The Challenge To Richard Cordray Not Being Discussed

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The internets are alive with the sound of excitement over the appointment today by President Obama of Richard Cordray to be Director of the Consumer Finance Protection Bureau (CFPB). And, as Brian Buetler correctly points out, by doing it today, the first day of the new legislative session, Obama (assuming he gets re-elected) has provided Cordray with the longest term possible to serve as a recess appointee:

By acting today, with session two of this Congress technically under way, Obama has given Cordray the rest of this session and the full next session of the Senate to run the bureau. Cordray could potentially serve through the end of 2013.

The Congressional Research Service outlined this in a recent report (PDF) — and the White House and Senate leaders of both parties confirm the analysis.

If Obama loses in 2012, that could shorten Cordray’s tenure — and of course Cordray can leave early if he wants to. But this move makes it much more likely that the CFPB will truly take root.

Most of the banter so far has been on the viability of Obama’s move to recess appoint in this manner. I have looked at this issue for years, going back to early in the Dawn Johnsen imbroglio, and find no reason to believe this was not a proper exercise of Presidential power and prerogative.

The long and short of it is, there is no restriction on timing of recess appointments by a President pursuant to Article II, Section 2 of the Constitution. Both the “10 day rule”, which got narrowed to the “3 day rule” were practices and, at best were based on non-binding dicta from an early 90s DOJ memo; they are not now, nor have they ever been, binding law or rule. Legally, they are vapor. The issue was actually litigated in the 2004 11th Circuit case of Evans v. Stephens.

And when the President is acting under the color of express authority of the United States Constitution, we start with a presumption that his acts are constitutional.2 See United States v. Allocco, 305 F.2d 704, 713 (2d Cir. 1962) (Recess Appointments Clause case); see also U.S. v. Nixon, 94 S.Ct. 3090, 3105 (1974) (observing “In the performance of assigned constitutional duties each branch of the Government must initially interpret the Constitution, and the interpretation of its powers by any branch is due great respect from the others.”).
…….
The Constitution, on its face, does not establish a minimum time that an authorized break in the Senate must last to give legal force to the President’s appointment power under the Recess Appointments Clause. And we do not set the limit today.

And there you have it. There is no minimum time. Also, somewhat significant, is that Evans was decided by the full 11th Circuit, not a three judge panel, and SCOTUS considered a full cert application, and denied it, leaving the 11th Circuit decision standing as good law and citable precedent.

Oh, and if you wonder if SCOTUS has a real hard on for Presidential recess appointments, the answer would appear to be no. During the oral argument in New Process Steel v. NLRB last year, Chief Justice Roberts scoldingly asked Deputy Solicitor General Neal Katyal “And the recess appointment power doesn’t work why?” I am not sure the blustering Republicans like McConnell and Boehner will find quite as receptive an ear from the Roberts Court as they think.

Well, as Beutler notes, things should be all rosy and good to go for Cordray and CFPB, right? Not so fast, there is another issue not receiving any attention by the chattering classes.

The CFPB was promulgated by a pretty bizarre act – The Dodd Frank Act – bizarre, specifically, in how it structures and empowers the CFPB in its various duties. Notably, several of the key powers flow not necessarily through the agency, but through the “confirmed director” of CFPB. If there is no director, the bureau is run in the interim by the Treasury Secretary. Yep, good ‘ole Turbo Tax Timmeh Geithner. Specifically, Section 1066 provides:

The Secretary is authorized to perform the functions of the Bureau under this subtitle until the Director of the Bureau is confirmed by the Senate in accordance with section 1011. (emphasis added)

So, in all this meantime, and despite the White House trying to put the patina on that Liz Warren was running the CFPB, it has actually been Geithner. And the problem with this has been (remember I said the enabling language was bizarre??) that not all of the full powers of the CFPB vest, nor can they be exercised, until there is a director.

A director “confirmed by the Senate” according to the literal wording of the Dodd Frank Act.

If I were speculating on legal challenges to Cordray, rather than focusing solely on Obama’s ability to so appoint him (which, again, I think stands up), I might be more concerned about the issue of whether Cordray has full powers to lead and operate CFPB because he is not “confirmed by the Senate”. That should be a stupid argument you would think, but the words “confirmed by the Senate” in the enabling act make it at least a very cognizable question.

