1. Cenk,

You should leave the legal stuff to the Power Line guys. That link you gave is one of the few that would say there is ever a time when the President is legally unable to fire a US Attorney. The rarity of that position is probably due to the fact that it is wrong.

The opinion in the link is based on 18 U.S.C. § 1512 (c), which makes it a crime for one who “obstructs, influences, or impedes any official proceeding, or attempts to do so.” Because this language is broad and ambiguous it could lead some to agree that the president could violate the law by firing the US attorneys in some circumstances. It is more likely that this provision does not apply to the president. The President is the chief law enforcement officer in the nation. US Attorneys act as his agents when they pursue legal investigations. Therefore, by definition, it would be impossible for the President to violate this statute. The statute should better be read that is unlawful for any person to obstruct, influence or impede any official proceeding without right.

Furthermore, any statute that would restrict the President’s ability to fire someone who is exercising purely executive authority would be unconstitutional (there are some executive officers who exercise quasi judicial and quasi legislative authority which the President cannot fire without cause). The Constitution gives the president complete authority over executive officers. That cannot be changed by statute.

Greg at 8:03PM on Mar 23rd 2007

2. So on Thursday Alberto Gonzales once again told us he is working tirelessly to be sure he has every American's back covered...especially our children. Should the alleged firing of six top performing U.S. Attorneys make us feel better?

I don't know about anyone else but I’ve always been suspicious of the guy that seems to go out of his way to tell you he’s "got your back covered".

See a sarcastic visual that demonstrates how many Americans feel when the Attorney General reassures us that he's got our backs covered...here:

http://www.thoughttheater.com/2007/03/the_white_house_goes_on_the_offensive.php

Daniel DiRito at 8:08PM on Mar 23rd 2007

3. Greg,

You're probably a knee-jerk supporter of (R)'s, but you may not be a bad person. So here's my advice: make up a reason why Gonzales "resigned" which has nothing to do with how he deserved it.

Gonzales WILL be gone soon and you need to have a fall-back position. I recommend the standard "hounded by the liberal media" argument even if a bunch of conservatives agree with Cenk. And if you believe any president should fire -- without dire consequence -- any prosecutor who is targeting criminals in the "wrong" party, I look forward to your spirited defense of Hillary.

If you still believe Saddam was connected to 9-11:
http://thinkprogress.org/2006/08/21/bush-on-911/

lil_turk at 7:22PM on Mar 24th 2007

4. Lil_turk

Thank you for not assuming I’m a bad person because I have Republican tendencies. I have never been a big fan of Gonzalez, and I have no idea if he will resign any time soon. My hunch is that he will stay unless something comes to light that we don’t know now. It would probably be best for the administration if he were to stay. If he resigns the Democrats will simply trump up charges on another administration official.

Gonzalez’s biggest problem is that he has handled this whole issue poorly. There is yet no proof that there was any underlying impropriety with the firing the US Attorneys. The biggest issue has been the inability of Gonzalez to give completely accurate accounts of what went on.

You also stated, “And if you believe any president should fire -- without dire consequence -- any prosecutor who is targeting criminals in the "wrong" party, I look forward to your spirited defense of Hillary.” There is a lot in that small sentence. First of all, I do not believe it is proper for a president to interfere with an investigation for partisan reasons. There is yet no proof that this administration did any such thing. What we are faced with are accusations with little evidence. The evidence provided is that some of the fired attorneys either prosecuted Republicans or chose not to prosecute Democrats. There is also evidence that those same Attorneys were underperforming.

I also am not sure whay you mean by “dire consequences.” I agree that if the President fired a US Attorney for improper purposes he should face consequences. Those consequences, however, must be political in nature. The US Attorneys serve at the pleasure of the president and he can fire them for any reason, improper or not. There cannot, therefore, be any legal consequece for the President’s actions.

Greg at 8:24PM on Mar 24th 2007

5. Greg,

I meant dire political consequeces because those are the only ones that can affect our president and Cheney. They can do anything they want and as long as they maintain enough support in the senate not to be convicted after impeachment, they will suffer no consequences.

After Lam nailed Cunningham and was set to continue investigating his allies, why are you so confident there was "no" proof? You're statement seems unequivocal. How can you be so sure?

And thank you for making up an excuse besides the "liberal media." That the (D)'s will "trump up charges on another administration official" is perfect because it denies there could be any reality to the current investigation and the many to follow.

