for now. He isn’t buying the Reid–Ben Nelson abortion compromise language, “arguing that the Senate bill would effectively allow millions to buy insurance plans covering abortion because of federal subsidies and break the long-standing Hyde rule preventing federal funding of abortions — even if the federal government isn’t signing the checks directly, as it would have with the now-dead public insurance option.” The Democrats claim they have enough votes even without Stupak and pro-life Democrats. Really? We’ll find out.

Talking Points Memo or American Spectator? “Most campaign-type Democrats think Coakley will pull out a victory Tuesday despite a lackluster campaign and independents and undecideds rapidly slipping from their column, but some openly warn that a close race in the Bay State is a real warning sign for November’s mid-term elections.”

Barack Obama or Newt Gingrich? “That’s what’s been lost this year … that whole sense of changing how Washington works.”

A former Justice Department official doesn’t think much of the Obama team’s flurry of excuses for not responding to discovery requests in the New Black Panther Party case: “They are relying on privileges that the Office of Legal Counsel says do not exist. … There is no privilege, for instance, saying that the Justice Department will not identify personnel working on the case. … Generally, a number of these privileges [are ones] I’ve literally never heard of.” Well, who ever heard of executive privilege for a social secretary?

New Hampshire once looked like a potential lost seat for the GOP. Not anymore. The Republican front-runner, Kelly Ayotte, leads Paul Hodes by 9 points in the latest poll.

Good for him: “The top Senate Democrat in charge of military affairs on Wednesday ended a three-day trip to Afghanistan with a message of optimism that the U.S. mission can still succeed. Sen. Carl Levin (D-Mich.), chairman of the Armed Services Committee, said he sees a higher confidence among U.S. military leaders and Afghan leaders that the war against insurgents can be successful.” And a lesson for Obama: if he leads on national security, his base will follow.

Politico has a forum on: “Massachusetts: Does the closer-than-anyone-expected race jeopardize the Democratic agenda?” If you have to ask, the answer is yes.

All that groveling for nothing: “Although a State Department China hand described constructive U.S.-China cooperation on Iran in Hill testimony today, there are more signs that China is trying to put the breaks on moving forward with new Iran sanctions at this time. … But a diplomatic source tells POLITICO that China is saying its political director may not necessarily be able to come to a meeting of the P5+1 — the five permanent members of the UN Security Council plus Germany — that is scheduled for next weekend in New York.”

Noemie Emery says the elite pundits blew it in hawking Obama’s candidacy: “Could it be that The One has misjudged both the times and the country?; that he made a strategic mistake in pushing for health care (and a tactical one in trusting the Congress)?; that he created a nightmare for most in his party, who face epic losses this year? … To acknowledge this is to indict their own judgment, to face the fact they themselves may be less than insightful, that ‘talking like us’ means next to nothing, and that writing for magazines doesn’t equip one for greatness, or leadership. In fact, it only equips one to write for more magazines.”

Rep. Bart Stupak is holding firm for now. He isn’t buying the Reid–Ben Nelson abortion compromise language, “arguing that the Senate bill would effectively allow millions to buy insurance plans covering abortion because of federal subsidies and break the long-standing Hyde rule preventing federal funding of abortions — even if the federal government isn’t signing the checks directly, as it would have with the now-dead public insurance option.” The Democrats claim they have enough votes even without Stupak and pro-life Democrats. Really? We’ll find out.

Talking Points Memo or American Spectator? “Most campaign-type Democrats think Coakley will pull out a victory Tuesday despite a lackluster campaign and independents and undecideds rapidly slipping from their column, but some openly warn that a close race in the Bay State is a real warning sign for November’s mid-term elections.”

Barack Obama or Newt Gingrich? “That’s what’s been lost this year … that whole sense of changing how Washington works.”

A former Justice Department official doesn’t think much of the Obama team’s flurry of excuses for not responding to discovery requests in the New Black Panther Party case: “They are relying on privileges that the Office of Legal Counsel says do not exist. … There is no privilege, for instance, saying that the Justice Department will not identify personnel working on the case. … Generally, a number of these privileges [are ones] I’ve literally never heard of.” Well, who ever heard of executive privilege for a social secretary?

