Monthly Archives: July 2008

Judge: Bolten and Miers must testify

A Washington, D.C. federal judge ruled Thursday that members of the administration do not enjoy absolute immunity from the reach of congressional subpoenas.

This is an answer to a legal conundrum that has been developing for a long time, as the Democratic Congress has pushed for answers from the White House over the U.S attorney scandal, detainee interrogation methods and more.

But U.S. District Court Judge John Bates gave the matter some clarity today, saying that former White House counsel Harriet Miers and Bush chief of staff Joshua Bolten could not refuse to testify in response to congressional requests.

Bates, by the way, was appointed to the bench by President Bush in 2001. He is also a member of the secret Foreign Intelligence Surveillance Court.

The White House had argued that staffers like Miers and Bolten were immune from congressional process. But Bates, in a 93-page ruling, said there was no legal foundation for that claim.

The White House position “is without any support in case law,” Bates wrote, adding that the contention that “Miers is absolutely immune from compelled congressional process” is “unprecedented.”

But the ruling was only a partial victory for Congress.

While ruling that Bolten and Miers had to testify, Bates said they were free to invoke executive privilege during that testimony for matters in which the privilege could apply. Meaning that it is likely if the two do appear, the matter will end up right back in front of Bates.

The administration is also expected to appeal to the federal appeals court in Washington, which will likely drag the case out past the end of this session of Congress. That would render the subpoenas moot.

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BREAKING NEWS: Favre just wants to play football

Multiple sources are now confirming that Brett Favre is really just a boy at heart, playing a boy’s game. That, of course, can be the only reason he turned down $20 million from the Packers to stay retired. This is like an ex-lover paying you to stay away, which, actually, does happen, I suppose.

The blog Pufferfish just wants Our Long National Nightmare to end. But there is no sign of that. ESPN is reporting this morning that the Packers could even consider trading the Gunslinger to Minnesota or, gasp, Chicago.

Will this put my beloved Chicago media into frothing overdrive. You had better believe it, cheesehead.

And can I just add this. Does anyone actually remember the Packers’ final possession in the NFC Championship Game?

“Make it work! Make it work!”

There is actually a whole YouTube subgenre dedicated to this pass:

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John Roberts: No health info


"Live right and you could end up like me!"

"Live right and you could end up like me!"

It was a year ago that reports surfaced from Maine that Chief Justice John Roberts had suffered some sort of seizure at his summer home.

This week, Tony Mauro, the skilled Supreme Court correspondent for Legal Times, attempted to discover the state of the chief justice’s health, sending him a series of writen questions about whether Roberts, 53, had altered his lifestyle in the wake of the seizure and whether he was taking medications?

His reply? “No comment.”

This isn’t new. When it comes to health issues, Supreme Court justices resemble nothing less than the Soviet Politburo. It may be because of tradition. Or it may be because they can. Or it may be because, as in the case of the Politburo, any suggestion of failing health touches off a surge of speculation about a justice leaving the bench.

Still, the Supreme Court is the third branch of government and Roberts oversees the workings of not only the court but the entire federal judiciary.

To David Garrow, a distinguished Supreme Court scholar and a professor at Cambridge, Roberts’ lack of disclosure just isn’t good enough. Garrow told Mauro:

“Given how much public attention his seizure attracted at the time, it ill behooves both the chief justice individually, and the Court as an independent branch of government, to refuse to comment whatsoever about a genuine matter of public concern involving one of the government’s top officials.”

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Don’t cry for them, Argentina?

"What made you think you could take Sundays off?"

"What made you think you could take Sundays off?"

The large law-firm world normally is fairly impervious to the economic roller-coaster.

Like Jerry Seinfeld, they typically are broad-based enough to be “even-steven.” If corporate work sours because of a downbeat business climate, then, hey, bankruptcy, foreclosures and litigation overall soars. Angry, dissatisfied, and desperate people sue.

But once in a while, a law firm’s foundation begins to crack. That’s what’s going on at Cadwalader, Wickersham & Taft. The New York firm Wednesday announced close to 100 layoffs, including lawyers ranging from senior partners to lowly associates. Most of the layoffs were in areas battered by the mortgage financing crisis.

The firm already laid-off 35 associates last January. The firm, with about 630 lawyers, is in an uncomfortable spot given the wave of consolidation that has struck the legal industry. Firms with global ambitions today seek to have sweeping practices that employ more than 1,000 lawyers worldwide. Other firms, without those ambitions, try to stay under 400 or 500 lawyers and concentrate on key, prosperous practice areas.