Normally a confirmed appointee and a recess appointee have the same legal authority and powers but, to my knowledge, there is no other situation in which substantive power for an agency flows only through its specific “confirmed” director. If I were going to attack Cordray, I would certainly not restrict it to the propriety of Obama’s recess appointment, I would also attack his scope of authority since he was not “confirmed”. I would like to think such a challenge fails, but Congress sure left a potential hidden boobytrap here.

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A Note About OWS and Pre-Trial Diversion in Los Angeles

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I have seen a lot of garment rending on Twitter and in discussion forums I participate in about the Los Angeles Times report that a pre-trial diversion option is being offered to some Occupy Wall Street-Los Angeles protesters:

Many Occupy L.A. protesters arrested during demonstrations in recent months are being offered a unique chance to avoid court trials: pay $355 to a private company for a lesson in free speech.

Los Angeles Chief Deputy City Atty. William Carter said the city won’t press charges against protesters who complete the educational program offered by American Justice Associates.

He said the program, which may include lectures by attorneys and retired judges, is being offered to people with no other criminal history and who were arrested on low-level misdemeanor offenses, such as failure to disperse.

“Tin eared!” “Propaganda!” “Re-Education!” “Stupid!” “Tone-deaf!” “By a private corporation??” “Seriously, LA, this is the worst ever!” “Unbelievable!”

Those are a smattering of the responses I saw, and all are from people I know and respect greatly. And they are all wrong to take such umbrage at this report. Here is why.

Pre-trial diversion of criminal misdemeanor charges is an extremely common tool in municipal and other misdemeanor courts (and in some felon courts on the lowest grade offenses such as marijuana possession). It is, from a policy perspective, considered a win-win for both sides; the state and taxpayers avoid the cost of processing the defendant through the court system, and the defendant avoids having a conviction on their record (often avoid even having a formal charge lodged). But whether or not to offer pre-trial diversion lies entirely within the prosecutorial discretion of the state’s attorney. It is an option that can be offered, but certainly is not mandatory.

Just as pre-trial diversion is a voluntary option that does not have to be offered in the first place, the decision on whether to accept the offer is entirely up to the individual facing the charge. There is no punishment whatsoever for declining – none – they will stand in the EXACT same position vis a vis the state as if they had not been offered pre-trial diversion at all, i.e. there will be a municipal offense that has either been charged, or is pending charge, with a one year statute of limitation running.

There has been a hue and cry that – gasp! – the program will be administered by – gasp! – a private company. Well, they always are. I have never seen a diversion program with an educational component that was not farmed out to a private or non-profit outside entity. That is simply how it is done; cities and individual courts are not structured and funded to have classrooms, instructors and curriculum for these matters. And, being as it is a discretionary option to resolve outside of the criminal process (most are contractual, not court compelled) it just does not make fiscal or judicial sense to have it run by the court or state.

As to the content suggested for this particular diversion program offer, it is precisely what you would expect to be offered under the circumstances. Pre-trial diversion at the misdemeanor level almost always involves a perfunctory remedial/instructive class in the subject of the offense. This is the case with defensive driving class to get out of a ticket, it is the case with anger management for assault and domestic violence, it is the case for shoplifting and solicitation programs as well. For the OccupyLA cases, it is hard to imagine a more appropriate subject than a free speech centered Read more →

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A Rancid Foreclosure Fraud Settlement Trial Balloon, Herbert Obamavilles, What Digby Said & The Import of the Occupy Movement

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I do not usually just post simply to repeat what another somewhat similarly situated blogger has said. But late this afternoon/early this evening, I was struck by two things almost simultaneously. Right as I read Gretchen Morgenson’s latest article in the NYT on the latest and most refined parameters of the foreclosure fraud settlement, I also saw a post by Digby. The intersection of the two was crushing, but probably oh so true.

First, the latest Foreclosure Fraud Settlement trial balloon being floated by the “State Attorney Generals”. There have been several such trial balloons floated on this before; all sunk like lead weights. This is absolutely a similar sack of shit; from Morgenson at the NYT:

Cutting to the chase: if you thought this was the deal that would hold banks accountable for filing phony documents in courts, foreclosing without showing they had the legal right to do so and generally running roughshod over anyone who opposed them, you are likely to be disappointed.

This may not qualify as a shock. Accountability has been mostly A.W.O.L. in the aftermath of the 2008 financial crisis. A handful of state attorneys general became so troubled by the direction this deal was taking that they dropped out of the talks. Officials from Delaware, New York, Massachusetts and Nevada feared that the settlement would preclude further investigations, and would wind up being a gift to the banks.

