Mary Beth Buchanan -- 'I am open to considering further service to the United States.' (Bob Donaldson/Post-Gazette)

Mary Beth Buchanan, the U.S. Attorney for the Western District of Pennsylvania, has announced that she will forgo the customary courtesy of handing in her resignation when President Obama takes offices, saying “It doesn’t serve justice for all the U.S. Attorneys to submit their resignations at one time.” A mild blogospheric uproar has ensued at the nerve of this woman.

Faiz Shakir, for one, seems to be irritated about the whole thing, for reasons which should be obvious.  (They must be, since he doesn’t bother to explain.)

Barbara O’Brien isn’t surprised.  “Once again, we see that Republicans don’t think the rules apply to them.”  Granted, none of the other 92 Republican U.S. Attorneys have followed suit.  But, still, this is just the way Republicans are.    This Republican plot to undermine the Republic will have dire consequences: “If she doesn’t resign that doesn’t mean she can keep her job. If a new Attorney is appointed and confirmed by the Senate for her position, she’s out, whether she resigns or not.” Steve Benen agrees: “I’m going to go out on a limb here and guess that the Obama administration will replace her very quickly if she refuses to step down.”

So, what’s the big deal?

Well, Radley Balko figures this is a calculating move: “My guess is that this is a stunt to force Obama to fire her, at which point she’ll make a public stink, play the martyr, then attempt to parlay the resulting controversy into a run for the Senate, or perhaps for governor of Pennsylvania.”  Of course, that would require a plurality of the voters of Pennsylvania to decide she’s the least bad candidate for the job.  And it’s going to be mighty hard to be a martyr when the other 92 Attorneys resigned on cue.

Digby fears a palace coup.

This is a Republican soldier and if Obama attempts to fire her, she will become a martyr to the cause. And she’s not alone. They are all over the Justice Department.

When the US Attorney scandal broke, you’ll recall that there was a lot of wingnut chatter saying that because Bill Clinton had asked for the resignations of all US Attorney’s at the beginning of his term, Bush had a perfect right to fire US Attorneys who refused to do political dirty work. They set the stage for this at the time. It was entirely predictable that the new administration would be held to a completely new standard — he would not be allowed to fire any US Attorney who had been appointed by Bush for any reason at all or risk being accused of using the Justice department for partisan gain. It’s how they roll.

[...]

If she stays, she will be working against the Obama administration from within. There are probably many others like her at all levels, some burrowed very deeply.

Is Buchanan a political hack?  Apparently.   Should she resign like everybody else?  You betcha. Is it a big deal if she doesn’t?  Nope.

The idea that there’s going to be a major uproar at the replacement of political appointees is absurd.  O’Brien’s questioning of his legal bonafides and intelligence notwithstanding, Steve Bainbridge is right: “Either the US Attorney job is a political one or not.”  It is and we all know it.  U.S. Attorneys are appointed rather than being career employees because it’s inevitable that the Justice Department, also headed by a political appointee (the Attorney General) will have differing priorities based on the views of the president.  (That’s not to excuse the abuse of government power to advance partisan political interests, but a recognition that resources are limited and have to be prioritized in some manner.)

Obama will need to appoint replacements for Buchanan and her 92 cohorts.  I’m guessing he’ll make her seat an especial priority.  Once the Senate has confirmed a new USA for the Western District, she’s out.  And if she refuses to leave then, she’ll be politely escorted out by a federal marshal.

Whilst perusing Talking Points Memo earlier, I noted that Josh Marshall and company had won the George Polk award. Having never heard of said prize and casually presuming that it was in some sort of blog-specific category, I didn’t bother to click through.

Will Bunch’s post, “A landmark day for bloggers — and the future of journalism,” highlighted at memeorandum puts it into context.

The George Polk Awards are kind of like the Golden Globes of American journalism . Not as well known as those Oscars of the news business, the Pulitzer Prize, the Polk Awards are nevertheless probably a close second in terms of prestige.

Marshall (with staff reporter-bloggers Paul Kiel and Justin Rood) won the prize for their work in drawing attention to and connecting the dots in the U.S. Attorney firing scandal.

Gawker’s headline, “Blogger Wins Journalism Award, Printing Presses Spontaneously Combust,” is amusing and has more than a grain of truth. It’s supposed to be the New York Times and the Washington Post getting these awards, not stinkin’ bloggers.
TPM isn’t an ordinary blog, of course, in that Marshall has assembled a full-time staff dedicated to investigating and breaking news. Still, it shows the potential of citizen-journalism.

