March 17, 2007
Sen. Feinstein's Editorial Says U.S. Attorneys Issue Is Checks & Balances
Dianne Feinstein published an editorial today in the Los Angeles Times, apparently in reply to the paper's previous editorial saying that her proposed legislative response to the U.S. Attorney controversy was political and premature. Hers is called "Why Democrats are raising a stink," and the paper provides the subheading "Congressional investigations into the firing of U.S. attorneys are about checks and balances, not politics, says Sen. Dianne Feinstein."
Her editorial is a thoughtful and systematic refutation, highlighting the particular constitutional end-run concern and not just the sense of PR misdirection or the reputational damage to the fired prosecutors. But to be fair to the LA Times' original editorial, it was written January 26 (seems so long ago) and said that legislative action was [then] premature and in response to "rumors." Obviously many of the more worrisome facts, particularly as to the intended use of that last-minute Patriot Act provision to avoid Senate confirmation of the pod USAs, are not just rumors anymore. I suspect (hope) that even the original editorialist felt dismay and maybe a bit of betrayal later, upon reading administration emails touting the end-run strategy's political advantage -- and brazenly reasoning What's the point of having that executive authority if not to use it? -- thereby bruising exactly the checks and balances interest that Feinstein expresses and understandably values.
Others are arguing that the costs from this issue will be widespread in federal courts, as criminal defense attorneys challenge the replacement USAs and their prosecutorial legitimacy in light of recent revelations. They see a system-wide shock from playing such unvarnished and unchecked politics with such an important professional post, particularly without Senate confirmation of the subs. Already such defense motions are being filed, reports say here and here. Like this motion challenging Tim Griffin's appointment, filed in an Arkansas death penalty case. (Plus here is the White Collar Crime Prof Blog's Ellen Podgor on the Little Rock motion, and the blog's Peter Henning here on several recent DOJ/WH emails and especially prosecutor neutrality vs. "loyalty.") Expect many, many more like this motion, or better. They are not just limited, already, to Bud Cummins' replacement with Griffin in Arkansas.
On Tuesday, the Senate is likely to vote on the proposal to bring the U.S. Attorney appointments process back into confirmation by the Senate and have interim appointments made by U.S. District Courts, a system that was set up in the Reagan administration.
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