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“A National Laughingstock”: Alberto Gonzales Returns From Obscurity

We’ve heard quite a bit recently from Dick Cheney, Karl Rove, Donald Rumsfeld, and Michael Mukasey, so I suppose it stands to reason that it’s time for Alberto Gonzales to reemerge, too.

The former attorney general has been wise to keep a low profile. In office, he was a national laughingstock. Upon Gonzales’ departure, Andrew Cohen wrote a terrific piece explaining, “By any reasonable standard, the Gonzales Era at the Justice Department is void of almost all redemptive qualities.” He sought a legal job in D.C. but couldn’t find a firm that would hire him, and the last I heard, Gonzales ended up teaching at an unaccredited law school.

The former A.G. nevertheless appeared on MSNBC this morning, apparently ready to address some of the ongoing controversies. He seemed inclined to give the Obama administration the benefit of the doubt when it came to subpoenaing Associated Press phone logs, but this nevertheless stood out for me.

Former Attorney General Alberto Gonzales recalled on Wednesday a time when he was confronted with a “very serious leak investigation” similar to the one that has embroiled the Obama administration this week. But, he said, he went a very different route and decided against subpoenaing a reporter’s notes.

Attorney General Eric Holder on Tuesday defended the seizure of Associated Press phone records, saying the Department of Justice was trying to get to the bottom of a “very serious leak” that “put American people at risk.” Gonzales, who oversaw a massive domestic wiretapping program under former President George W. Bush, acknowledged on MSNBC’s “Morning Joe” that the attorney general is often forced to “make a very hard determination” but when faced with a similar dilemma, his Justice Department “ultimately decided not to move forward.”

Now, I can’t be sure which case Gonzales is referring to, but for the record, let’s not forget that during his tenure as attorney general, the Justice Department “improperly gained access to reporters’ calling records as part of leak investigations.” Indeed, it happened quite a bit.

Unlike the current uproar, we didn’t hear much about this at the time, but if Gonzales wants to give the impression now that his DOJ showed greater restraint when it came to journalists and phone logs, he’s mistaken.

By: Steve Benen, The Maddow Blog, May 15, 2013

May 17, 2013 Posted by | Media, Neo-Cons | , , , , , , , | Leave a comment

“The Corruption Is Complete”: Where’s The Cop On The Wall Street Beat?

Bankers gone wild! Let’s tally some of their crimes:

JPMorgan Chase engaged in massive, systematic fraud to foreclose without cause or due process on innocent homeowners, tossing thousands of families into the streets.

Goldman Sachs profited by marketing an investment package that was designed to fail, collecting fat fees on each sale to unsuspecting investors who lost millions, while the bank also collected millions more from a side bet it made that, sure enough, its package would be a loser.

For years, HSBC has been butt-deep in a swamp of despicable, illegal money-laundering schemes, willingly processing billions of dirty dollars for vicious drug cartels and peddlers of arms to terrorist forces at war with America.

Many more examples abound. These are not poor saps desperately robbing a bank branch for a few hundred dollars, but criminal enterprises run by multimillionaire Wall Streeters who run in the finest social circles, are celebrated by the media and hobnob with the nation’s political elite.

Their corruption is complete; their crimes are documented. Yet, unlike sad-sack bank robbers, none of these Robbing Bankers have even been prosecuted, much less jailed. In fact, as revealed on PBS’s Frontline program earlier this year, frustrated prosecutors who served in the Justice Department’s criminal division two years ago report that “when it came to Wall Street, there were no investigations going on. There were no subpoenas, no document reviews, no wiretaps.”

Why is that? Where are the cops on the Wall Street beat?

Up in the suites, coddling the culprits, whom they know on a first-name basis. That’s because Attorney General Eric Holder and the chief of his criminal division, Lanny Breuer, have previously enjoyed lucrative careers as lawyers defending the very barons they’re now supposed to be prosecuting. Holder and Breuer both hail from the same Washington law firm, Covington & Burling, that specializes in representing corporate clients with legal issues at the Justice Department.

The moral here is clear: When engaged in high crimes, it literally pays to have friends in the highest places.

To transport them there, a secret cosmic door connects the parallel universes of Washington and Wall Street. It’s not the proverbial revolving door, but a wide-open passageway for easy flow back and forth — reserved for those in the know.

Lanny Breuer is one definitely in the know, passing with impunity from the job of defending Wall Street wrongdoers in cases before the Justice Department to being the department’s chief prosecutor of Wall Street wrongdoing.