Michael Mukasey, a respected retired judge without close ties to the Bush Administration, will be nominated as the next Attorney General. Barring some dramatic revelation, he’s expected to sail to easy confirmation.

President Bush has decided to nominate Michael B. Mukasey, a former federal judge from New York who has presided over some high-profile terrorism trials, as his next attorney general and is expected to announce the selection Monday, according to several people familiar with the decision.

Should the Senate confirm him, Mr. Mukasey (pronounced mew-KAY-see) would become the third attorney general to serve under Mr. Bush. As the top law enforcement officer in the United States, he would preside over a Justice Department that has been buffeted by Congressional inquiries into the firing of federal prosecutors and the resignation of the previous attorney general, Alberto R. Gonzales.

Unlike Mr. Gonzales, Mr. Mukasey is not a close confidant of the president. Nor is he a Washington insider. But people in both political parties say he possesses the two qualities that Mr. Bush has been looking for in a nominee: a law-and-order sensibility that dovetails with the president’s agenda for the fight against terror, and the potential to avoid a bruising confirmation battle with the Democrats who now run the Senate. With 16 months left in office, Mr. Bush can ill afford a drawn-out confirmation fight.

One of those Democrats, Senator Charles E. Schumer of New York, who led the fight to oust Mr. Gonzales, issued a statement on Sunday evening praising Mr. Mukasey — a suggestion that Democrats, who are already challenging Mr. Bush over the war in Iraq, have little appetite for another big fight. “While he is certainly conservative,” Mr. Schumer said, “Judge Mukasey seems to be the kind of nominee who would put rule of law first and show independence from the White House, our most important criteria. For sure we’d want to ascertain his approach on such important and sensitive issues as wiretapping and the appointment of U.S. attorneys, but he’s a lot better than some of the other names mentioned and he has the potential to become a consensus nominee.”

Even six months ago, it would have been inconceivable for Bush to choose someone for such a sensitive position that would earn such praise from Schumer, let alone a man without demonstrated loyalty to him. Going with a safe choice indicates that the president is bowing to political reality.

Amusingly, my wife and I are watching “The West Wing” on DVD and last night we saw the 9th episode, “The Short List,” about President Bartlett’s decision on a Supreme Court nominee. An unpopular president with an opposition Congress faced with a choice between a moderate who would sail through easily and give him a much-needed boost in the polls and an ideological soulmate that would require a bruising battle picked the latter. But that’s a TV show; this is real life.

Reuters Breaking News:

Attorney General Alberto Gonzales has resigned from office, an official confirmed on Monday. The Justice Department refused to comment on Gonzales’ departure but has scheduled a press conference for 10:30 a.m. EDT.

Good news, if long overdue.

Oddly, President Bush not only didn’t push this move on Gonzales but apparently tried to talk him out of it, at least according to Steven Lee Myers of the NYT:

Mr. Gonzales, who had rebuffed calls for his resignation, submitted his to President Bush by telephone on Friday, the official said. His decision was not announced immediately announced, the official added, until after the president invited him and his wife to lunch at his ranch near here.

Mr. Bush has not yet chosen a replacement but will not leave the position open long, the official said, speaking on condition of anonymity because the resignation had not yet been made public.

Mr. Bush had repeatedly stood by Mr. Gonzales, an old friend and colleague from Texas, even as Mr. Gonzales faced increasing scrutiny for his leadership of the Justice Department, over issues including his role in the dismissals of nine United States attorneys late last year and whether he testified truthfully about the National Security Agency’s surveillance programs.

Earlier this month, at a news conference, Mr. Bush dismissed accusations that Mr. Gonzales had had stonewalled or misled a congressional inquiry. “We’re watching a political exercise,” Mr. Bush said. “I mean, this is a man who has testified, he’s sent thousands of papers up there. There’s no proof of wrong.”

Mr. Gonzales’s resignation is the latest in a series of high-level departures that has reshaped the end of Mr. Bush’s second term. Karl Rove, another of Mr. Bush’s close circle of aides from Texas, stepped down two weeks ago.

The official who disclosed the resignation today said that the decision was Mr. Gonzales’s and that the president accepted it grudgingly. At the same time, the official acknowledged that the turmoil over Mr. Gonzales had made his continuing as attorney general difficult. “The unfair treatment that he’s been on the receiving end of has been a distraction for the department,” the official said.

You think?

ABC News highlights several of the controversies that plagued Gonzales’ tenure, including inconsistent testimony about the firing of U.S. Attorneys and the Terrorist Surveillance Program.