New Hampshire once looked like a potential lost seat for the GOP. Not anymore. The Republican front-runner, Kelly Ayotte, leads Paul Hodes by 9 points in the latest poll.

Good for him: “The top Senate Democrat in charge of military affairs on Wednesday ended a three-day trip to Afghanistan with a message of optimism that the U.S. mission can still succeed. Sen. Carl Levin (D-Mich.), chairman of the Armed Services Committee, said he sees a higher confidence among U.S. military leaders and Afghan leaders that the war against insurgents can be successful.” And a lesson for Obama: if he leads on national security, his base will follow.

Politico has a forum on: “Massachusetts: Does the closer-than-anyone-expected race jeopardize the Democratic agenda?” If you have to ask, the answer is yes.

All that groveling for nothing: “Although a State Department China hand described constructive U.S.-China cooperation on Iran in Hill testimony today, there are more signs that China is trying to put the breaks on moving forward with new Iran sanctions at this time. … But a diplomatic source tells POLITICO that China is saying its political director may not necessarily be able to come to a meeting of the P5+1 — the five permanent members of the UN Security Council plus Germany — that is scheduled for next weekend in New York.”

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What’s the Basis for Holder’s Stonewall?

In the flap over the New Black Panther Party case, the Justice Department appears to be making up rules as it goes along. Back on December 18, 2009, the U.S. Commission on Civil Rights, in a letter from its general counsel David Blackwood to the Justice Department’s Joseph H. Hunt, wrote to explain why the commission had resorted to sending subpoenas to obtain information on the controversial dismissal of the voter-intimidation case and to try to dislodge the reason for the Justice Department’s apparent refusal to cooperate with the commission. He wrote:

To allay your concerns, the Commission requested a meeting where we would negotiate revisions to our discovery plan so as to eliminate or minimize the likelihood the Commission’s work would interfere with OPR’s pending investigation. Your refusal to schedule a meeting even to discuss the Commission’s pending discovery requests and depositions suggests that DOJ is not interested in working to develop a path that will allow each agency to fulfill its statutory obligation. As you are aware, the Commission first began requesting related information from the Department on June 16, 2009, six months ago. After six months passed without a substantive response from DOJ, the Commission felt it necessary to issue subpoenas.

Hunt wrote back on December 23, denying that the department was refusing to cooperate and asserting that it wasn’t unwilling to meet with the commission. Hunt seemed to suggest that the department wanted the chance to “set forth its position in writing,” but alas, it never consented to a meeting and still has not presented a viable legal theory for refusing to cooperate. In its blizzard of excuses in its discovery response, Eric Holder’s Justice Department asserts the attorney-client privilege. But a 1982 opinion of the Office of Legal Counsel specifically found that “the interests implicated by the attorney-client privilege generally are subsumed under a claim of executive privilege … and the considerations of separation of powers and effective performance of constitutional duties determine the validity of the claim of privilege.” A 1986 opinion similarly makes clear that the attorney-client privilege “is not usually considered to constitute a separate basis [from executive privilege] for resisting congressional demands for information.” In short, there really isn’t an attorney-client privilege, just executive privilege, but the Obami seem unwilling to use that politically charged defense. Read More

In the flap over the New Black Panther Party case, the Justice Department appears to be making up rules as it goes along. Back on December 18, 2009, the U.S. Commission on Civil Rights, in a letter from its general counsel David Blackwood to the Justice Department’s Joseph H. Hunt, wrote to explain why the commission had resorted to sending subpoenas to obtain information on the controversial dismissal of the voter-intimidation case and to try to dislodge the reason for the Justice Department’s apparent refusal to cooperate with the commission. He wrote:

To allay your concerns, the Commission requested a meeting where we would negotiate revisions to our discovery plan so as to eliminate or minimize the likelihood the Commission’s work would interfere with OPR’s pending investigation. Your refusal to schedule a meeting even to discuss the Commission’s pending discovery requests and depositions suggests that DOJ is not interested in working to develop a path that will allow each agency to fulfill its statutory obligation. As you are aware, the Commission first began requesting related information from the Department on June 16, 2009, six months ago. After six months passed without a substantive response from DOJ, the Commission felt it necessary to issue subpoenas.