Four years ago, he left Covington & Burling, where he represented Wall Street clients, to head the criminal division of Justice. Dismissing criticism that his long service to Wall Street banksters created an inherent conflict of interest with his new duty to the public, Breuer insisted that he’d be a better prosecutor “because of my deep experience in the private sector.”

That claim would’ve proven more convincing had he brought even a single case against the Wall Street executives who’ve been publicly exposed as self-enriching perpetrators of widespread fraud and other destructive financial crimes. But, no, not one.

Why? Call me cynical, but perhaps because he was using his four years at Justice to pad his résumé and enhance his value to Wall Street. Protecting bankers from prosecution could be a good career move.

No surprise, then, that Breuer headed back through that cosmic door, rejoining Covington in a specially created position to expand its role in defending corporate clients charged with foreign bribery, money laundering, securities fraud and such. “I’m a zealous advocate,” said the guy who studiously refrained from being a zealous prosecutor. “I look forward to being a zealous advocate for our clients again,” he added.

Sheesh, couldn’t he at least pretend to have some ethics? Instead, Lanny was relieved to be back on Wall Street’s side: “It’s my professional home,” he confessed.” Oh, did I mention that his starting salary at Covington will be $4 million a year?


By: Jim Hightower, The National Memo, April 10, 2013

April 11, 2013 Posted by | Big Banks, Wall Street | , , , , , , | Leave a comment

“A Partisan Cleerleader”: Supreme Court Justice Scalia Turns Advocate Against Obama

In January, Supreme Court Justice Antonin Scalia accused the U.S. Environmental Protection Agency of “high-handedness.” He was just getting warmed up.

Over the next 3 1/2 months, Scalia asked whether federal immigration policy was designed to “please Mexico,” fired off 12 questions and comments in 15 minutes at a government lawyer in a case involving overtime pay, and dismissed part of Solicitor General Donald Verrilli’s defense of President Barack Obama’s health-care law as “extraordinary.”

Scalia’s tone this year, particularly in cases involving the Obama administration, is raising new criticism over the temperament of a justice who has always relished the give-and-take of the Supreme Court’s public sessions. Some lawyers say Scalia, a 1986 appointee of Republican President Ronald Reagan, is crossing the line that separates tough scrutiny from advocacy.

“His questions have been increasingly confrontational,”said Charles Fried, a Harvard Law School professor who served as Reagan’s top Supreme Court advocate. While the justice has always asked “pointed” questions, in the health-care case “he came across much more like an advocate.”

Scalia’s approach is fueling the perception that the biggest cases this term, including health care, may be influenced by politics, rather than the legal principles that he and other justices say should be their guide. A Bloomberg News poll in March showed that 75 percent of Americans think the court’s decision on the 2010 law will be based more on politics than on constitutional merit.

Campaign Issue

“Someone who had just tuned into the health-care argument might get the impression that the court is a much more partisan institution than it actually is,” said David Strauss, a constitutional law professor at the University of Chicago Law School.

The week after the health-insurance argument, Obama showed a willingness to make the court an issue in his re-election campaign, saying a ruling striking down the law would be“judicial activism” by “an unelected group of people.” The court will probably rule by the end of June.

Scalia, 76, declined to comment for this story, said Kathy Arberg, a Supreme Court spokeswoman.

The justice has never shied away from controversy. He once wrote that a colleague’s reasoning in an abortion case “cannot be taken seriously.” When the court expanded the rights of prisoners at the U.S. naval base in Guantanamo Bay, Cuba, he dissented by saying the ruling “will almost certainly cause more Americans to be killed.”

‘Nasty’ Question

In 2009, he told a college student she had posed a “nasty, impolite question” when she asked whether book tours by the justices undermined their case for banning camera coverage of arguments. In 2006, he flicked his hand under his chin, using a dismissive gesture he said was Sicilian, to show his disdain for a reporter’s question.

In the courtroom, he is quick with one-liners, drawing laughter more frequently than any other justice during the court’s current nine-month term, according to DC Dicta, a blog that tracks the court.

Of late, Scalia’s most pointed remarks have come at the Obama administration’s expense.

In January, he directed his fire at Malcolm Stewart, a Justice Department attorney. Stewart was defending the EPA’s use of administrative compliance orders that demand an end to alleged environmental violations, in many cases insisting that recipients restore their land to its previous state.