Finally, you didn't address the link. You're smart, so tell me why (R)'s continue to say Saddam was responsible for 9-11.

Later,

lil_turk at 7:47PM on Mar 25th 2007

6. Lil_turk

There may be a temporal correlation between the firing of Lam and the Cunningham investigation. But I don’t think that is proof that there was a political motivation for her firing. First, Cunningham is a crook who should have been prosecuted. It makes no sense for Bush to lay out any political capital for him. There were also serious reasons why Bush would want to let Lam go. Prosecutions in her district were down 37 percent. Particularly hard hid were border crimes, an area that the administration was emphasizing. The Border patrol union was publicly critical of Lam’s leadership. This seems to be the more likely reason for Lam’s firing.

On Iraq, I don’t know of any serious thinking republican who believes Saddam was directly responsible for 911. Instead, what 911 did was change the way we look at the world. Before 911 we understood that there were people in the world that hated us and wanted to do us harm. Every couple of years there were attacks on Americans killing some. In the greater scheme of things, however, these were minor incidents. Most never really imagined that these backward Islamists could every really do any serious harm to the United States. In that pre-911 mindset it did not make sense to go after Saddam. Sure, he was a tyrant with a menacing attitude toward American interests, but removing him was not worth the upheaval and death that would result from an invasion.

911 changed the thinking of many people. It made us realize that our nation and our economy are vulnerable. While it took a great nation of people to build what America has become, it takes a lot less to destroy it. What the backward Islamists cannot build for them selves, they can, more easily, bring down. 911 made us believe that we need to be more aggressive with our enemies. We realize that we no longer have the luxury to simply isolate countries like Iraq and go along with our lives. We need to destroy those who want to kill us before they obtain the means to accomplish their ends. With this new post 911 mindset the administration changed its view about Iraq. They viewed it as a serious threat that needed to be dealt with before it became too dangerous. So while Saddam did not directly cause 911 the tragedy of that day made the administration believe that he needed to be dealt with.

This may be similar to what happened in WWII. Shortly after Japan attacked Pear Harbor the United States made it its first priority to defeat Germany. It could have been asked, “what did Germany have to do with Pearl Harbor.” Instead, Pearl Harbor woke the nation up to the dangers of the world. When it was realized that we were fighting fascist tyranny in the world it made sense to defeat Germany before concentrating on Japan.

Greg at 1:03PM on Mar 26th 2007

7. This is a very interesting thread and I don't want to interrupt it or get in the way of the dialogue, but it seems like the whole thing is based upon a faulty concept in Greg's original argument, and if his logic is incorrect in his original argument it makes me wonder the validity and relevance of the rest of the comments?

What if, hypothetically speaking, the commander-in-chief-law-enforcement-officer (that's a mouthful) was unawares of the obstruction, or attempt at obstruction his actions were causing? This is not unprecedented. AG Meese was more aware of the ongoing criminal activity of the Reagan admin than Reagan was, to say nothing of his personal misconduct. People have commented on the fact that Dubya is more the heir to Reagan, in his style if not his substance (not really saying much there) than his own father, Herb. Reagan was not involved in Iran Contra on a daily basis, he wasn't a micromanager like a Cheney or a Rummy, and nor is this Bush. It is likely that our current president is to some degree in the dark, or unaware of the minutia of the illegal activity going on in his administration vis a vie the DOJ.


In what circumstances could you see people agreeing that the president could violate the law by firing US attorneys? You make the leap from improbable to impossible. Granted it is just semantics, and you are obviously using the art of rhetoric to try and soften your argument or appear to take in your opponent's point of view, but never-the-less you do say "more likely" as opposed to saying, oh I don't know, editing that down to just "This provision" and forgetting the clause.

I do happen to think that it was beyond coincidence the firing of Lam. I also happen to think that the rest of the firings were merely a smokescreen. I mean Iglesias? Why would they do that? I'm sure you can give me all the talking points. On the one hand, if they had just fired Lam, it would have appeared obscene, coming right after the letter from the House Republicans. On the other hand, they've really made things much much worse.

But the problem I have with the logic is that I feel there are two separate issues here. One is legality and motive, and the other is the constitution and due process, chain of command and checks and balances. And I think you've confused them.

