I don't know Sheldon Whitehouse (D-RI) but he struck me as a cross between David Gregory and John Larroquette, and he rocked yesterday. In writing my post, I found I couldn't summarize what he wrote, so I just transcribed all seven minutes. Here's you go, read it.
SW: Here's what concerns me Attorney General Gonzales. The administration of justice in our country is controlled within structures. Some of them are constitutional structures, some of them are statutory structures. but some of them are structures that have developed over time that amount to tradition and practice, but they are there for good and important reasons and my concern after reading your testimony after hearing your testimony today is that you don't seem to be aware of the damage to those structures that this episode has caused. And I'd like to run a few by you just to let you know where I'm coming from. The two areas where you ask us to agree with you in testimony. the first is that US Attorney can be fired at will by the President. That's undeniably true, but I think its use as a rhetorical point in this discussion is highly misleading, deeply misleading. Because I think you and I both know that for years, for decades, there has been a tradition of independence on the part of US Attorneys. Once they're appointed unless there is misconduct they're left to do their jobs and that rule, that practice has existed for good and meaningful reason and it can just be overlooked by just blithely saying the president has the power to remove these people. That misses the point. These people make tough decisions, they're out there on their own very often. Very often the DOJ and the political environment that surrounds it is one that you want to protect them from. And the idea that willy nilly that senior staff people can come out and have the heads of US Attorneys I think is highly damaging to that piece of structure. This was not customary practice, we can agree on that can we not?"
AG: Senator, I do agree on that and I do agree with that structures and traditions are important. I agree with that as well.
SW: Well the second piece of the structure there that I think is significant is that although you as Attorney General are in command of the administration of justice in the federal system, there's actually very little prosecution that takes place out of main justice. The enormous majority of the prosecutive authority of the US of A has been dispersed out into 93 judicial districts; and it's been dispersed to men and woman who have certain characteristics. One is that that they're from the local community and when they are done they go back and live in that local community and it's good for the administration of justice when they are accountable in that way for their decisions given the power and often terror that prosecutive action can take in a family. The second is that they gotta get a senator to sign off on them, in fact they gotta get a majority of the whole senate to sign off on them and a President of the US. And when those things happen, it creates a corps if you will, c.o.r.p.s. A corps of practicality, of common sense, of responsibility, of experience that I consider to be a huge value to the administration of justice in this country. And in every way in which this was handled it is highly destructive of that independence. Whether it's people from Justice going out and taking these positions; whether it's ducking Senate confirmation; whether it's not bringing people from the local community up to take those positions; or whether it's the general level of disrespect that's been shown for the US Attorneys through this whole process. And I guess I'd like to ask for you to comment. Do ya think that that's a structural component of the administration of justice, that dispersion of the authority out to 93 independent local US Attorneys that has value and that is important and should be protected?
AG: I do think it has value and I think that the independence of the US Attorneys is important. I think US Attorneys should feel independence to exercise their judgement in prosecuting cases based upon the evidence. However I have to qualify that a bit Senator in that with respect to policies and priorities. Again the President of the US is elected based upon his policies,...
SW: I'll spot you that Attorney General, but my point is that when you're making a decision like that, there's a counterbalance to it. When you go to Carol Lam and you say you know what, you're not doing enough immigration prosecutions therefore you're fired; there are all sorts collateral consequences of that some of which are really quite damaging and evil. Particularly when you're knocking off somebody who is known among her colleagues as being really the prime US Attorney in the country on public corruption prosecutions. It sends a really rough message. So in the balancing between the structural protections and the respect and all of that and this question of policy, I would hazard to you that you can't let the policy question just run away with the issue. You've got to think it through thoughtfully and I can't find a place in the whole tragic record of the situation in which that careful thought was administered.
AG: No question about it. No question about it that we have to take into account about how decisions may affect ongoing cases. There's no question about that. But I think it's important for the American people to understand that even when there's a change at the top with the Attorney General or a change at the US Attorney, the cases continue...
SW: That's true. As you and I know the leadership from the US Attorney makes a big difference that's why you felt these replacements were important in the first place. But if I may make my second point cause I'm running out of time here and it's the second thing that you suggest which is that we should further agree on a definition of what an improper reason for the removal of a US Attorney would be. And over and over again you've used the word improper as sort of your target word as to where the boundary is as to where you should and shouldn't go. But your definition of Improper is almost exactly the same as Kyle Sampson's. He came in here and testified, he said without consulting with anybody, and said that the improper reasons include an effort and I quote "to interfere with or influence the investigation or prosecution of a particular case for political or partisan advantage." And your testimony is to interfere with or influence a particular prosecution for partisan political gain. You've loaded up those words, you've used them repeatedly and I think that the definition of where impropriety lies, clearly that would be improper, that would be grotesquely improper. But I think you've set the bar way low for yourselves if that's your standard of where impropriety is. Because and I'd like to hear you comment on this. I think any effort to add any partisan or political dimension into a US Attorney's conduct of his office, irrespective of whether it's intended to affect a particular case or not, is something that we need to react to firmly, strongly, resolutely, and without any tolerance for it and yet you've set the bar so that it's not impropriety until it affects a particular case. Why did you do that?
AG: Senator because the accusation that have been made, primarily, certainly as an initial matter was that there was something improper, that we were trying to interfere with particular cases. That's why, certainly the focus in my mind was to focus on ok, well what is the legal standard, and I think it's important for us to understand, as an initial matter, what is the legal standard, what would be inappropriate or improper?
SW: But something a lot less than that would be improper would it not? I mean when Admiral Byng got hanged there was a famous comment that every once in a while you gotta hang an admiral just to encourage all the others. Ya know, if you hang a US Attorney every once in a while just to discourage all the others, even if your intention is not to affect a particular case ya have to agree that would be highly improper.
AG: Senator, it may be improper as a matter of management, some would have to wonder is that an appropriate way to manage the department, but again senator you have to understand...
SW: Otherwise it would be obstruction of justice correct?
AG: ...that these individuals have served their four years, they're holding over, there's no expectation of job here, there shouldn't be because of the fact that they are presidential appointees. Now clearly, as management issue there is value added to a person who's served as a US Attorney in terms of experience, expertise, and so...
SW: It's more than just a management issue. It's an issue about the structure through which justice is administered in this country. And when it's broken and when it's damaged and when the Attorney General of the US says that the only place where impropriety exists is when political and partisan influence has risen to the point that it's intended to affect a particular case but otherwise it's fine, I have a real problem and I think everyone in America US should have a real problem with that. My time has expired.
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