U.S. News‘ Paul Bedard reported Friday on rumors that Gonzales will be replaced by Homeland Security Secretary Michael Chertoff, who has “fans on Capitol Hill, is untouched by the Justice prosecutor scandal, and has more experience than Gonzales did, having served as a federal judge and assistant attorney general.” That move would go a long way to righting the ship at Justice. It would come at the price, though, of signaling yet again that DHS is viewed as a joke.

Congressmen running for re-election routinely tout all the money they’ve brought to the district and presidents love to personally hand out disaster relief funds during election season. While unseemly, that’s just the way the game is played. Marisa Taylor and Kevin Hall report that something a little more fishy has been going on, though, in recent years:

Top Commerce and Treasury Departments officials appeared with Republican candidates and doled out millions in federal money in battleground congressional districts and states after receiving White House political briefings detailing GOP election strategy. Political appointees in the Treasury Department received at least 10 political briefings from July 2001 to August 2006, officials familiar with the meetings said. Their counterparts at the Commerce Department received at least four briefings — all in the election years of 2002, 2004 and 2006.

The House Oversight Committee is investigating whether the White House’s political briefings to at least 15 agencies, including to the Justice Department, the General Services Administration and the State Department, violated a ban on the use of government resources for campaign activities. Under the Hatch Act, Cabinet members are permitted to attend political briefings and appear with members of Congress. But Cabinet members and other political appointees aren’t permitted to spend taxpayer money with the aim of benefiting candidates.

[...]

Administration officials denied that any Treasury and Commerce events were orchestrated to help the Republican Party win elections. The officials said White House aides who briefed the departments were careful not to encourage the appointees to act on behalf of the Republican Party on government time.

Given the Politicization of Everything that has been an ongoing trend during the last quarter century or so and that has been taken to a high at form by Team Rove, it’s more than reasonable to start with the assumption that something not quite right was happening here. Indeed, the only reasons for skepticism is the vagueness of the report and the relative infrequency with which this reportedly happened.

If Rove figured out as early as July 2001 that some advantage could be reaped from giving political strategy briefs to appointees at Commerce and Treasury, it’s really odd that he would only do it nine more times over the next six years.

Otherwise, a couple of things should be kept in mind. First, before anyone gets their hopes up too awfully high, remember that violations of the Hatch Act are subject only to administrative penalties up to and including removal from office; it is not a criminal act.

Second, it’s perfectly legal for appointees (and most other federal employees for that matter) to “campaign for or against candidates in partisan elections.” Moreover, Senate-confirmed appointees and employees of the Executive Office of the President have been, since 1993, exempt from the general Hatch Act provisions prohibiting “engage in political activity while on duty, in a government office, wearing an official uniform, or using a government vehicle.” Indeed, that’s why Karl Rove can be paid from the public treasury while plotting political strategy.

This sort of thing, though, is more dicey:

In the months leading up to the 2002 election, then-Commerce Secretary Don Evans, Bush’s former campaign finance chairman, made eight appearances or announcements with Republican incumbents in districts deemed by White House aides either as competitive districts or battleground presidential states. During the stops, he doled out millions of dollars in grants, including in two public announcements with Rep. Heather Wilson, a New Mexico Republican in a competitive district.

[...]

In 2006, Evans’ successor, Carlos Gutierrez, and his aides also made public announcements with several Republican congressional incumbents, including in the battleground states of Missouri, Pennsylvania and New Mexico. Weeks before the 2006 election, Gutierrez and Congresswoman Wilson announced $3.45 million in grants for Albuquerque organizations. Also in the weeks before the election, a deputy secretary and Republican Sen. Rick Santorum announced that the department would be investing $2.25 million in Philadelphia.

The same year, then-Treasury Secretary John Snow and Santorum announced an award of millions in tax credits to Pennsylvania organizations. Santorum later lost his seat.

Snow and his aides also made appearances in 2006 with Republican incumbents or doled out grants in Virginia, Iowa and Ohio, states seen as crucial to the GOP retaining control of Congress.

Presuming those monies were allocated by Congress, politicizing their announcement is within the bounds of the law. The Hatch Act does not allow employees, even political appointees, to “use official authority or influence to interfere with an election.” It’s more than a stretch, though, to call handing out previously approved grant money at a rally for the incumbent Congressman interference. Indeed, no one would have batted an eye if Wilson made the announcement herself and a cabinet member wasn’t there.