Yes, I agree, it might very well be impossible for the president to break the law in this case. But that speaks nothing to the actions of the AG, or to whether or not Carol Lam being fired had anything to do with Duke Cunningham, Dusty Foggo, and Brent Wilkes.

Yes, you are right, it might be sheer coincidence, and you are right on point with the other suggestions of incompetence that have been offered before. But that is your opinion, and there are two problems here. One is that your opinion in this matter is different than your opinion in the constitutional matter. True, they are both legal matters to some extent, and whether constitutional law or current scandal, you have shown yourself to be an authority, or presented yourself as one. But your opinion with regards to the constitution seems to be based upon your legal knowledge, where as your opinion about the Lam matter seems to be based upon biased opinion, hearsay evidence, and your gut instinct, which is very different.

But never-the-less you may be right on both matters. Hypothetically though, if you will allow it, what if Gonzales acting at the bequest of Bush dismissed Lam because of the Cunningham matter. Who knows why, perhaps there is more to the Cunningham matter, involving national security, house earmarks, black-op top-secret attachments to military spending bills, multi-billion dollar defense contracts, the CIA, and psy-op special forces commanders in the field. Who knows though. But let us say for the moment that Bush was out of the loop, with a war and a country to run, and Gonzales is guilty as sin.

I agree, it might very well be impossible to prosecute, and in fact not technically illegal. But I just ask that you don't confuse your personal opinion on the one matter with your opinion in your area of expertise on the other. (Or present it that way, either intentionally or as part of a construct or framework to your argument you may or may not be aware of, to those that might not be able to distinguish the two. You are obviously more of a scholar than I, and I merely submit this as a request. I think you would be disingenuous though to say you were unaware, far be it for me though.) And while they might not be illegal in the technical sense, that says nothing as to whether they are impeachable offenses. But come on Greg, this is beyond the Pale, this unitary executive theory is just that, theory, and just one interpretation of the constitution. I mean theoretically, if I built a space ship that went faster than the speed of light, I could leave Earth for 10 minutes, come back and marry my great great grand daughter. But that's why they call it theory.

I'm also wondering, as an aside, how you feel about Tricky Dick, and your thoughts on the last days of Watergate, when no one wanted to fire Haldeman, and how you felt when AG John Mitchell turned trick and spilled. Nixon was ready to take the nuclear football to the west coast White House, call the troops onto the lawn, and make a coup attempt. Are there any bounds to the power of the president during war time in the minds of the men you admire? I take it you feel that the President is within his constitutional right to refuse congress's attempt to subpoena his aids, and that furthermore he has extraordinary powers as Commander-in-Chief during war time?

I'm just wondering, this really isn't related, but you seem fairly knowledgeable and logical and intelligent, though I don't know if it is first source or not. I'm just wondering, like I said this isn't related to the topic at hand, but one, do you feel we are still at war, two, do you consider us at war as part of the 2001 or the 2002 resolutions or both (War Powers Act and Joint Resolution to Authorize the Use of United States Armed Forces Against Iraq), and three do you feel the president would need authorization from congress to go to war with Iran, should he feel the need arise at some future date? Or would it simply be opening another front in the war on terror?

Dennis at 2:39AM on Mar 27th 2007

8. Dennis,

That was a long post and I will try to respond the best that I can.

In this issue there are two considerations: what the president legally can do and what he properly should do (or should not do). In that regard there are legal limitations to presidential power and moral limitations. It is my contention that if the president fired US Attorneys for partisan reasons because they prosecuted Republicans or refused to prosecute Democrats that would be perfectly legal but still improper.

I do not believe the statute in question applies to the president in any circumstance. When I wrote that it is likely that the provision of the statute does not apply to the President I meant that it is unlikely a court would interpret the language to apply to the President. Any time there is a statute with ambiguous language a court must ultimately determine what that language means. Furthermore, as I stated in my original comment, if a court determines that the statute does apply to the President that statute would be unconstitutional.

You stated that what is alleged to have occurred may not be technically illegal. I would agree. That is an important point. Either what happened is illegal or it is not. If not, nobody should be faced with legal consequences. That does not mean that if what was done was improper that there would not be political consequences. The ultimate political consequence is impeachment and removal. Ultimately what is impeachable is what the House of Representatives says is impeachable and what is removable is up to the Senate. I would argue that what is alleged here should not be impeachable, but that is not my call.