‘That’s Very Nice’

Scalia made his contempt clear after Stewart said that people and companies could seek to change any “infeasible”requirements.

“Well, that’s very nice,” the justice said. “That’s very nice when you’ve received something called a compliance order, which says you’re subject to penalties” of $32,500 per day.

When Stewart said the EPA had modified the order at issue, dropping a requirement that an Idaho couple replant vegetation on their property, Scalia scoffed again. “It shows the high-handedness of the agency, it seems to me, putting in there stuff that is simply not required,” he said.

The court unanimously ruled against the EPA in March, giving landowners more power to challenge compliance orders in court.

Target: Verrilli

With health care, Scalia’s primary target was Verrilli, the administration’s top Supreme Court lawyer. Defending the law’s requirement that Americans get insurance or pay a penalty, the solicitor general argued that uninsured people often receive care, even if they can’t pay for it, because of the “social norms to which we’ve obligated ourselves.”

“Well, don’t obligate yourself to that,” Scalia said.

Later, Scalia called one strand of the government’s defense– its contention that Congress could legally enact the law as a tax — “extraordinary.”

The following day, he mocked an assertion by another Justice Department lawyer, Edwin Kneedler, as the court considered what would happen to the rest of the law should a key provision mandating that most Americans obtain insurance be declared unconstitutional. Kneedler said the court should look at “the structure and the text” of the 2,700-page statute.

“Mr. Kneedler, what happened to the Eighth Amendment?”Scalia asked, referring to the provision of the U.S. Constitution that bars cruel and unusual punishment. “You really want us to go through these 2,700 pages?”

‘Statute’s Gone’

At times during the health-care debate, Scalia took to stating his position, rather than asking questions. He all but declared that he would vote to invalidate the whole law, not just the insurance mandate. “My approach would say if you take the heart out of the statute, the statute’s gone,” he said.

In a Labor Department case that concerns claims for overtime pay by drug-industry salespeople, lawyer Stewart urged the court to side with the employees and defer to the department’s interpretation of a federal wage-and-hour law.

Scalia, who directed a dozen questions and comments at Stewart, criticized the department for laying out that position in court filings, known as amicus briefs, rather than through formal rulemaking.

“This is part of a regular program that the agency has now instituted, to run around the country and file amicus briefs –is that it?” Scalia asked — again calling the approach“extraordinary.”

‘Please Mexico?’

Scalia described as “extraordinary” yet another administration position, this time when Verrilli urged the court to strike down Arizona’s illegal-immigration law. Scalia bristled when the solicitor general said “we have to have the cooperation of the Mexicans,” something Verrilli said the federal government could best secure without state interference.

“So we have to enforce our laws in a manner that will please Mexico?” Scalia said. “Is that what you’re saying?”

Not everyone thinks that Scalia has gone too far. Ilya Shapiro, an opponent of the health-care law who attends eight to 10 arguments each term, says he sees no change in Scalia’s approach.

“He’s sarcastic, and he goes right to the heart of the weakness of the advocate who’s in front of him,” said Shapiro, a senior fellow at Washington-based Cato Institute, which advocates for limited government.

On health care, Scalia was simply trying to “express his exasperation with the government’s assertion of power,” he said.

Troubling Pattern

To other Supreme Court lawyers, Scalia’s questions show a troubling pattern. Rather than merely probing legal arguments, he has served as a “partisan cheerleader,” said Doug Kendall, president of the Constitutional Accountability Center in Washington, which supports the administration on health care and immigration.

“It’s disturbing to see a justice use oral argument as a platform for expressing the talking points that you hear each night on Fox News,” Kendall said. “I can’t think of a serious question that he posed in either argument suggesting that he was open to have his mind changed.”

By: Greg Stohr, Bloomberg News, May 15, 2012

May 15, 2012 Posted by | SCOTUS | , , , , , , , , | Leave a comment

“Black-Robed Partisans”: More Outbursts Of Republican Wingnuttery On The Federal Bench

I’m sure you’ve probably heard about this by now, but it’s a pretty remarkable story: a Fifth Circuit Court of Appeals Judge with the silent acquiescence of two colleague on a three-judge panel dealing with a secondary challenge to the constititutionality of the Affordable Care Act freaked out yesterday and demanded that the Department of Justice file an immediate statement repudiating what the judge chose to interpret as the president’s defiance of the power of judicial review. Here is CBS’ Jan Crawford’s updated report after reviewing audio of the incident:

In the hearing, Judge [Jerry] Smith says the president’s comments suggesting courts lack power to set aside federal laws “have troubled a number of people” and that the suggestion “is not a small matter.”

