Commentary Magazine


Topic: special counsel

GOP Ramps Up Calls for Leak Investigation

Yesterday, the White House continued to push back against allegations that it approved classified leaks to the media, but Republicans aren’t buying it. Rep. Peter King is the latest high-profile Republican to claim the White House authorized the leaks for political gain:

A top House Republican on Sunday rejected President Obama’s claim that recent security leaks did not come from the White House, accusing the president of using the leaks — which detailed the administration’s counterterror programs — to “build up his reputation” before November.

“He’s trying to be like George Patton or John Wayne,” Rep. Peter King, R-N.Y., told Fox News.  …

“This is the most shameful cascade of leaks I’ve ever heard or seen in government,” he said. “It’s clear from those stories this came right from the White House, came right from the National Security Council, came right from the Situation Room. … It has to lead to people very high up in the administration in his White House.”

King alleged that the leaks must have been “approved from the top,” and accused the president of grandstanding in an election year.

Read More

Yesterday, the White House continued to push back against allegations that it approved classified leaks to the media, but Republicans aren’t buying it. Rep. Peter King is the latest high-profile Republican to claim the White House authorized the leaks for political gain:

A top House Republican on Sunday rejected President Obama’s claim that recent security leaks did not come from the White House, accusing the president of using the leaks — which detailed the administration’s counterterror programs — to “build up his reputation” before November.

“He’s trying to be like George Patton or John Wayne,” Rep. Peter King, R-N.Y., told Fox News.  …

“This is the most shameful cascade of leaks I’ve ever heard or seen in government,” he said. “It’s clear from those stories this came right from the White House, came right from the National Security Council, came right from the Situation Room. … It has to lead to people very high up in the administration in his White House.”

King alleged that the leaks must have been “approved from the top,” and accused the president of grandstanding in an election year.

The Justice Department has already launched an investigation into the leaks, which could obviously pose some conflicts of interest. In a column in the New York Daily News today, King called for a special counsel to be appointed to investigate:

That is why I called for the appointment of a special counsel to investigate these life-threatening leaks.

Attorney General Eric Holder cannot seriously be trusted to pursue crimes that may implicate senior officials in the administration. On Friday, he announced that two U.S. attorneys were selected to lead an investigation into the leaks. It is vital that this investigation be thorough and independent of Justice Department control.

While the administration has rightfully initiated an unprecedented number of leak prosecutions, these are all centered around nonpolitical, career employees who have, for the most part, leaked information having no direct bearing on the president.

The intelligence, law enforcement and military personnel who defend us, and the human sources who take great risks on our behalf, on the assurance that we will do our best to protect their security and identities, deserve no less.

As King notes, the Obama administration has been very serious in cracking down on leaks — but so far, it’s been non-political, mid-level government or military officials who have been prosecuted. In contrast, the latest leakers have clearly been high-level administration officials who have been privy to classified security briefings. And there has been a stark contrast between how the White House has handled these cases. With the latest leaks, the administration only initiated the DOJ investigation after an outcry from lawmakers.

It’s too early to say whether there will be enough pressure on the White House to force a special counsel investigation. In addition to Rep. King, Sen. John McCain, Sen. John Cornyn, and Sen. Roy Blunt have also called for one. And while some Democrats like Sen. Dianne Feinstein have stopped short of calling for it, they haven’t ruled it out.

Read Less

Obstruction of Justice

On August 6, the U.S. Commission on Civil Rights sent Eric Holder a letter reiterating its request to allow Chris Coates, the former head of the New Black Panther Party trial team, to testify. Coates had, upon his relocation to the U.S. attorney’s office in South Carolina, given a goodbye speech detailing the dangers of his colleagues’ aversion to colorblind enforcement of civil rights laws, which is the central focus of the commission’s work. The commission, in an effort to avoid any claim of “privilege,” offered to limit questioning to whether there is a “policy and/or culture within the Department of discriminatory enforcement of civil rights laws” and whether the administration is refusing to enforce the portion of the Voting Rights Act that requires local and state governments to clean up the voting rolls to prevent fraud.