You mentioned the unitary executive theory. I think this whole issue has been hyped by some on the left to scare people. Article II of the Constitution states, “The executive Power shall be vested in a President of the United states of America.” This basically means that if a power is executive in nature it is vested in the President. You can call that unitary executive theory, but to me it is just common sense. In this case the prosecution of crime is executive in nature so the President is ultimately responsible for prosecuting crime.

I really don’t have many thoughts on Nixon (I was four when he resigned.) Suffice it to say, military coups are not within the President’s power. The president does have the power to keep his aids from testifying in some circumstances. This executive privilege has been recognized by the Supreme Court as an essential element of the separation of powers. Whether this is one of the circumstances where that privilege applies is yet to be seen.

Your last paragraph asks profound constitutional questions that people far smarter than myself have been debating for years. First, the War Powers Act has never been challenged in court, but every president since its passing has objected to its constitutionality. So whether the president must abide by the act is an open question. I don’t think the President needs to ask Congress before attacking Iran. This is an area where we might have outgrown our Constitution. I don’t think our founders contemplated a large standing army that could be quickly mobilized to attack a nation across the world. The Constitution gave the president the sole power to be commander and chief and the congress the sole power to fund armies, with a limitation that appropriations cannot be for longer then two years. In 1787 this two year restriction would probably prevent the president from taking aggressive military action without the cooperation of the Congress.

Greg at 11:48AM on Mar 27th 2007

9. Mission Accomplished! As far as I'm concerned the war in Iraq ended the day the president said it did, back in what was it, March of 2003, I can't even remember now it has beed dragged out so much longer than that. But as much as it is derided and made fun of, I do believe that it is an important date to remember. If you read the language of the joint resolution to go to war with Iraq, it is very concerned with weapons of mass destruction, the United Nations, and I don't believe what we are doing there now is covered by that legislation now matter how broad your understanding of the scope of the power it gave the president. So I do believe that if we are at war there now, and here again, semantics, is it a civil war, are we occupiers, is it an occupation? On the one hand, the generals speak of 9 years to win an occupation, but then we're not allowed to call it an occupation because that has broad ramifications for public opinion world wide; further, it brings to mind an insurgency fighting the occupiers. With years of cold war rhetoric embedded into our brains, we think of freedom fighters as those fighting for their homeland against a much bigger and more powerful superpower, albeit one painted and tainted as tyrannical, monolithic and heartless. If we are at war there now, I do not believe that either the War Powers act, nor the joint resolution would in any way, shape or form, have an iota to do with a U.S. attack on Iran.

Of course, if we continue provoking them, with strong rhetoric, and continue attacking their embassies, taking hostages, of course they are pressured into retaliating, as in the current shame with the British sailors. We, meaning the U.S. armed forces, still are holding the five members of their (Iranian) embassy we took when we stormed it back in January of this year. If we continue provoking them and they attack us, who knows, then you might have enough political capital to go to war with Iran, you might be able to squeeze another new resolution through the house and senate so that it wouldn't make a difference.

But barring that, the point is not moot. Many Americans look back and say they should have been more aware of what was going on in congress in 2001 and 2002 and they kick themselves for it now. Hindsight is 20/20, and they say if I only knew then what I know now. Likewise, this really should be the only thing on Americans minds' right now, are we going to war with Iran? That is the fundamental question of the day.

I do wonder at how some people look back at the framers of the constitution, which they must use to shower with instead of a towel because they wrap themselves in it everyday, and talk about how now it is time to grow out of the constitution, where as it is the bedrock they stand upon with Roe v. Wade and other issues. Seems like they want it both ways? Is it just something that they can use when it is in their own favor? Thomas and Scalia are probably going to go after Connecticut vs. Griswold soon, and after that start chipping away at both women's right and civil rights, which are the legal underpinnings of Roe. What about precedent, no no they say, the Constitution is clear and speaks on that. Oh but when you want the constitution to say something more to your liking on another issue, oh, now it is time to "grow" out of it? Come on, give me a break.

So is it a civil war there now? Did we really need a "surge" to fight a non-existent insurgency, or were we merely trying to scare Al Sadr into fleeing to Iran, to move the violence from Baghdad to the Dijlah province, and to win the hearts and minds by welcoming Arabic news and giving up on disinformation and embedded journalism. The point of that is now we are trying to win their hearts and minds not ours, but also that we've woken up to the fact that there are a billion Muslims in the world, that world opinion does matter and that not many of them are watching fox.

