by emptywheel
As Christy has reported, Senators Schumer, DiFi, Feingold, and Whitehouse have called on Paul Clement to appoint a Special Counsel. I'm underwhelmed with the idea, for several reasons. First, Clement is clerkship spawn of Laurence Silberman and Antonin Scalia, both of whom have well-earned reputations for putting their partisan loyalties (and duck hunting hobbies) above their commitment to independent justice. So what's to stop Clement from appointing Ken Starr, who I'm sure could declare Alberto Gonzales innocent before the end of August's recess?
There is, of course, the outside chance that Clement would do the right thing and appoint someone who could bring some independence to the investigation. To offer a ray of support for the suggestion, Clement is many smart people's first choice to be the answer to this Sidney Blumenthal puzzle.
QUOTE
Yet another Bush legal official, even now at the commanding heights of power, admits that the administration's policies are largely discredited. In its defense, he says without a hint of irony or sarcasm, "Not everything we've done has been illegal." He adds, "Not everything has been ultra vires" -- a legal term referring to actions beyond the law.
At the time, I voted for Fred Fielding, but I think Clement a very like candidate. So if he is, indeed, willing to publicly declare the Administration to be breaking the law, then maybe he'd pick someone competent. And heck--DC's a small place, maybe the four Senators calling on Clement know this.But aside from the question of whether Clement will pick someone competent, I have these two complaints. First, the Senators endorse the ongoing IG/OPR investigation of the USA firings.
QUOTE
While we believe the investigations of the Inspector General and Office of Professional Responsibility (OPR) are important and must continue, we believe the question of the Attorney General's truthfulness in testimony before Congress is sufficiently important to merit the appointment of a special counsel, and sufficiently distinct from internal Department matters the Inspector General and OPR are investigating.
Now, I haven't checked back this week to see whether Gonzales grated the IG the ability to investigate lawyers. But as of last week, there was a critical flaw to the IG investigation, which was that the IG side, which is the only office that can bring charges, was not permitted to investigate lawyers' conduct. And as I pointed out earlier this week, DOJ has played Lucy with its investigatory football so many times that we simply can't consider it serious anymore. Now, maybe the IG's office has since been given the authority to investigate lawyers, maybe the Senators know that the IG's office is making progress. Still, I think this comment cedes too much investigatory authority.
But what makes me really nuts is the proposed scope of this investigation:
QUOTE
The scope of the special counsel's jurisdiction should include the veracity of the Attorney General's testimony before Congress related to issues include the replacement and removal of U.S. Attorneys, the implementation of the PATRIOT Act's provisions relating to U.S. Attorneys, and the authorization for the NSA wiretapping program. It should examine whether misleading statements have been made to Congress and the public, and whether potential charges should be filed involving obstruction of justice, perjury, and false statements.
Did no one ever explain to the good Senators the problems with the passive voice? "Whether misleading statements have been made"? Ferchrissake, people! If you're trying to propose a narrowly-scoped investigation, you write, "It should explain whether Alberto Gonzales made misleading or false statements to Congress and the public." If you suspect we'll find other liars in this investigation, then say so. But don't--please don't--hide behind that passive construction!!! This is the English language here, not some bed you should hide under!
And while you're at it, specify "both before and after he became Attorney General," since he told some stretchers in his confirmation hearing and surely told some brazen lies while White House counsel. Again, a narrow scope is always nice when you're proposing a Special Counsel, but be explicit here.
But there are still problems with this scope. The Senators kind of mush obstruction of justice in there, which relates generally to Gonzales' brazen lies, but specifically to Gonzales' attempt to coach Monica Goodling's testimony. If you want our Special Counsel to investigate that, please say so.
Finally, though, the scope is just too narrow. There's nothing in here, for example, about Gonzales' endorsement of Presidential Records Act violations. Nothing about the endorsement of torture (one of Gonzales' stretchers at his confirmation hearing). There's just too much left out here, that needs to be investigated by someone independent.
Though perhaps I'm misreading the strategy here. Perhaps the four Senators only submitted this request to force Clement to say no, which would provide the perfect justification for moving to impeachment proceedings in the House. In any case, though, the four Senators have provided Clement with an opportunity to take the Ken Starr get-out-of-jail-free route. And even a legitimate Special Counsel will effectively end there, anyway, as the Libby example proves.
Argh. I guess saying I am underwhelmed is not strong enough language.