On August 11, civil rights department head Thomas Perez, who has been accused of giving misleading testimony to the commission and to Congress, sent a rather preposterous response. He assured the commission that there was no problem, no problem at all, because the Justice Department is committed “to the evenhanded application of the law.” And since Perez has told the commission so, there is no need to allow Coates to testify. (“In light of my clear articulation of our enforcement policy … we do not believe that a Civil Rights Division attorney who has been on detail to the U.S. Attorney’s office in South Carolina since mid-January 2010 is the appropriate witness to testify.”)

It’s jaw-dropping, really, even for this crew. Coates, who has detailed knowledge of the most explosive allegations, can’t be the right person to testify, because he was shuffled off to South Carolina after his maddening experience on the New Black Panther trial case and a fiery farewell address in which he accused the department of failing to enforce the law in an “evenhanded” manner. So he can’t possibly be the right person to testify.

As this report details, an acrimonious commission meeting took place on Friday in which a minority of the commissioners carried the department’s water and found no problem with the galling stonewall. But a majority of the commissioners found that the Obama administration had been obstructionist and passed a motion that restated the commission’s statutory authority and the attorney general’s refusal to cooperate with the commission’s investigation:

The Commission’s organic statute authorizes it to subpoena witnesses and the production of written material in aid of its mission, and it authorizes the Attorney General to enforce the Commission’s subpoenas in federal court if any person or entity refuses to comply. The Commission’s statute also requires that “All Federal agencies shall cooperate fully with the Commission to the end that it may effectively carry out its functions and duties,” 42 U.S.C. § 1975b(e), but it is equally unclear whether the Commission has recourse to seek judicial enforcement of this command, absent representation from the Department of Justice. … In the NBPP investigation that is the subject of this report, the Department of Justice refused to comply with certain Commission requests for information concerning DOJ’s enforcement actions, and it instructed its employees not to comply with the Commission’s subpoenas for testimony.

The commission also adopted the following:

Congress should consider amendments to the Commission’s statute to address investigations in which the Attorney General and/or the Department of Justice have a conflict of interest in complying fully with the Commission’s requests for information.  Options to address a potential conflict of interest might include the following:

Enactment of a statutory procedure by which the Commission may request the Attorney General to appoint a special counsel with authority to represent it in federal court, which request the Attorney General must personally respond to in writing within a specified period of time.

Enactment of a statutory provision to clarify that the Commission may hire its own counsel and proceed independently in federal court if the Attorney General refuses to enforce a subpoena or other lawful request, especially those directed at the Department of Justice, its officers, or its employees.

A conscious decision not to alter the Commission’s statute or a statutory confirmation that the Attorney General and Department of Justice can act against the Commission’s interest without any particular explanation.

The last option would surely be popular with congressional Democrats.

But the real resolution of this will probably come only if Coates and others defy the department’s order to ignore the commission’s subpoenas (not likely if they want to continue working in this administration), or if control of the House and/or Senate flips to GOP control, and Coates, Perez, and others are ordered to appear and give congressional testimony under oath.

On August 6, the U.S. Commission on Civil Rights sent Eric Holder a letter reiterating its request to allow Chris Coates, the former head of the New Black Panther Party trial team, to testify. Coates had, upon his relocation to the U.S. attorney’s office in South Carolina, given a goodbye speech detailing the dangers of his colleagues’ aversion to colorblind enforcement of civil rights laws, which is the central focus of the commission’s work. The commission, in an effort to avoid any claim of “privilege,” offered to limit questioning to whether there is a “policy and/or culture within the Department of discriminatory enforcement of civil rights laws” and whether the administration is refusing to enforce the portion of the Voting Rights Act that requires local and state governments to clean up the voting rolls to prevent fraud.

On August 11, civil rights department head Thomas Perez, who has been accused of giving misleading testimony to the commission and to Congress, sent a rather preposterous response. He assured the commission that there was no problem, no problem at all, because the Justice Department is committed “to the evenhanded application of the law.” And since Perez has told the commission so, there is no need to allow Coates to testify. (“In light of my clear articulation of our enforcement policy … we do not believe that a Civil Rights Division attorney who has been on detail to the U.S. Attorney’s office in South Carolina since mid-January 2010 is the appropriate witness to testify.”)