It looks as if they were right to worry. As things stand, the settlement, said to total about $25 billion, would cost banks very little in actual cash — $3.5 billion to $5 billion. A dozen or so financial companies would contribute that money.

The rest — an estimated $20 billion — would consist of credits to banks that agree to reduce a predetermined dollar amount of principal owed on mortgages that they own or service for private investors. How many credits would accrue to a bank is unclear, but the amount would be based on a formula agreed to by the negotiators. A bank that writes down a second lien, for example, would receive a different amount from one that writes down a first lien.

Sure, $5 billion in cash isn’t nada. But government officials have held out this deal as the penalty for years of what they saw as unlawful foreclosure practices. A few billion spread among a dozen or so institutions wouldn’t seem a heavy burden, especially when considering the harm that was done.

The banks contend that they have seen no evidence that they evicted homeowners who were paying their mortgages. Then again, state and federal officials conducted few, if any, in-depth investigations before sitting down to cut a deal.

Shaun Donovan, secretary of Housing and Urban Development, said the settlement, which is still being worked out, would hold banks accountable. “We continue to make progress toward the key goals of the settlement, which are to establish strong protections for homeowners in the way their loans are serviced across every type of loan and to ensure real relief for homeowners, including the most substantial principal writedown that has occurred throughout this crisis.”

Read the full piece, there is much more there.

Yes, this is certainly just a trial balloon, and just the latest one at that. But it is infuriating, because Read more →

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The Name of NYPD Brutality: Anthony Bologna

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[youtube]moD2JnGTToA[/youtube]

The Lieutenant Deputy Inspector who pepper-sprayed a kettled, defenseless woman has been identified as Anthony Bologna. He was IDed, in part, by a lawyer representing one of the people Bologna improperly arrested during the 2004 RNC.

The Guardian has learned that the officer, named by activists as deputy inspector Anthony Bologna, stands accused of false arrest and civil rights violations in a claim brought by a protester involved in the 2004 demonstrations at the Republican national convention.

[snip]

Alan Levine, a civil rights lawyer representing Post A Posr, a protester at the 2004 event, told the Guardian that he filed an action against Bologna and another officer, Tulio Camejo, in 2007. The case, filed at the New York Southern District Court, is expected to be heard next year.

[snip]

The lawyer said Posr was arrested on 31 August 2004, after he approached the driver of a Volkswagen festooned with anti-abortion slogans.

[snip]

Levine said: “Police contend that Posr hit the man with a rolled-up newspaper. He said he was just talking to the guy. Bologna ordered another officer, Camejo, to arrest Posr.”

Posr was charged with two counts of disorderly conduct and one count of second degree harassment, and held until September 2. On November 8, all charges against him were dropped.

Levine said that, in a departure from normal police procedure, his client was held in a special detention facility, at Pier 57, where he and others arrested were held until the protests were over.

It sounds like this guy is using his badge to legally and physically abuse people whose politics he disagrees with–someone politically debating choice in 2004 and a woman opposing MOTU power this weekend.

I don’t expect Ray Kelly to do anything about such an abusive officer on his staff (in any case, the union would presumably defend Bologna if Kelly tried to fire him). But so long as he remains on the force, we have a name and a face to personify the NYPD’s brutality: Anthony Bologna.

Update: Bologna’s rank fixed. One of the women who got partly sprayed by him apparently incorrectly used that rank. h/t Cynthia Kouril.

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The Global Crisis of SOME Institutional Legitimacy

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Felix Salmon has a worthwhile (but, IMO, partly mistaken) post on what he deems “the global crisis of institutional legitimacy.” I think he’s right to see this as a significant challenge to our current political economy.

While watching another Arab government get toppled on Sunday evening — this time that of Muammar Gaddafi, in Libya — I was also reading George Magnus’s excellent note for UBS, entitled “The Convulsions of Political Economy”; you can find it chez Zero Hedge.

Convulsions is right — not only in the Arab world, of course, but also in Europe and the US. And the result is arguably the most uncertain outlook, in terms of the global political economy, since World War II ended and the era of the welfare state began.

As Magnus says:

It seems that we are having sometimes esoteric tiffs between Keynesians and Austrians about if and how governments should sustain jobs and growth. But, deep down, we are having a much more significant debate as we are being forced to redefine what we think about the rights and obligations of citizens and the State.

Most fundamentally, what I’m seeing as I look around the world is a massive decrease of trust in the institutions of government.