Hunt wrote back on December 23, denying that the department was refusing to cooperate and asserting that it wasn’t unwilling to meet with the commission. Hunt seemed to suggest that the department wanted the chance to “set forth its position in writing,” but alas, it never consented to a meeting and still has not presented a viable legal theory for refusing to cooperate. In its blizzard of excuses in its discovery response, Eric Holder’s Justice Department asserts the attorney-client privilege. But a 1982 opinion of the Office of Legal Counsel specifically found that “the interests implicated by the attorney-client privilege generally are subsumed under a claim of executive privilege … and the considerations of separation of powers and effective performance of constitutional duties determine the validity of the claim of privilege.” A 1986 opinion similarly makes clear that the attorney-client privilege “is not usually considered to constitute a separate basis [from executive privilege] for resisting congressional demands for information.” In short, there really isn’t an attorney-client privilege, just executive privilege, but the Obami seem unwilling to use that politically charged defense.

So has the president or his attorney general invoked executive privilege? Commissioner Todd Gaziano told me it’s not clear. He says, “Not only has the Department refused to give us the information — the documents and answers to which we are statutorily entitled — but it still has not given us a legal argument or justification for not doing so.” He noted that this occurs “in the face of binding department authority,” which shows there is no valid attorney-client privilege.

The White House thought it appropriate to invoke executive privilege to block testimony of its social secretary, so perhaps that’s where they’re going with this. But that privilege arguably can only be invoked by the president or his department heads, in this case Holder. Maybe if Obama ever gives a press conference he can tell us. Or maybe at the upcoming confirmation hearing of the not-yet-selected No. 2 man in the Justice Department, an enterprising senator can find out why the department thinks it can make up new rules, avoid explaining what exactly they are, and refuse to permit anyone to peer into a decision that apparently is so indefensible, it requires a Nixonian-like defensive strategy.

While Holder has prevented his employees from testifying before the commission, former voting-rights section chief Chris Coates has made his views known. His rationale (which should be read in full here) for bringing the case against the New Black Panther Party is a tribute to the notions of equal protection and fairness. The Holder team won’t tell us what was wrong with that analysis and why it countermanded the decision of Coates and his team, dismissing a case as egregious as the New Black Panther Party matter. As Coates said in his goodbye remarks to his colleagues:

A lot has been said about the politization [sic] of the Civil Rights Division. I believe that one of the most detrimental ways to politicize the enforcement process in the Voting Section is to enforce the provisions of the Voting Rights Act only for the protection of certain racial or ethnic minorities; or to take the position that the Voting Section is not going to enforce certain provision [sic] of any of the voting statutes the Voting Section has the responsibility to enforce. Such decisions carry with them obvious, enormous implications for partisan political struggles.

Well that seems to be what’s going on here — made-up rules and politics run rampant in the Justice Department. Not what the Obami promised, is it?

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Obama Lawyers Fined by Federal Court

Sanctimonious Eric Holder and his equally sanctimonious minions strode into the Justice Department filled with contempt for their predecessors, who they said had “politicized” the administration of justice. (They then proceeded to override the judgment of professional lawyers in the Office of Legal Counsel on the constitutionality of D.C. voting rights, appoint a slew of left-wing lawyers who are now making policy on terrorism, and override career prosecutors who chose not to pursue charges against CIA operatives who employed enhanced interrogation techniques.)