It’s jaw-dropping, really, even for this crew. Coates, who has detailed knowledge of the most explosive allegations, can’t be the right person to testify, because he was shuffled off to South Carolina after his maddening experience on the New Black Panther trial case and a fiery farewell address in which he accused the department of failing to enforce the law in an “evenhanded” manner. So he can’t possibly be the right person to testify.

As this report details, an acrimonious commission meeting took place on Friday in which a minority of the commissioners carried the department’s water and found no problem with the galling stonewall. But a majority of the commissioners found that the Obama administration had been obstructionist and passed a motion that restated the commission’s statutory authority and the attorney general’s refusal to cooperate with the commission’s investigation:

The Commission’s organic statute authorizes it to subpoena witnesses and the production of written material in aid of its mission, and it authorizes the Attorney General to enforce the Commission’s subpoenas in federal court if any person or entity refuses to comply. The Commission’s statute also requires that “All Federal agencies shall cooperate fully with the Commission to the end that it may effectively carry out its functions and duties,” 42 U.S.C. § 1975b(e), but it is equally unclear whether the Commission has recourse to seek judicial enforcement of this command, absent representation from the Department of Justice. … In the NBPP investigation that is the subject of this report, the Department of Justice refused to comply with certain Commission requests for information concerning DOJ’s enforcement actions, and it instructed its employees not to comply with the Commission’s subpoenas for testimony.

The commission also adopted the following:

Congress should consider amendments to the Commission’s statute to address investigations in which the Attorney General and/or the Department of Justice have a conflict of interest in complying fully with the Commission’s requests for information.  Options to address a potential conflict of interest might include the following:

Enactment of a statutory procedure by which the Commission may request the Attorney General to appoint a special counsel with authority to represent it in federal court, which request the Attorney General must personally respond to in writing within a specified period of time.

Enactment of a statutory provision to clarify that the Commission may hire its own counsel and proceed independently in federal court if the Attorney General refuses to enforce a subpoena or other lawful request, especially those directed at the Department of Justice, its officers, or its employees.

A conscious decision not to alter the Commission’s statute or a statutory confirmation that the Attorney General and Department of Justice can act against the Commission’s interest without any particular explanation.

The last option would surely be popular with congressional Democrats.

But the real resolution of this will probably come only if Coates and others defy the department’s order to ignore the commission’s subpoenas (not likely if they want to continue working in this administration), or if control of the House and/or Senate flips to GOP control, and Coates, Perez, and others are ordered to appear and give congressional testimony under oath.

Read Less

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?)

Read Less

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.

Read Less

Pity the Constitution

To the century-old debate about whether the Constitution is “living” or static, we may now add yet another argument, an even more woeful assault on the founding document of our country. David Strauss — who claims to be an eminent constitutional-law scholar — views the Constitution as a mere Rorschach test for the collective psyche of the polis.

Writing in an unlikely forum, Florida International University law professor Stanley Fish subjects Strauss’s new book to a much-needed vivisection. He first boils down Strauss’s thesis:

The question is not, as Strauss would have it, is this proffered meaning in the Constitution? The question is, can a chain of inference be formed that links this meaning to something the framers can be said to have intended? …

[Strauss states that the] “written Constitution is valuable because it provides a common ground among the American people.” But as it turns out, common ground is provided not by the Constitution itself but by a survey of “widely acceptable” meanings, which are then attributed to the Constitution as if it were their source. The text, Strauss advises, “should be interpreted in the way best calculated to provide a point on which people can agree.” The way to do this, he adds, is to give the words of the Constitution “their ordinary current meaning — even in preference to the meaning the framers understood.” After all, “the original meaning might be obscure and controversial.”