But I think Salmon makes two mistakes. First, he maintains an unwarranted distinction between the Arab Spring and the UK riots.

Where those institutions are oppressive and totalitarian, the ability of popular uprisings to bring them down is a joyous and welcome sight. But on the other side of the coin, when I look at rioters in England, I see a huge middle finger being waved at basic norms of lawfulness and civilized society, and an enthusiastic embrace of “going on the rob” as some kind of hugely enjoyable participation sport. The glue holding society together is dissolving, whether it’s made of fear or whether it’s made of enlightened self-interest.

From the perspective of the underclass in our society, it has been some time since “enlightened self-interest” counseled compliance. And from most perspectives, it’s clear that the elites, not the underclass, were the first to wave a huge middle finger at basic norms of lawfulness.

A more problematic error, though, is Salmon’s claim that corporations have retained their legitimacy.

Looked at against this backdrop, the recent volatility in the stock market, not to mention the downgrade of the US from triple-A status, makes perfect sense. Global corporations are actually weirdly absent from the list of institutions in which the public has lost its trust, but the way in which they’ve quietly grown their earnings back above pre-crisis levels has definitely not been ratified by broad-based economic recovery, and therefore feels rather unsustainable.

As a recent Pew poll shows, Americans are just as disgusted with banks and other large corporations as they are with their government.

While anti-government sentiment has its own ideological and partisan basis, the public also expresses discontent with many of the country’s other major institutions. Just 25% say the federal government has a positive effect on the way things are going in the country and about as many (24%) say the same about Congress. Yet the ratings are just as low for the impact of large corporations (25% positive) and banks and other financial institutions (22%). And the marks are only slightly more positive for the national news media (31%) labor unions (32%) and the entertainment industry (33%).

Notably, those who say they are frustrated or angry with the federal government are highly critical of a number of other institutions as well. For example, fewer than one-in-five of those who say they are frustrated (18%) or angry (16%) with the federal government say that banks and other financial institutions have a positive effect on the way things are going in the country.

But there are institutions that Americans still trust: colleges, churches, small businesses, and tech companies.

Distinguishing between those institutions (government and big corporations) people distrust and those (churches, small businesses, and tech companies) they do is important for several reasons. First, because it prevents us from assuming (as big corporations might like us to) that Americans will be content with corporatist solutions. People may or may not like the the post office, but there’s no reason to believe they like FedEx, Comcast, AT&T, or Verizon any more, particularly the latter three, which all score very badly in customer satisfaction. (Update: as joberly points out, Pew found that the postal service was by one measure the most popular government agency, with 83% of respondents saying they had a favorable view of the postal service.)

Such polling also suggests where Americans might turn during this convulsion. Barring Apple buying out the federal government, it seems likely Americans, at least, will turn to local institutions: to their church, their neighborhood, their local businesses.

That’s got some inherent dangers–particularly if people decide they want to change my governance with their church. But it also provides a nugget of possible stability amid the convulsion, one that might have salutary benefits for our environment and economy.

Apple aside, it’s the big institutions that have lost their institutional legitimacy. But we’re not entirely without institutions with which to rebuild.

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The Unstated Constitutional Problems With Obama “Using the 14th”

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As about everyone knows by now, the great debate is still ongoing on the issue of the debt ceiling. The frustration of those on the left with the intransigence of the Republican Tea Party, coupled with the neutered Democratic Congress, has led many to call for President Obama to immediately “invoke the 14th”. The common rallying cry is that legal scholars (usually Jack Balkin is cited), Paul Krugman and various members of Congress have said it is the way to go. But neither Krugman nor the criers in Congress are lawyers, or to the extent they are have no Constitutional background. And Balkin’s discussion is relentlessly misrepresented as to what he really has said. “Using the 14th” is a bad meme and here is why.

The Founders, in creating and nurturing our system of governance by and through the Constitution provided separate and distinct branches of government, the Legislative, Executive and Judicial and, further, provided for intentional, established and delineated checks and balances so that power was balanced and not able to be usurped by any one branch tyrannically against the interest of the citizenry. It is summarized by James Madison in Federalist 51 thusly:

First. In a single republic, all the power surrendered by the people is submitted to the administration of a single government; and the usurpations are guarded against by a division of the government into distinct and separate departments.
….
We see it particularly displayed in all the subordinate distributions of power, where the constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other — that the private interest of every individual may be a sentinel over the public rights. These inventions of prudence cannot be less requisite in the distribution of the supreme powers of the State.

which must be read in conjunction with Madison in Federalist 47:

The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, selfappointed, or elective, may justly be pronounced the very definition of tyranny.