W. Christoper White, the firm’s chairman, told the legal magazine The American Lawyer:

“If it had been, as we anticipated in the early part of the year, a less severe contraction and not as prolonged a contraction, we would have ridden this out,” White says. “But it seems clear from the advice clients are giving us that this will be more severe and longer than we anticipated.”

Of the 96 affected lawyers, White says 90 percent “are being laid off because of the downturn in the real estate finance and securitization market.” The job reductions principally affect Cadwalader’s New York, Charlotte, and London offices (the majority are in New York); one or two Washington, D.C., lawyers also face cuts, White says. Most are associates, though some special counsel are affected.

Interestingly, the firm says it will still bring in 70 entry-level associates this fall for its first-year class. But they are (relatively) cheap labor who can do the dirty work at rates that please large corporate clients. (If you can call a starting salary in the mid-$100,000s “cheap.”)

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Shield law can’t make it out alive

Proponents of a bill that would help journalists protect confidential sources failed Wednesday to muster enough votes to move the legislation forward for a vote.

Supports still hope the move the bill, which has bipartisan support, by the end of the year. A compromise piece of legislation brokered by Sen. Chuck Schumer (D-N.Y.) appears to have enough support to pass, according to the Wall Street Journal.

The bill fell victim to election-year politics. Republicans have vowed to block any legislation that doesn’t address the nation’s growing energy crisis, but neither party has been able to agree on a compromise energy bill. Wednesday, only five Republicans voted to cut off debate on the shield law, including the bill’s sponsor, Sen. Arlen Specter (R-Pa.)

Schumer’s compromise attempts to address concerns about reporters who work with sources who divulge sensitive information pertaining to national security. Many of the recent flashpoints between the government and media have occurred in this context, including the leaking of CIA operative Valerie Plame’s identity and the dissemination of information from government sources that suggested former Los Alamos scientist Wen Ho Lee was a spy.

Large media organizations are overwhelmingly in support of the bill, which would create a qualified privilege if a journalist is presented with a subpoena asking for his sources.

Additionally, the bill narrows the definition of journalist in an attempt to separate professional news-gatherers from basement-dwelling bloggers. Although, as readers well know, that’s not always an easy distinction to make. I can, at least, tell you that I dont even have a basement.

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Actual t-shirt. . .

seen at the Crystal City Metro station around 8:30 p.m. Wednesday.

It reads:


Okay, I am no constitutional scholar (just ask Prof. Goldberger), but I’m fairly sure the Framers didn’t call each other “homeboy.” However, attendees at the Constitutional Convention in Philadelphia were not allowed to talk about their internal deliberations, so we can’t completely be certain that term wasn’t thrown around. Okay, yeah, now that I think about it, I could see William Paterson of New Jersey, maybe, just maybe, calling William Churchill Houston, also of New Jersey, his homey. 

That was probably better than James Madison and Edmund Randolph calling each other “fluffledodger,” which was a popular term at the time.

Here is an example of more Scalia swag:


This is the “What Would Scalia Do?” maternity T-shirt. And what would he do? Well, obviously you are going to have to have that kid, whether you like it or not, lady. (Joking. We joke here.)

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BREAKING NEWS: Favre has lunch

We are receiving a report now that the president of the Green Bay Packers, Mark Murphy, flew to Hattiesburg, Miss. today to personally meet with Brett Favre and ask him not to report to camp.

According to multiple sources, Favre left the building where the meeting was held about 1:30 p.m.

There is no word on what the parties had for lunch, but a plate of individually wrapped cold-cut sandwiches were seen near the meeting site. There was no indication of warm sandwiches being available, but sources close to the site would not rule out the presence of a microwave. 

Favre, thankfully, is not alone in this struggle. More than a few times in my career, my boss has told me that it might be better if I didn’t come in that day either.

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At Gitmo, Amnesty International calls Hamdan proceedings unfair


Salim Hamdan listens to the translated testimony of FBI agent Craig Donnachie about his interrogation of Hamdan July 24, 2007. (AP/Janet Hamlin)

Salim Hamdan listens to the translated testimony of FBI agent Craig Donnachie about his interrogation of Hamdan during trial on July 24, 2007. (AP/Janet Hamlin)

The international human-rights group Amnesty International Wednesday released a blow-by-blow account of the first week of the Guantanamo Bay trial of Salim Ahmed Hamdan, accused of supporting terrorism by, among other things, being Osama bin Laden’s driver.

Hamdan’s trial, which began last week, is the first under the Pentagon’s re-worked military commission system. In 2006, acting on a challenge from Hamdan’s defense team, the Supreme Court struck down the Pentagon’s first attempt at drawing procedures to try the Guantanamo detainees. That gave rise to congressional passage of the Military Commissions Act, which attempted to bring the tribunal’s procedures closer to the standards of constitutional due process. 