Believe it or not, even the New York Times can’t stomach Strauss’s assertion:

This is an amazing statement. The Constitution becomes common ground when it becomes a vessel for meanings it does not contain. It acts as a binding agent as long as you don’t take it seriously but take care to pretend that you do. As long as an interpretation of the Constitution “can plausibly say that it honors the text, the text can continue to serve the common ground function.” … The incoherence of what Strauss is urging is spectacularly displayed in a single sentence. Given the importance of common ground, “it makes sense,” he says, “to adhere to the text even while disregarding the framers’ intentions.”

Fish concludes that “if this is what the ‘living Constitution’ is — a Constitution produced and reproduced by serial acts of infidelity — I hereby cast a vote for the real one.”

Theoretically, Strauss is one step further from what a “living Constitution” is. The concept’s original adherents, if they may be taken at their word, saw the “living Constitution” as a way to pull the text into the modern age, amplifying its meaning, not undermining it. Among angels, this may have worked. But Strauss shows what implementing a “living Constitution” looks like in the real world.

His conclusion is fiddlesticks but not for lack of logic. There’s a perfectly reasonable devolution from an established Constitution to a living Constitution to a populist legal system. The question becomes, if the Constitution is “living,” who’s breathing life into it? And with what intentions?

Strauss’s book reminds us that the debate about the Constitution is far from theoretical, and the stakes are high. In fact, Strauss has already held positions high enough to promote his thesis. He was special counsel to the Senate Judiciary Committee. He was the assistant solicitor general. He has argued many times before the Supreme Court, and he edits the Supreme Court Review.

Furthermore, one might find it disconcerting to know that Strauss has been singing former colleague Elena Kagan’s praises across the media. He has said: “Elena is a resolutely non-ideological person. She is great at asking hard questions. She does not approach issues with preconceived views; she tries to figure things out. She is practical and tough-minded.”

Much has yet to be determined about what Elena Kagan thinks. But if she, like her colleague, believes in a living Constitution, are we prepared to accept the interpretation with which she animates it on our behalf?

To the century-old debate about whether the Constitution is “living” or static, we may now add yet another argument, an even more woeful assault on the founding document of our country. David Strauss — who claims to be an eminent constitutional-law scholar — views the Constitution as a mere Rorschach test for the collective psyche of the polis.

Writing in an unlikely forum, Florida International University law professor Stanley Fish subjects Strauss’s new book to a much-needed vivisection. He first boils down Strauss’s thesis:

The question is not, as Strauss would have it, is this proffered meaning in the Constitution? The question is, can a chain of inference be formed that links this meaning to something the framers can be said to have intended? …

[Strauss states that the] “written Constitution is valuable because it provides a common ground among the American people.” But as it turns out, common ground is provided not by the Constitution itself but by a survey of “widely acceptable” meanings, which are then attributed to the Constitution as if it were their source. The text, Strauss advises, “should be interpreted in the way best calculated to provide a point on which people can agree.” The way to do this, he adds, is to give the words of the Constitution “their ordinary current meaning — even in preference to the meaning the framers understood.” After all, “the original meaning might be obscure and controversial.”

Believe it or not, even the New York Times can’t stomach Strauss’s assertion:

This is an amazing statement. The Constitution becomes common ground when it becomes a vessel for meanings it does not contain. It acts as a binding agent as long as you don’t take it seriously but take care to pretend that you do. As long as an interpretation of the Constitution “can plausibly say that it honors the text, the text can continue to serve the common ground function.” … The incoherence of what Strauss is urging is spectacularly displayed in a single sentence. Given the importance of common ground, “it makes sense,” he says, “to adhere to the text even while disregarding the framers’ intentions.”

Fish concludes that “if this is what the ‘living Constitution’ is — a Constitution produced and reproduced by serial acts of infidelity — I hereby cast a vote for the real one.”

Theoretically, Strauss is one step further from what a “living Constitution” is. The concept’s original adherents, if they may be taken at their word, saw the “living Constitution” as a way to pull the text into the modern age, amplifying its meaning, not undermining it. Among angels, this may have worked. But Strauss shows what implementing a “living Constitution” looks like in the real world.