Specifically in the civil rights arena, the Obami charged that the Bush administration had failed to act with due diligence to enforce federal law. The Obama political appointees then proceeded to dismiss the New Black Panther Party case, an egregious case of voter intimidation. When last we checked, the Obama administration was refusing to allow its lawyers to respond to a subpoena by the U.S. Commission on Civil Rights. (Responses to written discovery requests are due on January 11.) Now comes further evidence of what passes for the “administration of justice” in the Obama-Holder regime:

This week, a federal district court in Kansas imposed sanctions on the same Civil Rights Division (CRD) officials who spiked the Panthers case, Loretta King and Steve Rosenbaum, for their refusals to provide information in another case. Breaking the president’s promise to have the most transparent administration in history, Rosenbaum and King’s concealment of information will cost the taxpayers thousands of dollars. … What is clear from reading the order is that, as usual, the CRD made broad accusations of discriminatory conduct when it filed its complaint, but when it was asked to provide specific examples or actual evidence of such discrimination, it failed to do so. Lawyers for both sides have until January 20 to determine the amount of the award to be made to the defendants. While the CRD lawyers “shall be solely responsible for paying the monetary sanctions,” there is no doubt the department will reimburse them, so the American taxpayer will end up footing the bill for Rosenbaum’s outrageous behavior and his failure to properly supervise the lawyers who work for him.

It is noteworthy that these two lawyers — the ones who directly superimposed their own legal judgment in the New Black Panther Party case — are now the subject of  the court’s order, which as the report notes is unusual, in that it is “directed at individual lawyers that specifically says their employer is not responsible for paying the costs.” To boot, King is a multiple-sanctions recipient. During the Clinton administration, she was one of the Justice Department attorneys who was responsible for a fine of more than half a million dollars.

It’s important to keep in mind that, according to those most closely involved in the matter, it’s highly unlikely that King and Rosenbaum themselves initiated the dismissal of the New Black Panther Case. The Washington Times has fingered the No. 3 man in the Justice Department. Nevertheless, the Obama team has contended to Republican congressmen that it was these “professionals” who made the call. And these are among the Obama lawyers who now are going to “improve” enforcement of civil rights laws. We now know what the Obama “professional” lawyers look like in action.

Sanctimonious Eric Holder and his equally sanctimonious minions strode into the Justice Department filled with contempt for their predecessors, who they said had “politicized” the administration of justice. (They then proceeded to override the judgment of professional lawyers in the Office of Legal Counsel on the constitutionality of D.C. voting rights, appoint a slew of left-wing lawyers who are now making policy on terrorism, and override career prosecutors who chose not to pursue charges against CIA operatives who employed enhanced interrogation techniques.)

Specifically in the civil rights arena, the Obami charged that the Bush administration had failed to act with due diligence to enforce federal law. The Obama political appointees then proceeded to dismiss the New Black Panther Party case, an egregious case of voter intimidation. When last we checked, the Obama administration was refusing to allow its lawyers to respond to a subpoena by the U.S. Commission on Civil Rights. (Responses to written discovery requests are due on January 11.) Now comes further evidence of what passes for the “administration of justice” in the Obama-Holder regime:

This week, a federal district court in Kansas imposed sanctions on the same Civil Rights Division (CRD) officials who spiked the Panthers case, Loretta King and Steve Rosenbaum, for their refusals to provide information in another case. Breaking the president’s promise to have the most transparent administration in history, Rosenbaum and King’s concealment of information will cost the taxpayers thousands of dollars. … What is clear from reading the order is that, as usual, the CRD made broad accusations of discriminatory conduct when it filed its complaint, but when it was asked to provide specific examples or actual evidence of such discrimination, it failed to do so. Lawyers for both sides have until January 20 to determine the amount of the award to be made to the defendants. While the CRD lawyers “shall be solely responsible for paying the monetary sanctions,” there is no doubt the department will reimburse them, so the American taxpayer will end up footing the bill for Rosenbaum’s outrageous behavior and his failure to properly supervise the lawyers who work for him.