The bottom line from Smith: A three-page letter with specifics. He asked DOJ to discuss “judicial review, as it relates to the specific statements of the president, in regard to Obamacare and to the authority of the federal courts to review that legislation.”

“I would like to have from you by noon on Thursday — that’s about 48 hours from now — a letter stating what is the position of the Attorney General and the Department of Justice, in regard to the recent statements by the president,” Smith said. “What is the authority is of the federal courts in this regard in terms of judicial review?”

Smith made his intentions clear minutes after the DOJ attorney began her argument, jumping in to ask: “Does the Department of Justice recognize that federal courts have the authority in appropriate circumstances to strike federal statutes because of one or more constitutional infirmities?”

Kaersvang replies yes, and Smith continues: “I’m referring to statements by the president in past few days to the effect, and sure you’ve heard about them, that it is somehow inappropriate for what he termed ‘unelected’ judges to strike acts of Congress that have enjoyed — he was referring to, of course, Obamacare — to what he termed broad consensus in majorities in both houses of Congress.”

In asking for the letter, Smith said: “I want to be sure you’re telling us that the attorney general and the Department of Justice do recognize the authority of the federal courts, through unelected judges, to strike acts of Congress or portions thereof in appropriate cases.”

Smith, who got his lifetime appointment from Ronald Reagan, is a conservative judge on a famously conservative circuit, notes ThinkProgress’ Ian Millhiser:

The United States Court of Appeals for the Fifth Circuit may be the most ideological court in the country. When the oil industry’s allies in Congress wanted to protect the industry from drilling lawsuits, they passed a bill trying to force those lawsuits into the reliably industry-friendly Fifth Circuit. When a high school cheerleader sued her school district after it made her cheer for her alleged rapist, the Fifth Circuit ordered the alleged rape victim to pay more than $40,000. When one of the court’s few progressives asked a series of probing questions to a prosecutor during a court hearing, Fifth Circuit Chief Judge Edith Jones yelled at him to “shut up” and asked him if he would like to leave the courtroom.

But Smith’s outburst of wingnuttery was pretty remarkable even by those standards. Orrin Kerr, a contributor to the generally conservative Volokh Conspiracy legal blog, initially called Smith’s gesture “extraordinarily embarassing to the federal judiciary,” and after listening to the audio backed down on that statement only to a small extent:

[T]he tone of the questions was quite different from what I was expecting based on the story. It came off to me as earnest and genuine, not just an effort to score a cheap political point. With that said, the order still strikes me as highly inappropriate: The DOJ lawyer was quite clear as to DOJ’s position, and lower court judges deciding cases based on briefing and argument should not be going outside the record to come up with assignments to litigants based on press releases by politicians in such politically charged matters. It just makes the judges look like political actors themselves, which doesn’t help anyone.

For the most part, though, Smith is enjoying high-fives rather than rebukes from the conservative commentariat. And it’s all a real through-the-looking-glass moment for those of us who remember decades of conservative demonization of the federal courts and the arrogance of “unelected judges” thrwarting the popular will on civil rights, civil liberties, abortion, gay rights, and so on and so forth. Not that very long ago, the late Richard John Neuhaus, considered one of a small handful of the most important conservative thinkers in America, proposed what amounted to a right of revolution against the illegitimate “regime” of federal judges. Not every conservative agreed, but he received a respectful hearing for this extremist position.

But all previous positions, it appears, and all previous standards of appropriate behavior as well, must be abandoned when it comes to the overriding task of opposing Barack Obama. That’s fitting, given that the underlying issue here is Obama’s adoption of the individual health insurance purchasing mandate originally crafted by conservatives.

A lawyer friend of Kevin Drum’s offered him this immediate reaction to the Smith incident:

This is meant to embarrass the President. Full stop. Jesus, this is getting scary. It just seems like all out partisan war brought by the Republicans from all corners of the Government. They want to push it as far as they can. And then further. It’s incredibly destructive.

“They want to push it as far as they can” is a comment applicable to the conservative movement generally in its assault on the conventions of American law and government as generally accepted towards the end of the twentieth century. It’s just a little startling to hear its battle-cries echoed from the federal bench.


By: Ed Kilgore, Contributing Writer, Washington Monthly Political Animal, April 4, 2012

April 5, 2012 Posted by | Federal Judiciary | , , , , , , | Leave a comment

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