His conclusion is fiddlesticks but not for lack of logic. There’s a perfectly reasonable devolution from an established Constitution to a living Constitution to a populist legal system. The question becomes, if the Constitution is “living,” who’s breathing life into it? And with what intentions?

Strauss’s book reminds us that the debate about the Constitution is far from theoretical, and the stakes are high. In fact, Strauss has already held positions high enough to promote his thesis. He was special counsel to the Senate Judiciary Committee. He was the assistant solicitor general. He has argued many times before the Supreme Court, and he edits the Supreme Court Review.

Furthermore, one might find it disconcerting to know that Strauss has been singing former colleague Elena Kagan’s praises across the media. He has said: “Elena is a resolutely non-ideological person. She is great at asking hard questions. She does not approach issues with preconceived views; she tries to figure things out. She is practical and tough-minded.”

Much has yet to be determined about what Elena Kagan thinks. But if she, like her colleague, believes in a living Constitution, are we prepared to accept the interpretation with which she animates it on our behalf?

Read Less

Holder Under the Bus?

Andy McCarthy and I have both been looking at Attorney General Eric Holder’s latest effort to defend in a letter to Mitch McConnell the administration’s handling of the Christmas Day bomber. McCarthy sums it up:

The fundamental problem with the attorney general’s line of argument is that it unfolds as though there were no war and no president. Abdulmutallab, Holder believes, is just like any other person arrested in the United States: When an arrest happens, government officials automatically employ “long-established and publicly known policies and practices.” It does not matter who sent the person or what he was arrested trying to do. Miranda warnings are given, lawyers are interposed, charges are filed, and trials are conducted. Even if the nation is at war, we don’t inquire into whether the arrested person is an operative dispatched here by hostile forces to commit mass murder.

Aside from the sloppy legal work by Holder (including citing cases that have been since overturned by the Supreme Court), it is curious to see that the Obami are now retreating to the defense that “Bush did the same thing” (ignoring the instances in which Bush designated terrorists as enemy combatants). None of this seems to be working to shore up support for the criminal-justice model, which the Obami have insisted on employing, in part because the legal arguments are weak (e.g., disregarding the military-commission system, now in place to handle these cases) and in part because neither the public nor members of Obama’s own party think it makes sense to try KSM in a civilian court, Mirandize a terrorist, or ship Guantanamo detainees to the U.S. Joining the chorus of other mainstream critics of the Obama approach, Stuart Taylor calls Holder’s decisions to Mirandize the Christmas Day bomber and to try KSM in a civilian court “two glaring mistakes” that require a serious course correction by Obama in his anti-terrorism policies.

In a piece in the New Yorker, which aptly describes the gathering storm of opposition, Holder doubles-down (“What we did is totally consistent with what has happened in every similar case”) and lashes out at former Vice President Dick Cheney (“On some level, and I’m not sure why, he lacks confidence in the American system of justice”). But Holder seems to be on thin ice and the White House might now view him as a liability. The New Yorker quotes a source close to the White House:

“The White House doesn’t trust his judgment, and doesn’t think he’s mindful enough of all the things he should be,” such as protecting the President from political fallout. “They think he wants to protect his own image, and to make himself untouchable politically, the way Reno did, by doing the righteous thing.”

Even more ominous for Holder: Rahm Emanuel is making it clear to all those concerned that he disagreed with a string of highly controversial and politically disastrous decisions by Holder. We learn: “Emanuel adamantly opposed a number of Holder’s decisions, including one that widened the scope of a special counsel who had begun investigating the C.I.A.’s interrogation program. Bush had appointed the special counsel, John Durham, to assess whether the C.I.A. had obstructed justice when it destroyed videotapes documenting waterboarding sessions.” And then there is the KSM trial:

At the White House, Emanuel, who is not a lawyer, opposed Holder’s position on the 9/11 cases. He argued that the Administration needed the support of key Republicans to help close Guantánamo, and that a fight over Khalid Sheikh Mohammed could alienate them. “There was a lot of drama,” the informed source said. . . .  “Rahm felt very, very strongly that it was a mistake to prosecute the 9/11 people in the federal courts, and that it was picking an unnecessary fight with the military-commission people,” the informed source said. “Rahm had a good relationship with [Sen. Lindsay] Graham, and believed Graham when he said that if you don’t prosecute these people in military commissions I won’t support the closing of Guantánamo. . . . Rahm said, ‘If we don’t have Graham, we can’t close Guantánamo, and it’s on Eric!’ ”

Interesting that Emanuel and his spinners are now distancing the White House from their attorney general. One wonders where Obama stands in this drama. Isn’t he, after all, the commander in chief? Either the president was content to go along with Holder’s decisions until they went south or he subcontracted, with no oversight, some of the most critical decisions of his presidency to a lawyer who is prone to making the kind of mistakes a “first-year lawyer would get fired for.

Either way, Obama now must suffer the results of Holder’s ill-advised decisions. There will be much speculation, given Emanuel’s comments, as to whether the White House is getting ready to throw Holder under that proverbial bus. Now, as the Democrats join the Republicans to block the KSM trial and to deny funds for moving detainees to Illinois, it would be as good a time as any.

Andy McCarthy and I have both been looking at Attorney General Eric Holder’s latest effort to defend in a letter to Mitch McConnell the administration’s handling of the Christmas Day bomber. McCarthy sums it up:

The fundamental problem with the attorney general’s line of argument is that it unfolds as though there were no war and no president. Abdulmutallab, Holder believes, is just like any other person arrested in the United States: When an arrest happens, government officials automatically employ “long-established and publicly known policies and practices.” It does not matter who sent the person or what he was arrested trying to do. Miranda warnings are given, lawyers are interposed, charges are filed, and trials are conducted. Even if the nation is at war, we don’t inquire into whether the arrested person is an operative dispatched here by hostile forces to commit mass murder.

Aside from the sloppy legal work by Holder (including citing cases that have been since overturned by the Supreme Court), it is curious to see that the Obami are now retreating to the defense that “Bush did the same thing” (ignoring the instances in which Bush designated terrorists as enemy combatants). None of this seems to be working to shore up support for the criminal-justice model, which the Obami have insisted on employing, in part because the legal arguments are weak (e.g., disregarding the military-commission system, now in place to handle these cases) and in part because neither the public nor members of Obama’s own party think it makes sense to try KSM in a civilian court, Mirandize a terrorist, or ship Guantanamo detainees to the U.S. Joining the chorus of other mainstream critics of the Obama approach, Stuart Taylor calls Holder’s decisions to Mirandize the Christmas Day bomber and to try KSM in a civilian court “two glaring mistakes” that require a serious course correction by Obama in his anti-terrorism policies.

In a piece in the New Yorker, which aptly describes the gathering storm of opposition, Holder doubles-down (“What we did is totally consistent with what has happened in every similar case”) and lashes out at former Vice President Dick Cheney (“On some level, and I’m not sure why, he lacks confidence in the American system of justice”). But Holder seems to be on thin ice and the White House might now view him as a liability. The New Yorker quotes a source close to the White House:

“The White House doesn’t trust his judgment, and doesn’t think he’s mindful enough of all the things he should be,” such as protecting the President from political fallout. “They think he wants to protect his own image, and to make himself untouchable politically, the way Reno did, by doing the righteous thing.”

Even more ominous for Holder: Rahm Emanuel is making it clear to all those concerned that he disagreed with a string of highly controversial and politically disastrous decisions by Holder. We learn: “Emanuel adamantly opposed a number of Holder’s decisions, including one that widened the scope of a special counsel who had begun investigating the C.I.A.’s interrogation program. Bush had appointed the special counsel, John Durham, to assess whether the C.I.A. had obstructed justice when it destroyed videotapes documenting waterboarding sessions.” And then there is the KSM trial:

At the White House, Emanuel, who is not a lawyer, opposed Holder’s position on the 9/11 cases. He argued that the Administration needed the support of key Republicans to help close Guantánamo, and that a fight over Khalid Sheikh Mohammed could alienate them. “There was a lot of drama,” the informed source said. . . .  “Rahm felt very, very strongly that it was a mistake to prosecute the 9/11 people in the federal courts, and that it was picking an unnecessary fight with the military-commission people,” the informed source said. “Rahm had a good relationship with [Sen. Lindsay] Graham, and believed Graham when he said that if you don’t prosecute these people in military commissions I won’t support the closing of Guantánamo. . . . Rahm said, ‘If we don’t have Graham, we can’t close Guantánamo, and it’s on Eric!’ ”

Interesting that Emanuel and his spinners are now distancing the White House from their attorney general. One wonders where Obama stands in this drama. Isn’t he, after all, the commander in chief? Either the president was content to go along with Holder’s decisions until they went south or he subcontracted, with no oversight, some of the most critical decisions of his presidency to a lawyer who is prone to making the kind of mistakes a “first-year lawyer would get fired for.

Either way, Obama now must suffer the results of Holder’s ill-advised decisions. There will be much speculation, given Emanuel’s comments, as to whether the White House is getting ready to throw Holder under that proverbial bus. Now, as the Democrats join the Republicans to block the KSM trial and to deny funds for moving detainees to Illinois, it would be as good a time as any.

Read Less

Beam Me Up, Scooter

Former presidential press secretary Ari Fleischer was on the witness stand in the Scooter Libby trial today and gave testimony that the New York Times says “could prove very damaging” to the former vice-presidential aide. Testifying under a grant of immunity, Fleischer told the court that Libby was the first person to tell him that Ambassador Joseph Wilson had been sent on a mission to Niger by the CIA at the suggestion of Wilson’s wife, Valerie Plame Wilson, who was herself, Libby disclosed to him, an employee of the CIA’s counterproliferation division.

Libby is contending that the false statements he gave to the FBI and to a grand jury–about how he learned the identity of Wilson’s wife, and to whom he passed on this knowledge–were the product of a faulty memory and do not amount to the perjury or obstruction of justice with which he has been charged. But according to Stacy Schiff, a guest op-ed columnist at the Times, Libby is reputed to have a prodigious memory and “remembers all 79 Star Trek episodes. And their titles, too.” His memory lapses, she says, amount to what is technically known as the “‘Honey, I was too busy preparing the family tax return to think clearly when you asked about the lap-dancers’ defense.”

For their part, Libby’s attorneys had hoped U.S. District Judge Reggie B. Walton would allow them to call an expert on human memory, who would help them make their case that “memory does not function like a tape recorder” and “a person is less likely to remember information if he is paying attention to several things at once.” For this purpose, the defense team had hired Daniel L. Schacter, professor of psychology at Harvard and the author of The Seven Sins of Memory and  Searching for Memory: The Brain, the Mind and the Past.  But Walton has ruled against them. No memory expert will appear in court.

Still, will a jury vote to convict? Even if a convincing case is made that Libby lied to investigators, it will be exceptionally difficult for prosecutors to prove “beyond a reasonable doubt” that he was prevaricating rather than merely confused. One does not need an expert in memory to persuade a jury that as events recede into the past they become more difficult to remember, or that what appears salient in retrospect might have been quite unremarkable at the time it originally occurred. 

As far as Star Trek is concerned, even if Libby does know all 79 episodes by heart–and this has not yet been demonstrated–it would not logically follow that he would remember every word of every conversation he held in a busy White House in the middle of a war. Like many Trekkies, he more likely viewed each of the episodes multiple times and talked about them at length with others who shared his particular passion, generating a much more firmly imprinted memory than one left by what was said in an offhand way over lunch with a colleague. 

Still, if Libby takes the witness stand in his own defense, as he is expected to do, he is going to have to walk a very fine line between remembering too little, thus sounding evasive, and remembering too much, thus undermining the core of his own defense.
 
For a full listing of the special counsel’s exhibits in the case, click here.

For a full listing of all 79 Star Trek episodes, click here.