It is noteworthy that these two lawyers — the ones who directly superimposed their own legal judgment in the New Black Panther Party case — are now the subject of  the court’s order, which as the report notes is unusual, in that it is “directed at individual lawyers that specifically says their employer is not responsible for paying the costs.” To boot, King is a multiple-sanctions recipient. During the Clinton administration, she was one of the Justice Department attorneys who was responsible for a fine of more than half a million dollars.

It’s important to keep in mind that, according to those most closely involved in the matter, it’s highly unlikely that King and Rosenbaum themselves initiated the dismissal of the New Black Panther Case. The Washington Times has fingered the No. 3 man in the Justice Department. Nevertheless, the Obama team has contended to Republican congressmen that it was these “professionals” who made the call. And these are among the Obama lawyers who now are going to “improve” enforcement of civil rights laws. We now know what the Obama “professional” lawyers look like in action.

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Flotsam and Jetsam

Good for the Senate. The nomination of lefty extremist Dawn Johnsen for the Office of Legal Counsel and two other nominations were returned to the White House. One of those is Mary Smith, nominated to head the tax division. She is not a tax lawyer, has never practiced tax law, and has never even taken continuing legal education in the subject area. But she is a Native American who worked on multiple Democratic campaigns. Perhaps we can finally begin to de-politicize the Justice Department.

Nebraska Gov. David Heineman blasts Sen. Ben Nelson. “The reason he’s in hot water right now is that he’s not listening to Nebraskans – it’s very unusual for him. . . I am shocked.” Sounds like the stump speech for Nelson’s 2012 opponent. But Michael Gerson suggests that Nelson is a sweet man who doesn’t understand what he agreed to on abortion subsidies. Maybe once he finds out, his mind can be changed.

Smart advice on the John Kerry trip to Tehran: “The Kerry mission would also look like a panicky effort to persuade the Ayatollah Ali Khamanei to accept the increasingly plaintive U.S. offers of engagement. Mr. Obama has set the end of this month as his latest deadline for progress on nuclear talks before he says he’ll seek tougher sanctions against Iran at the U.N. . .  The regime would probably exploit the visit for its own domestic purposes, perhaps adding to its P.R. coup by releasing to Mr. Kerry the three hapless American hikers it has promised to put on trial for having ‘suspicious aims’ as they wandered across the border with Iraq.”

Give the military option a chance, suggests Alan Kuperman from the pages of the New York Times: “Incentives and sanctions will not work, but air strikes could degrade and deter Iran’s bomb program at relatively little cost or risk, and therefore are worth a try. They should be precision attacks, aimed only at nuclear facilities, to remind Iran of the many other valuable sites that could be bombed if it were foolish enough to retaliate. . . Postponing military action merely provides Iran a window to expand, disperse and harden its nuclear facilities against attack. The sooner the United States takes action, the better.”

The U.S. launches a successful strike in Yemen, but Major Nadal Hassan’s favorite iman survives. So why is it that we are releasing Guantanamo detainees to a country so stocked with terrorists?

And although the Obami seem not to want to recognize it, we are in a war: “A Nigerian man, claiming to be linked to al-Qaeda, allegedly tried to set off an incendiary device aboard a transatlantic airplane Friday as it descended toward Detroit’s airport in what the White House called an attempted act of terrorism.” This would be the second domestic terrorist attack (Hassan, the first) this year. Oh, and the suspect claims he was given assistance in Yemen.

J Street Board member Hannah Rosenthal, now the Obami’s “anti-semitism czar(ina)” takes a shot at Israeli Ambassador Michael Oren for criticizing her J Street pals.

Jewish organizations respond with surprising vehemence. (Could the days of gritting their teeth over outrageous administration statements may be finally at an end?) The administration responds with a statement: “The Department of State values its close relationship with Ambassador Michael Oren and his staff at the Embassy of Israel in Washington. The United States and Israel enjoy extraordinarily close ties based on shared values, interests, and history, as well as the deep bonds between the Israeli people and the American people.” And so forth. So what about Rosenthal — if she is out of step with those she ostensibly serves (the Obama administration, not the J Street gang) what is she doing there?