This is the essence of the separation of powers and checks and balances thereon that is the very Read more →

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E. Coli EFMs

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Chris Savage (Eclectablog) continues to track what the Emergency Financial Managers have been doing around Michigan. In new developments, the EFM for Pontiac MI, Michael Stampfler, broke the Police Dispatcher’s union contract, dissolved the Planning Commission, fired the water and wastewater department, and outsourced the latter function to a private company, United Water Services.

Now, Pontiac has had compliance problems with its wastewater treatment since 2009. Which is why Stampfler’s chosen replacement for Pontiac’s wastewater department is troublesome. As Savage points out, United Water was indicted in December for tampering with E Coli testing in Gary, IN.

Because United Water was indicted by the U.S. Department of Justice last December for violating the Clean Water Act.

United Water Services Inc., the former contract operator of the Gary Sanitary District wastewater treatment works in Gary, Ind., and two of its employees, were charged today with conspiracy and felony violations of the Clean Water Act in a 26-count indictment returned by a federal grand jury, the Justice Department announced today.

United Water Services Inc., and employees Dwain L. Bowie, and Gregory A. Ciaccio, have been charged with manipulating daily wastewater sampling methods by turning up disinfectant treatment levels shortly before sampling, then turning them down shortly after sampling.

~SNIP~

According to the indictment, the defendants conspired to tamper with E. coli monitoring methods by turning up levels of disinfectant dosing prior to E. coli sampling. The indictment states that the defendants would avoid taking E. coli samples until disinfectants had reached elevated levels, which in turn were expected to lead to reduced E. coli levels. Immediately after sampling, the indictment alleges, the defendants turned down disinfectant levels, thus reducing the amount of treatment chemicals they used.

That would be a neat way to save money on wastewater treatment, huh? To hire a company allegedly willing to tamper with water quality readings to appear to have fixed water treatment problems.

Of course, the cost of infecting a city with E Coli might end up being a bigger problem.

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DOJ Sits On Its Thumbs A Year After Macondo’s Mouth Of Hell Roared

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It has now been, as noted at FDLNews by David Dayen, one year from the date the British Petroleum wellhead at Macondo blew out, thus killing 11 workers on the TransOcean platform known as “Deepwater Horizon” in the Gulf of Mexico.

Jason Anderson, Aaron Dale Burkeen, Donald Clark, Stephen Curtis, Roy Wyatt Kemp, Karl Kleppinger, Gordon Jones, Blair Manuel, Dewey Revette, Shane Roshto, Adam Weise

These are names you should know. These are the first, and most blatant, victims of the Deepwater Horizon explosion at Macondo. Their actual names do not quickly come to the tongue, nor are they so easy to find. In fact, you know what I had to do to find them? Go through the same process this guy did. And, still, the first link I found them at was his post. Here is a taste of his disgust, and I join it wholeheartedly:

I had to search for those 11 names; most of you may not know them. We didn’t start a war over them, they’re not under any suspicion of anything, not a board of directors of some evil corporate cabal; on the contrary, many would say they are victims of it.

….

But I found them in a story about how frustrated the families are a year later, how frustrated the region is and how all this pep talk about how things are recovering just aren’t true. And there’s plenty of stories about how BP claims to have had its best year ever in terms of safety, yet it caused the worst oil spill in history?? Lots of stories about how the CEO got a million dollar retirement package and bonuses given here and there and it’s enough to make one puke crude, much like a lot of the Gulf remains doing.

First of all, to the families, these people are not “presumed” dead Wikipedia. I know it may be a legal thing, bodies never found, no conclusive evidence, blah blah. They were killed, soldiers in the energy wars killed by friendly fire.

….

…victims of our wanton unbridled lust for oil and the greed of those that produce it. They are dead, gone forever, never to be seen or see their loved ones or live to any more potential; they are gone.

And their deaths appear to have meant little to the world. Nor did the subsequent deaths of everything from thousands of dolphins to countless species of marine life; from the deaths of the livelihoods of so many in the region to the loss of countless ecosystems.

Truer words have likely never been spoken. And that is where I want to pick up.

What could have been done to address these heinous human and ecological wrongs that has not?

Everything.