Remember when Bush said we had to stop calling them insurgents, switch back to calling them terrorists, and the very next day Tommy Franks calls them insurgents. Military intelligence, gotta love it. The point isn't small that we need to call them terrorists, forget about distinguishing between Persian Shi'ites, Arab Shi'ites, Sunnis, Iraqi Sunnis, Bathists, Kurds, Saddamists and any one else in the region. The point of labeling them as terrorists and not insurgents is important because this war with Iraq, since Mission Accomplished, is no longer covered by the Joint Resolution and is instead part of a broader war on terror, a second front if you will. Thus it is covered by the War Powers act, which was re-authorized shortly after the attacks on the World Trade Centers on September 11, 2001. And this has broad legal ramifications too for the prosecution of the war(s).

Because the precedent for, oh I dunno, say the misuse and abuse of prisoners at Gitmo, some of whom haven't been given any Constitutional Rights for the five years they've been there, goes back to 1918 and again to 1942, and has been expounded into the theory of the enemy combatant. Now I'm sure military scholars could trace it back further, but as far as I know that is the current history for it we're using. Thus the World War II Japanese internment camps, which many an open minded scholar has compared in the fifty some odd years since, with a more compassionate view, as being comparable to the Nazi prison camps, these very same interment camps have become a model for us now, both politically, figuratively, legally, as well as practically. That should disgust most people but they are both too ignorant of our own recent past and of what is going on now.

This would not be covered under the scope of a war with Iraq, or with the Joint Resolution. It shouldn't, it doesn't have anything to do with them. There is a lot of money to be made by military contractors. Most of the money we now spend on the war is going into the private sector, either for guns-for-hire mercenaries like Black Water, or sham building companies like KBR, the former subsidiary of Halliburton. They are cozy with big gov't and get no bid blind contracts worth billions. So there are people who have motive to benefit financially from the war. We have a rich history of war profiteers, why, look, well, right at our own president's family, the pages of his family history are rich with those of war profiteers.

The point being that the war in Iraq, and yes that is what it is, semantics aside, is being used to trump all else, and now that the American public is sick of seeing young men come home without limbs, and voted their mind, how long can we keep running on the Patriot Act, which was basically the realistic extension of the War Powers act. Eventually, we either need to be attacked again on the homefront, and when I say "need to be" I pray everyday that we aren't, I say "need to be" meaning in order to keep the fires of fear burning which keep enough people in a state of paranoia to keep provisions in the patriot act alive and well; like the power to snoop on our email like the power to imprison people for five years without the writ of habeas corpus.

Carol Lam was prosecuting Duke Cunningham. The question is was their a conspiracy. Is there a connection between Duke Cunningham, Dusty Foggo, Brent Wilkes, and Bob Ney? Was there a culture of corruption in the House that extended to the CIA and the pentagon and to defense contractors. And the more important question is, is this still going on? Has it been stopped? And in Gonzales firing Lam, did he impede, obstruct, or otherwise hamper not only Lam, but her team, from getting any closer to that truth. There isn't much more you can do to Cunningham, but a lot of the information in the puzzle was coming from none other than Jack Abramoff, who is currently in prison.

You know what, good I'm glad, I hope it is much worse, that all 19 of the House Republicans who signed on with Cunningham to pressure Gonzales to fire Carol Lam get away with it. I hope they are still bilking the American public of billions in no-bid contracts to companies like KBR and Halliburton. Fine, hey, the democrats are doing it too, come on, they're the tax and spend liberals for big government who've filled the current package with pork right?

The real shame isn't that sleaze like Cunningham, Norquist, Delay and Abramoff have been stealing billions, running our country into the ground, literally getting away with murder, the real shame isn't even that they were probably the tip of the iceberg and that prosecuting them won't lead to the end of their practices, which are probably still going on in secret. The real shame is that solid, respectable, hard working, responsible citizens like McKay and Iglesias had to take the fall to cover up. You couldn't very well just fire Carol Lam, two days after a letter from 19 House Republicans, one of whom was the one she was prosecuting, now could you, without looking a wee bit suspicious. The irony here, and I really hope people get the irony, because it is rather sweet, the irony is that they made it so much worse. How sweet it is. Ohhhh, ohh, how sweet it is.

Dennis at 1:19PM on Mar 30th 2007