Sen. Mark Warner insists he wants to be a radical centrist. But he keeps voting for Obama’s leftwing agenda including the government takeover of healthcare so he’s not doing much to differentiate himself from the run-of-mill liberal Democrats. Virginia voters have figured it out: “An automated poll conducted by SurveyUSA shows that Warner’s approval rating has fallen among independents and Republicans since January.”

Good for the Senate. The nomination of lefty extremist Dawn Johnsen for the Office of Legal Counsel and two other nominations were returned to the White House. One of those is Mary Smith, nominated to head the tax division. She is not a tax lawyer, has never practiced tax law, and has never even taken continuing legal education in the subject area. But she is a Native American who worked on multiple Democratic campaigns. Perhaps we can finally begin to de-politicize the Justice Department.

Nebraska Gov. David Heineman blasts Sen. Ben Nelson. “The reason he’s in hot water right now is that he’s not listening to Nebraskans – it’s very unusual for him. . . I am shocked.” Sounds like the stump speech for Nelson’s 2012 opponent. But Michael Gerson suggests that Nelson is a sweet man who doesn’t understand what he agreed to on abortion subsidies. Maybe once he finds out, his mind can be changed.

Smart advice on the John Kerry trip to Tehran: “The Kerry mission would also look like a panicky effort to persuade the Ayatollah Ali Khamanei to accept the increasingly plaintive U.S. offers of engagement. Mr. Obama has set the end of this month as his latest deadline for progress on nuclear talks before he says he’ll seek tougher sanctions against Iran at the U.N. . .  The regime would probably exploit the visit for its own domestic purposes, perhaps adding to its P.R. coup by releasing to Mr. Kerry the three hapless American hikers it has promised to put on trial for having ‘suspicious aims’ as they wandered across the border with Iraq.”

Give the military option a chance, suggests Alan Kuperman from the pages of the New York Times: “Incentives and sanctions will not work, but air strikes could degrade and deter Iran’s bomb program at relatively little cost or risk, and therefore are worth a try. They should be precision attacks, aimed only at nuclear facilities, to remind Iran of the many other valuable sites that could be bombed if it were foolish enough to retaliate. . . Postponing military action merely provides Iran a window to expand, disperse and harden its nuclear facilities against attack. The sooner the United States takes action, the better.”

The U.S. launches a successful strike in Yemen, but Major Nadal Hassan’s favorite iman survives. So why is it that we are releasing Guantanamo detainees to a country so stocked with terrorists?

And although the Obami seem not to want to recognize it, we are in a war: “A Nigerian man, claiming to be linked to al-Qaeda, allegedly tried to set off an incendiary device aboard a transatlantic airplane Friday as it descended toward Detroit’s airport in what the White House called an attempted act of terrorism.” This would be the second domestic terrorist attack (Hassan, the first) this year. Oh, and the suspect claims he was given assistance in Yemen.

J Street Board member Hannah Rosenthal, now the Obami’s “anti-semitism czar(ina)” takes a shot at Israeli Ambassador Michael Oren for criticizing her J Street pals.

Jewish organizations respond with surprising vehemence. (Could the days of gritting their teeth over outrageous administration statements may be finally at an end?) The administration responds with a statement: “The Department of State values its close relationship with Ambassador Michael Oren and his staff at the Embassy of Israel in Washington. The United States and Israel enjoy extraordinarily close ties based on shared values, interests, and history, as well as the deep bonds between the Israeli people and the American people.” And so forth. So what about Rosenthal — if she is out of step with those she ostensibly serves (the Obama administration, not the J Street gang) what is she doing there?

Sen. Mark Warner insists he wants to be a radical centrist. But he keeps voting for Obama’s leftwing agenda including the government takeover of healthcare so he’s not doing much to differentiate himself from the run-of-mill liberal Democrats. Virginia voters have figured it out: “An automated poll conducted by SurveyUSA shows that Warner’s approval rating has fallen among independents and Republicans since January.”