Defense Department charging documents say Hamdan, a Yemeni, was a member of al-Qaeda for five years, from 1996 to 2001 and in that time was an active participant in a conspiracy to attack the United States. Along with serving as bin Laden’s driver, the Pentagon says Hamdan was at times bin Laden’s bodyguard. And that he also transported weapons to al-Qaeda training sites and participated in training sessions.

Amnesty International has had attorney Matt Pollard at Gitmo to observe the proceedings and Wednesday he released a 23-page report detailing what the organization believes are flaws in the commissions process. Here is an excerpt: 

By the end of the week, serious problems raised by this system of special military trials, which abandon established international human rights and humanitarian law standards, were already evident. Many of these concerns have been discussed more generically in previous Amnesty International reports. However, the trial of Salim Hamdan is a first opportunity to see the trial procedures operate in practice.  Perhaps this is why the first case to be selected for trial is one of the less complicated ones, in the sense that it involves someone who is accused primarily of being a driver and bodyguard rather than of having higher-level involvement with al-Qa’ida, and who is not known to have been subjected to the more extreme forms of ill-treatment employed by the USA in the “war on terror”, such as water-boarding, a form of torture. Continue reading

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Mukasey says DOJ suffered from ‘institutional weakness’


Monica Goodling testifies before House Judiciary Committee in May 2007. (Pete Sousa/Chicago Tribune)

Monica Goodling testifies before House Judiciary Committee in May 2007. (Pete Souza/Chicago Tribune)

Attorney General Michael Mukasey Wednesday sent a letter to all employees of the Justice Department, repudiating the actions of former department official Monica Goodling and others who, a recent report said, made politically motivated hiring decisions.

Goodling was White House liaison while the department was run by Alberto Gonzales, himself the former White House counsel. A report from the department’s inspector general, Glenn Fine, released Monday said Goodling was the primary actor in hiring scores of prosecutors and immigration judges based on their political leanings.

Goodling quizzed candidates about their positions on social issues, particularly abortion. Among other things, she reportedly asked candidates: “What is it about George W. Bush that makes you want to serve him?”

Here’s what Mukasey wrote:

I was disturbed and disappointed by those reports: disturbed by the finding that some Department employees had violated federal law, rules and regulations; and disappointed that these actions have harmed the reputation of this great institution.

I want to reiterate to each of you what I have said repeatedly in private meetings with Department employees and in public appearances: It is neither permissible nor acceptable to consider political affiliations in the hiring of career Department employees. I have acted, and will continue to act, to ensure that these words are translated into reality so that what is described in the recent OIG/OPR reports does not recur.

Mukasey, a former federal judge tabbed last year to clean up the troubled department, said DOJ has taken steps to prohibit politically motivated hiring decisions and said that Justice had suffered from “institutional weakness.” But, he told employees, there was still room for improvement, saying “we continue to consider ways to improve the Department institutionally.”

You can read the IG report here.

Full text of the Mukasey letter after the jump. 

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Rove held in contempt (by Democrats)

The House Judiciary Committee this morning voted to hold former Bush adviser Karl Rove in contempt of Congress.

The vote, which broke down along party lines, wasn’t a surprise. Rove has refused all requests from the committee to appear and testify and ignored congressional subpoenas. Rep. John Conyers, the committee’s chairman, wants Rove to answer questions about the firing of nine U.S attorneys in 2006 by the Justice Department and whether the White House undly influenced prosecutorial decisions made by the department.

Rove has steadfastly claimed executive privilege, saying he cannot be compelled to offer testimony about advice he provided while in the White House and has denied any improper influence. 

The committee’s ongoing probe gained some momentum this week following a report from DOJ’s Inspector General that detailed the efforts of former Justice staffer Monica Goodling to recruit attorneys that were sympatico with the Bush administration during Alberto Gonzales’ tenure as attorney general.

<i> "I am bulletproof." </i>

"I am bulletproof." (AP/Charles Dharapak)

The resolution holding Rove in contempt will now go to the House floor for a vote. But even if the majority of the House agrees with the committee, it’s likely that will be the end of the matter. The resolution is referred to the U.S. attorney for the District of Columbia who decides whether to file charges against Rove.

Right now, that man is Jeffrey Taylor. Before he secured that job, he was a counsel to, you guessed it, Alberto Gonazales.

Maybe that’s why Rove didn’t seem to concerned about the vote. He attended at Washington Nationals game Tuesday night and appeared to be in high spirits.

The Senate Judiciary Committee Wednesday is holding a hearing that is examining the findings of the Inspector General’s report. 

You can read a copy of the IG report here. (By the way, it is never good when your name is included in the title of the report, is it?) 

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