Still, regardless of the technicalities of the Hatch Act, this is at least as unseemly as renting out the Lincoln Bedroom to big donors or making otherwise legal fundraising calls from the wrong room in the Vice President’s office, as Bill Clinton and Al Gore were criticized for doing during the 2000 campaign. It’s funny how quickly the things that were objects of scorn when done by opponents become good ideas when parties change office.

Attorney General Alberto Gonzales is about to be put in charge of the death penalty at the state level. After all, he’s done such a bang-up job running the Justice Department!

The Justice Department is putting the final touches on regulations that could give Atty. Gen. Alberto R. Gonzales important new sway over death penalty cases in California and other states, including the power to shorten the time that death row inmates have to appeal convictions to federal courts.

The rules implement a little-noticed provision in last year’s reauthorization of the Patriot Act that gives the attorney general the power to decide whether individual states are providing adequate counsel for defendants in death penalty cases. The authority has been held by federal judges.

Under the rules now being prepared, if a state requested it and Gonzales agreed, prosecutors could use “fast track” procedures that could shave years off the time that a death row inmate has to appeal to the federal courts after conviction in a state court.

[...]

Prosecutors say many death penalty cases take far too long to resolve even when the issue of guilt is clear. Especially in the West, where the U.S. 9th Circuit Court of Appeals in San Francisco has blocked many executions, cases can take decades to wind through the courts. In its most recent term, the U.S. Supreme Court restored the death penalty in three cases in which the 9th Circuit had reversed the sentence.

[...]

On the other side, advocates for death row inmates and some legal experts say the rules would make a bad system worse. “It is another means by which people are determined to shut the federal courts down to meaningful review of death penalty cases,” said Elisabeth Semel, director of the Death Penalty Clinic at the UC Berkeley law school. “The inevitable result of speeding them up is to miss profound legal errors that are made. Lawyers will not see them. Courts will not address them.”

If we’re going to execute murderers, it makes sense to streamline and standardize the review process. There has to be a better way to go about it than having convicted murderers spend more than a decade in jail after sentencing doing a bizarre dance up and down the appellate process.

Still, this new rule flies in the face of our system of justice. Forget about the fact that Gonzales’ integrity and competence are under assault from both sides of the aisle. It’s not people would have been clamoring to give Janet Reno this power, either.

Why is a federal official being put in charge of something that’s clearly a state matter? Moreover, isn’t the appellate process a matter for the judicial branch? After all, the whole point of the trial and appeals system is to check the executive branch’s power.

If the blogosphere is any indication, there seems to be a widespread consensus that something’s not quite right here. As you’d expect, TPM’s Paul Kiel, ThinkProgress, Kevin Hayden at American Street, TalkLeft’s Jeralyn Merritt, Newshogger Cernig, and others on the left are up in arms over this. After all, they oppose the death penalty, the Bush Administration, Alberto Gonzales, or some combination of those. That doesn’t make their arguments any less valid, of course, but it makes them easier to dismiss by administration backers.

Not so much the near-universal condemnation of those in the right-of-center camp. Jonathan Adler dubs it “bizarre” and “odd.” His colleague Orin Kerr thinks it “kinda fishy.” (That’s the kind of complicated legal jargon you’d expect from two law professors!)

Steven Taylor argues, correctly I think, that this is another case of executive overreach under the guise of fighting terrorism (and one, I’d add, that has precious little to do with fighting terrorism) and “yet another example of the recent trend in the Republican Party, i.e., an interest more in power than in supposedly long-held principles (in this case, federalism).”

If there’s a rationale for this that they’re all missing, it doesn’t spring readily to mind.

Arlen Specter says that Alberto Gonzales was intentionally misleading in his testimony before the Senate on the U.S. Attorney firings but that he was merely a “wily witness” rather than a perjurer. TPM’s Paul Kiel has details:

Reading from a Supreme Court opinion on the statute of perjury, which said that a witness cannot be convicted of perjury simply because he is a “wily witness” who “shrewdly” evades the questioner by speaking “the literal truth,” Specter said that that’s what we have here. Gonzales is certainly “wily” and sought to mislead — but he spoke, in Specter’s judgment, “the literal truth.”

But “just because it’s not perjury,” Specter said, “doesn’t mean it’s the way that the highest ranking legal officer in the United States ought to respond to a Senate inquiry.” Specter went on to say that he thought that the conclusion of the committee’s investigation of the U.S. attorney firings would be to “end the tenure of Attorney General Alberto Gonzales.” When that conclusion will come, however, no one knows.