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Eric Holder Testifies

One can understand how the Obami may have reached this decision to ship KSM and other 9/11 conspirators off to New York (or wherever the change-of-venue motions take them) for a civilian trial. First, as Andy McCarthy details, Eric Holder and his Justice Department minions play fast and loose with the facts. Second, the Obama spinners conveniently misrepresent the facts, claiming that no one raised concerns that Zacharias Moussaoui was not prosecuted before a military commission. Actually, many conservative commentators and Republicans did so, as did two Democratic senators. And third, Holder relies on bluster in lieu of cogent legal argument. (As Sen. Jon Kyl asked, “How could you be more likely to get a conviction in federal court when [KSM] has already asked to plead guilty to military commission?”)

I spent some time today with two former Justice Department lawyers who have a wealth of relevant experience, and their observations are worth taking to heart. First, in a military commission, the evidence could be restricted to the lawyers representing the al-Qaeda members. But in federal court, KSM can be his own lawyer and would have direct access to all manner of classified material. How’s that going to work? Second, the trial will take years. A complex white-collar conspiracy trial may be a multiyear affair, so the KSM could still be tying up the federal prosecutors when the 2012 election rolls around. Hmmm. Third, KSM has a right to be present at trial and for all significant pretrial hearings, which means he is coming to New York City. Where are they going to put him? Fourth, the Justice Department has not yet revealed the result of its investigation of Office of Legal Counsel lawyers who authored the interrogation memos. Why wouldn’t KSM use that material to accuse his captors of torture and to exclude all evidence? Seems like that will be his first order of business.

In short, the list of complications and dangers to American interests is long. Satisfactory answers are lacking. Will Congress step in to blow the whistle and defund the three-ring circus before it gets up and running? The alternative is to let this play out over years and let the voters judge for themselves whether the Obama administration and its Democratic enablers in Congress really were looking out for American security or instead were caught up in some ideologically driven fantasy that we were going to get brownie points by setting KSM and his cohorts up in a federal courtroom. For years to come.

One can understand how the Obami may have reached this decision to ship KSM and other 9/11 conspirators off to New York (or wherever the change-of-venue motions take them) for a civilian trial. First, as Andy McCarthy details, Eric Holder and his Justice Department minions play fast and loose with the facts. Second, the Obama spinners conveniently misrepresent the facts, claiming that no one raised concerns that Zacharias Moussaoui was not prosecuted before a military commission. Actually, many conservative commentators and Republicans did so, as did two Democratic senators. And third, Holder relies on bluster in lieu of cogent legal argument. (As Sen. Jon Kyl asked, “How could you be more likely to get a conviction in federal court when [KSM] has already asked to plead guilty to military commission?”)

I spent some time today with two former Justice Department lawyers who have a wealth of relevant experience, and their observations are worth taking to heart. First, in a military commission, the evidence could be restricted to the lawyers representing the al-Qaeda members. But in federal court, KSM can be his own lawyer and would have direct access to all manner of classified material. How’s that going to work? Second, the trial will take years. A complex white-collar conspiracy trial may be a multiyear affair, so the KSM could still be tying up the federal prosecutors when the 2012 election rolls around. Hmmm. Third, KSM has a right to be present at trial and for all significant pretrial hearings, which means he is coming to New York City. Where are they going to put him? Fourth, the Justice Department has not yet revealed the result of its investigation of Office of Legal Counsel lawyers who authored the interrogation memos. Why wouldn’t KSM use that material to accuse his captors of torture and to exclude all evidence? Seems like that will be his first order of business.

In short, the list of complications and dangers to American interests is long. Satisfactory answers are lacking. Will Congress step in to blow the whistle and defund the three-ring circus before it gets up and running? The alternative is to let this play out over years and let the voters judge for themselves whether the Obama administration and its Democratic enablers in Congress really were looking out for American security or instead were caught up in some ideologically driven fantasy that we were going to get brownie points by setting KSM and his cohorts up in a federal courtroom. For years to come.

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