Because nothing, not diddly squat, has been done. And if the corporate powers that be in this country, and the political puppets who serve them, including Barack Obama, Eric Holder and the currently politicized Department of Justice, have anything to say about it (and they have everything to say about it) nothing significant is going to be done about BP, TransOcean, Halliburton and the Gulf tragedy, or anything related, in the future.

Like the craven and dishonest shell game that has been played by the current administration with regard to torture and destruction of evidence, the US government appears to simply be determined to shine this on with the bare minimum of faux accountability and disingenuous rhetoric to soothe the perturbed masses and maintain status quo with their partners in corporate/political domination of the Read more →

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Solicitor General Email FOIA Shows White House Stunt Fail

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In all the government shutdown, nuclear meltdown and Libya war of choice news dominating the media landscape the last couple of weeks, a completely juicy little tidbit was pried out of the Obama Administration by a right wing news outfit – and almost nobody picked up on it.

CNSNews, the cyber division of the Brent Bozell run right wing Media Research Center, has scored a bit of a coup with the acquisition of a set of FOIA documents from the Solicitor General’s office partially detailing the unusual grooming of Elana Kagan to ascend to the Supreme Court. The 66 pages of documents are fascinating and offer a unique and rare glimpse into the backstage machinations in the SG Office. The FOIA CNSNews issued was targeted almost solely at the great whale the Ahab like conservative right are pursuing, the Affordable Healthcare Act they unaffectionately refer to as “ObamaCare”.

Here is the thing, why would the Administration agree to turn over the emails? They are almost surely protected within the ambit of deliberative privilege exemption commonly recognized for the Executive Branch. Indeed, the first time CNSNews requested the records, the request was flatly rejected, back on June 22, 2010. But, the Administration, on its own, reconsidered, sought slight clarification and, finally, on March 15 of this year, delivered the FOIA records to CNSNews. The response letter from the Solicitor General’s office facially states that they would have been well within their rights to so withhold, but “it would be appropriate to release significant portions of such records requested as a matter of agency discretion”.

Uh huh. Experts in such matters were shocked. Kannon Shanmugam, a veteran of the SG’s office now with Williams & Connolly, stated (subscription may be required):

…the documents represent “an unusual if not unprecedented” look at the office’s operations. “It raises concerns about chilling lawyers in the office in the conduct of their work, and gives an incentive not to put things down in emails.

Indeed that would be seemingly very sound analysis. So, why did the Obama Administration give up the goods? For that, a quick look at what the emails depict, and what the FOIA asked for is necessary. As the FOIA search terms and parameters indicate, CNSNews was looking for instances of Elana Kagan’s Read more →

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Terror Trials, Ray Kelly and the FBI Director Job

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A couple of weeks ago quite a stir was created when the rumor was let leak that President Obama was considering three different high level Bush/Cheney Administration officials to replace FBI Director Robert Mueller, whose ten year term will expire will expire on September 4, 2011. The two names most prominently featured were former Bush Deputy AG James Comey and former Bush National Security AAG Ken Wainstein but also mentioned was former Bush Homeland Security Advisor Fran Townsend. The story creating the hubbub, almost as an afterthought, also mentioned that Sen. Chuck Schumer had been lobbying for current NYPD Commissioner Ray Kelly for the job.

Today, however, comes a news report from local New York investigative reporter Murray Weiss that the FBI Director chair is Ray Kelly’s “for the taking”:

And when sources with solid connections in the White House tell you Kelly has been told by Attorney General Eric Holder that the FBI director’s job is his for the taking, it is impossible to ignore them. All the signals, including the aside from Kelly, are in sync.

Here is the news, according to my sources.

Kelly, who served in two federal posts during the Clinton administration, is this close to heading out of Manhattan and back to Washington to cap his long career of public service by running the FBI.

There are several things interesting about the report. One is Kelly’s age – he is 69 years old. The article addresses that issue:

The FBI Director’s term is 10 years. My sources say the White House has told the 69-year-old Kelly to view the position as a five year commitment, which would coincide nicely with the end of a second Obama term.

If so, and Kelly is indeed nominated, this is a contemptible plan. The intent behind having a ten year service period for the FBI top spot is to give it some space from hard partisan politics. In this case, seeing as how rare it is that a party who has had the presidency for two terms gets it for a third, setting up the FBI job to be open in the face of what would historically be and expected GOP president in 2016 seems short-sighted and extremely ill considered. I guess that presupposes Obama is reelected, but you have to assume the White House believes that will be the case and is acting under Read more →

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