I agree with Specter on both counts. Presumably, however, “wily” is being used as a legal term of art here rather than in its common usage meaning “skillful” or “slick.” Bill Clinton was a wily witness; Gonzales is more like Wile E. Coyote.

As the sorry spectacle of the investigation into the firing of a dozen U.S. Attorneys for political purposes has unfolded, it’s been rather clear that Attorney General Alberto Gonzales has been both an incompetent administrator of his Department and a really bad liar, doing a lousy job of covering up something that almost surely didn’t need to be covered up. His testimony to Congress on the matter has been incoherent, contradictory, and, at best, disengenuous. He should have been fired long ago and President Bush’s insistence on sticking by him is baffling.

Oddly, however, Senate Democrats are now seriously pursuing a perjury probe over what seems, on the surface at least, among the least significant contradictions in his testimony and one that would be the hardest to prove. The dispute over which classified intelligence program was briefed to Congress three years ago strikes me as trivial. The smoking gun documents which allegedly contradict his testimony don’t prove much of anything.

Moreover, as unpopular as this administration is, the politics of this make little sense. This matter is incredibly complicated and convoluted, owing to the classification and technical nature of the programs in question, the long timeframe over which all this has evolved, and the intermingling of so many other issues. Indeed, having read the major news stories on the latest charges this morning, I’m not sure I quite understand them. And I’ve been paying far, far more attention to this than Joe Public.

While I think the Imperial Presidency charges are overblown, there’s not much doubt that the administration’s penchant for secrecy and claim to be the sole decider on matters of national security policy stretch the concept of checks and balances beyond recognition. Congress is right to fight back as an institution jealous of its own power; indeed, my guess is that would be happening even if the Republicans had retained the majority. This particular hill, however, seems a strange choice upon which to make that stand.

UPDATE: Kevin Drum and, especially, Steve Benen disagree. I remain unconvinced that the differing post-hoc recollections by two officials about which classified intelligence program a particular meeting was about rises to the level of perjury.

The Bush Administration announced yesterday it will ignore demands from Congress to issue contempt indictments for officials the president has ordered not to testify. Dan Eggen and Amy Goldstein report on the front page of today’s WaPo:

Bush administration officials unveiled a bold new assertion of executive authority yesterday in the dispute over the firing of nine U.S. attorneys, saying that the Justice Department will never be allowed to pursue contempt charges initiated by Congress against White House officials once the president has invoked executive privilege.

On its face, that hardly seems bold at all. It’s rather axiomatic that the head of the executive branch would decline to have his subordinates file charges against people for doing what he has ordered them to do. It would be an absurd outcome, indeed, were an official to follow the president’s orders and then be arrested by that president’s men for doing so.

There’s a wee problem, however:

Under federal law, a statutory contempt citation by the House or Senate must be submitted to the U.S. attorney for the District of Columbia, “whose duty it shall be to bring the matter before the grand jury for its action.”

So, it would appear Congress has taken this matter out of the president’s discretion.

But administration officials argued yesterday that Congress has no power to force a U.S. attorney to pursue contempt charges in cases, such as the prosecutor firings, in which the president has declared that testimony or documents are protected from release by executive privilege. Officials pointed to a Justice Department legal opinion during the Reagan administration, which made the same argument in a case that was never resolved by the courts.

“A U.S. attorney would not be permitted to bring contempt charges or convene a grand jury in an executive privilege case,” said a senior official, who said his remarks reflect a consensus within the administration. “And a U.S. attorney wouldn’t be permitted to argue against the reasoned legal opinion that the Justice Department provided. No one should expect that to happen.”

Essentially, the administration is claiming that the law is unconstitutional and daring Congress to get a court order deciding the question. Apparently, it’s never been decided because, in the handful of cases where the matter has come up, a deal has been struck between the administration and Congress rendering the controversy moot.

Steve Benen is amazed by “how truly radical” this is. “Let’s cut to the chase: the president and his team are arguing that once the White House claims executive privilege, there is no recourse. The president is accountable to literally no one — not the Congress, whose subpoenas can be ignored, or the federal judiciary, which can’t hear a case that cannot be filed.”

But the president is merely refusing to issue criminal indictments. There are other ways to get a case to court. Orin Kerr guesses, “after the U.S. Attorney refuses to prosecute, Congress has to file a civil action seeking an order compelling the U.S. Attorney to refer the case to the grand jury. Courts then have to deal with that issue first, which could take a while as it works its way through the appellate process.”