Former presidential press secretary Ari Fleischer was on the witness stand in the Scooter Libby trial today and gave testimony that the New York Times says “could prove very damaging” to the former vice-presidential aide. Testifying under a grant of immunity, Fleischer told the court that Libby was the first person to tell him that Ambassador Joseph Wilson had been sent on a mission to Niger by the CIA at the suggestion of Wilson’s wife, Valerie Plame Wilson, who was herself, Libby disclosed to him, an employee of the CIA’s counterproliferation division.

Libby is contending that the false statements he gave to the FBI and to a grand jury–about how he learned the identity of Wilson’s wife, and to whom he passed on this knowledge–were the product of a faulty memory and do not amount to the perjury or obstruction of justice with which he has been charged. But according to Stacy Schiff, a guest op-ed columnist at the Times, Libby is reputed to have a prodigious memory and “remembers all 79 Star Trek episodes. And their titles, too.” His memory lapses, she says, amount to what is technically known as the “‘Honey, I was too busy preparing the family tax return to think clearly when you asked about the lap-dancers’ defense.”

For their part, Libby’s attorneys had hoped U.S. District Judge Reggie B. Walton would allow them to call an expert on human memory, who would help them make their case that “memory does not function like a tape recorder” and “a person is less likely to remember information if he is paying attention to several things at once.” For this purpose, the defense team had hired Daniel L. Schacter, professor of psychology at Harvard and the author of The Seven Sins of Memory and  Searching for Memory: The Brain, the Mind and the Past.  But Walton has ruled against them. No memory expert will appear in court.

Still, will a jury vote to convict? Even if a convincing case is made that Libby lied to investigators, it will be exceptionally difficult for prosecutors to prove “beyond a reasonable doubt” that he was prevaricating rather than merely confused. One does not need an expert in memory to persuade a jury that as events recede into the past they become more difficult to remember, or that what appears salient in retrospect might have been quite unremarkable at the time it originally occurred. 

As far as Star Trek is concerned, even if Libby does know all 79 episodes by heart–and this has not yet been demonstrated–it would not logically follow that he would remember every word of every conversation he held in a busy White House in the middle of a war. Like many Trekkies, he more likely viewed each of the episodes multiple times and talked about them at length with others who shared his particular passion, generating a much more firmly imprinted memory than one left by what was said in an offhand way over lunch with a colleague. 

Still, if Libby takes the witness stand in his own defense, as he is expected to do, he is going to have to walk a very fine line between remembering too little, thus sounding evasive, and remembering too much, thus undermining the core of his own defense.
 
For a full listing of the special counsel’s exhibits in the case, click here.

For a full listing of all 79 Star Trek episodes, click here.

Read Less




Welcome to Commentary Magazine.
We hope you enjoy your visit.
As a visitor to our site, you are allowed 8 free articles this month.
This is your first of 8 free articles.

If you are already a digital subscriber, log in here »

Print subscriber? For free access to the website and iPad, register here »

To subscribe, click here to see our subscription offers »

Please note this is an advertisement skip this ad
Clearly, you have a passion for ideas.
Subscribe today for unlimited digital access to the publication that shapes the minds of the people who shape our world.
Get for just
YOU HAVE READ OF 8 FREE ARTICLES THIS MONTH.
FOR JUST
YOU HAVE READ OF 8 FREE ARTICLES THIS MONTH.
FOR JUST
Welcome to Commentary Magazine.
We hope you enjoy your visit.
As a visitor, you are allowed 8 free articles.
This is your first article.
You have read of 8 free articles this month.
YOU HAVE READ 8 OF 8
FREE ARTICLES THIS MONTH.
for full access to
CommentaryMagazine.com
INCLUDES FULL ACCESS TO:
Digital subscriber?
Print subscriber? Get free access »
Call to subscribe: 1-800-829-6270
You can also subscribe
on your computer at
CommentaryMagazine.com.
LOG IN WITH YOUR
COMMENTARY MAGAZINE ID
Don't have a CommentaryMagazine.com log in?
CREATE A COMMENTARY
LOG IN ID
Enter you email address and password below. A confirmation email will be sent to the email address that you provide.