Jacob Sullum, under the amusing post title “Bush to Congress: Try and Make Me,” wonders, “Under this theory, could the president also block the prosecution of an official who, say, tortured a prisoner or conducted illegal surveillance, if the president determined that such measures were necessary, proper, and constitutional tactics in the war on terrorism?” Well, yes. He could do that under any theory of executive power I’ve ever heard of.

Similarly, Steven Taylor entitles his post, “Bush to Congress: The DoJ Only Has to Prosecute the Laws that I Like.” But, ultimately, isn’t that always the case?

The executive branch, whether at the federal, state, or local level, always has discretion over how to execute the law. Local beat cops decide whom to arrest or issue a citation and whom to let off with a warning or ignore altogether. Mayors decide to suddenly enforce antiquated laws because they’re getting complaints from the voters about something or another. Heck, Rudy Giuliani made his reputation as a law and order guy by cracking down on squeegie men and others committing minor offenses. At the federal level, Democratic and Republican presidents use their discretion to order their Justice Department to increase or decrease emphases on enforcement of whole classes of criminal activity.

Still, as Radley Balko observes, the implications in the specific controversy are stark, “This administration is essentially saying that it and it alone determines when the people who work for it have broken the law, and no other branch of government has any say in the matter.” It’s not quite saying that, though, merely that it is a co-equal branch with Congress and that it won’t have its claims of executive privilege trumped by congressional fiat. Presumably, as Orin Kerr noted, Congress could force the issue through civil litigation.

There are, of course, other recourses. As Balko notes, there’s always impeachment. Less drastically, as Mark Kleiman points out, the Congress can use the power of the purse to make things difficult for the administration. Further, as Taylor suggests, this may increase pressure to distance the U.S. Attorneys from the political process, making them independent of the president. As I argued months ago, that would be a good thing for a variety of reasons.

Both sides are playing political hardball here. The administration is, I think, wrong on the merits here: It seems to me Congress has every right to conduct oversight into these issues and the executive privilege claims strike me as weak.

Ultimately, the Supreme Court should step in and decide this. Congress should file a civil injunction to compel the U.S. attorney for the District of Columbia to empanel a grand jury in these matters. If the president intervenes, there will be a case in controversy, which SCOTUS should fast track. The other branches will then abide by that ruling. If the Court rules against the president and he refuses to obey, Congress will almost surely impeach him.

UPDATE: Marty Lederman offers no opinions on the merits of the administration’s claims has some interesting background on what he terms a “contestable conclusion.”

UPDATE: Glen Greenwald has an extensive and generally persuasive essay on the “rule of law” implications at stake here. Ultimately, though, it comes down to a hypothetical:

The great unanswered question of the Bush administration has been, and continues to be, whether, upon losing a judicial battle, they would explicitly claim the right to defy the judicial order on the ground that the order exceeds proper judicial authority.

It seems reasonable that, if the executive and legislative branch have limits to their authority — and they do — that the “weakest branch” should also have such limits. Beyond impeachment, though, there’s not much remedy given in the Constitution for perceived overreach since, indeed, the very power of judicial review is extra-Constitutional. Andrew Jackson once famously challenged the Court to enforce its orders and FDR threatened to expand the size of the Court and pack it with sympathetic Justices, so the question is hardly new.

Regardless, though, for the president to refuse to carry out an order from the Supreme Court, especially one in a case brought by Congress against him, would create a Constitutional crisis. The remedy, though, would be simple: Impeachment. That, ultimately, is the constraint on an overreaching executive. Short of that, the branches are merely exercising their invitation to struggle, a practice which goes back to the days of George Washington’s administration.

A NYT editorial calls for an investigation into the successful prosecution of former Alabama governor Don Siegelman.

It is extremely disturbing that Don Siegelman, the former governor of Alabama, was hauled off to jail this week. There is reason to believe his prosecution may have been a political hit, intended to take out the state’s most prominent Democrat, a serious charge that has not been adequately investigated. The appeals court that hears his case should demand answers, as should Congress.

Steve Benen (who is simultaneously blogging at his own site and subbing for both Kevin Drum and Josh Marshall) thinks the story has “legs.”

Now, I’ve called here and elsewhere for a depoliticization of the entire U.S. Attorney system on the grounds that having prosecution decisions made by partisan appointees gives rise to these kind of questions. Still, Siegelman’s case would seem an odd one to hang one’s hat on in this fight. He was, after all, convicted by a jury on multiple felony counts.

As I noted in my first post on this matter nearly two years ago, “Siegelman is one of the few Democrats I’ve voted for, although I later came to regret it.” I also expressed concern about the bringing of “charges for public corruption that allegedly took place more than seven years ago.” As more evidence came out, though, it was pretty clear Siegelman was taking massive bribes from former HealthSouth CEO Richard Scrushy and others in classic quid-pro-quo fashion.

Cross-posted from PoliBlog:

Via the LAT, Minnesota case fits pattern in U.S. attorneys flap:

A hint at why Heffelfinger’s name was on termination lists that Justice Department officials and Bush political strategists put together emerged when Monica M. Goodling, the department’s former White House liaison, testified last week before the House Judiciary Committee about the firings.

Goodling said she had heard Heffelfinger criticized for “spending an excessive amount of time” on Native American issues.

Her comment caused bewilderment and anger among the former U.S. attorney’s supporters in Minnesota. And Heffelfinger said it was “shameful” if the time he spent on the problems of Native Americans had landed him in trouble with his superiors in Washington.

But newly obtained documents and interviews with government officials suggest that what displeased some of his superiors and GOP politicians was narrower and more politically charged — his actions on Indian voting.

About three months after Heffelfinger’s office raised the issue of tribal ID cards and nonreservation Indians in an October 2004 memo, his name appeared on a list of U.S. attorneys singled out for possible firing.

The evidence continues to mount that what was going on with the US Attorney firings and maneuverings was to try and use the offices to create electoral advantages for Republicans. That is simply wrong and is the kind of thing that happens when partisan political concerns begin to outweigh the fact that what administrations are supposed to do is govern once in office, not simply worry about how one’s party will win the next election.

We keep coming back to this issue of voter fraud–indeed, a few weeks back I noted that at least half of the USAs targeted for replacement had been criticized for not going after enough voter fraud cases. It is important to understand that “voter fraud” is almost always an phrase used by Republicans concerned about a situation that affects them, just as Democrats tend to worry about “voter suppression.” I think that part of the reason that a lot of folks don’t think that there is an issue here is that who wouldn’t want to stop voter fraud? However, if the issue is about helping one party to the detriment of the other, we aren’t talking about a crusade to help democracy, we are talking about abuse of power.

Clearly the political arm of the White House (i.e., Rove and company) thought that they needed to use the law enforcement mechanisms of the US government to root out problems that might be adversely effecting the GOP at the ballot box. For example:

Suspicion of Indian voter fraud was strong among Republicans in the upper Midwest in advance of the 2004 election. The GOP blamed what it said was fraud on Indian reservations for the narrow victory of South Dakota Democratic Sen. Tim Johnson over Republican candidate John Thune in 2002.

Part of the problem, of course, is that suspicions are one thing while evidence that would warrant legal action is quite another. Indeed, if there were serious voter fraud problems out there, they should be pursued and prosecuted. The problem however, is that to date the evidence of a pervasive voter fraud is scant (also here). And, it should be noted, this lack of evidence occurs in the context of an active push by the administration to find it. (Also see Josh Marshall for more on the fraud issue.)

Ultimately there are two ways that voter fraud could be pursued. One is to pursue it in the face of evidence and to do so because it is a crime and it damages democracy. Another way is to pursue voter fraud because one thinks it is damaging one’s own party and therefore one tries to use the law enforcement mechanism of the government to try and find advantages for one’s own party.

The former is good and virtuous, the latter is not.

As a side note, Feffelfinger’s replacement, Rachel Paulose, has been in the news recently over charges that she is in over her head. See here.

An irony here is that according to the above-cited LAT piece, and Monica Goodling’s testimony, Paulose was chosen at least in part for ideological reasons:

On his way out, Heffelfinger recommended that Joan Humes, the No. 2 person in the office, be named interim U.S. attorney. But Humes was rejected by the Justice Department — in part, Goodling testified, because she was known to be a “liberal.”

The job went to a conservative Justice Department employee, Rachel Paulose. She had Ivy League credentials, brief experience as a prosecutor, and as a private lawyer had helped bring election lawsuits on behalf of the Minnesota GOP. She declined to comment for this article.

Now, that the Bush administration would want a “conservative” rather than a “liberal” in the slot makes perfect sense and is hardly sinister. However, what the overall situation continually seems to indicate is that the ideological/political dimension was paramount with the whole qualifications dimension being rather secondary, if not tertiary. It is, after all, possible to hire persons who are both ideological compatible with the administration and qualified for the job–yet, that doesn’t appear to be a priority.

The ultimate problem seems to be that the goal in this whole USA affair has been to help find ways for Republicans to win office in the future, without recognizing that the point of winning elections in the first place is to run the government for a set amount of time. Indeed, it often seems that politicians are so fixated on the next election that they forget why we have the elections in the first place.

Stefan Sharkansky (via Patrick Frey via Pejman Yousefzadeh) has some rather persuasive evidence that John McKay, the recently fired U.S. Attorney for the Western District of Washington, did an amazingly sloppy job of investigating allegations of . . . wait for it . . . voter fraud in the 2004 Washington governor’s race that was decided by 133 votes.

We have been presented with sufficient evidence in recent weeks to make clear that there was improper politicization of hiring at the Department of Justice at levels below the appointee level and that “voter fraud” and “poor performance” are implausible explanations for why some U.S. Attorneys were fired. In this one case, at least, both claims would seem to have merit.

Steven Taylor has two posts (here and here) on the revelations from yesterday’s testimony by former DoJ official Monica Goodling.

Aside from the obvious points about how it would be nice to have the people in charge of enforcing federal laws actually obey those laws, he makes a point many seem to miss:

I remember during the Clinton administration an ongoing theme amongst conservative commentators: a desire for “adults” to be in charge. How anyone who criticized the Clinton cabinet and staff for being overly immature can now defend this situation as anything other than a bunch of juveniles in charge of a key federal bureaucracy is beyond me.

Quite right. I heard a bit of her testimony late yesterday afternoon on the way in to a function in D.C. and it struck me that, moreso than being part of a sinister plot to politicize that which by law is supposed to be above partisan politics, she was simply in over her head.

Many of us rightly criticized Bill Clinton for filling key spots with under-35 wunderkinds with degrees from Oxford and the Ivies, who seemed to view governance as an extension of the dorm room bull sessions. From Cheney to Rumsfeld to Wolfowitz to Powell to Rice, Bush took the opposite approach, putting in people whose resumes were manifestly superb for the positions for which they were chosen (whatever one thinks of their subsequent performance). Unfortunately, from the administration of Iraq to the important second tier appointments, Bush went with the likes of Brownie, Goodling, and Harriet Miers.

Loyalty to the boss, the party, and their ideology is a reasonable enough expectation for executive appointees. The president has to be able to delegate day-to-day running of agencies to these people and to have faith in them. But, surely, there are plenty of people who fit that profile who are also actually competent and experienced?

The idea that a person applying for a senior career position would be interviewed by some kid in her early 30s with a dubious law degree and manifestly inferior qualifications to their own is simply insulting. And, to certainly, it’s no way to run a railroad.

President Bush has issued a statement praising Attorney General Alberto Gonzales’ performance before the Senate yesterday, saying he was “pleased” and that it “showed that nothing improper occurred.” Given the formal nature of the release, he stopped short of saying, “Gonzie, you did a heck of a job.”

I missed the hearings yesterday but, from what I gather, the president is alone in his assessment. Not only did most of the Republicans on the committee, including conservative stalwarts like Sam Brownback and Tom Coburn, directly or indirectly tell Gonzales to resign, even the staunchest administration supporters in the blogosphere thought it was dreadful.

Patrick Frey: “I can’t tell you how pathetic he sounds. Please resign. Put us out of our misery. Please.”

Ed Morrissey: “Gonzales is toast.”

Byron York: “a disastrous morning.”

Paul Mirengoff is the only prominent right-of-center blogger I’ve found even somewhat supportive. Even he allows that he would “prefer a more hands-on Attorney General.”

Hugh Hewitt has been too busy trying to figure out whether the families of the Virginia Tech shooting victims can sue NBC for “the intentional infliction of mental or emotional distress” to comment thus far.

Via the AP: Gonzales to Appear Before Senate Panel

Attorney General Alberto Gonzales was to be summoned to a Capitol Hill showdown Thursday as he fights to save his job in the face of calls for his ouster over the bungled firings of eight U.S. attorneys that Democrats say were driven by party politics.

The Senate Judiciary Committee scheduled a daylong hearing for Gonzales’ first appearance under oath since the firings set off an uproar in February that has only escalated with a bewildering series of conflicting accounts from the attorney general, his current and former aides and White House officials.

[...]

The Virginia Tech shooting that delayed the hearing for two days could temper the tone of the proceedings, several lawmakers said. But both Democrats and Republicans were eager to get on with the Gonzales matter.

Perhaps (in re: tone), but we shall see.

I was wondering if the hearings had taken place but had been buried by the Va Tech shooting, but it makes sense that they were delayed.