The Reid/Durbin Fabrication On Burris

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burris1thumbnail.thumbnail.jpgBy now you know how poorly Harry Reid and Dick Durbin have played their aces and eights hand on the Roland Burris appointment to Barack Obama’s former Senate seat. Reid and Durbin went all in with their chips on the Illinois Secretary of State and, predictably, lost their pleated dandy shirts.

Illinois law and the Constitution have always been contra to Reid and Durbin’s intransigence on Burris, but the disingenuous duo have always fallen back on their precious ancient Senate Rule II. They have steadfastly portrayed themselves as honorable protectors of the high ground of ethics, and citizens and the rubes in the media have bought off on it. To wit, Durbin grandly proclaimed late Friday:

…the Senate seat could remain vacant until Blagojevich is removed from office and the lieutenant governor takes over, making a fresh appointment.

He said the Senate cannot waive a 125-year-old rule requiring the signatures of both the governor and the secretary of state on any election or appointment.

Now, it is hard to tell whether these lustrous paragons of virtue are being intentionally dishonest, or are simply tragically ignorant of the questionable foundation of the argument they rely on. But it is one or the other. First off, as Jane pointed out Friday,

the 1884 Senate rule Durbin and Reid rely on was promulgated before the passage of the 17th Amendment as well as before the Supreme Court decision in Powell v McCormack. Reid and Durbin are duplicitous in thinking their antiquated Senate rule trumps the official selection pursuant to the 17th Amendment and Illinois statutory law.

So, there is that. But, guess what? After all this, it turns out the vaunted Senate Rule II isn’t even the bright line mandate they have been stating. In fact, Senate Rule II is simply an antiquated suggestion for a document template. While subparagraph 2 of Rule II mandates that the Secretary of the Senate keep a journal of all certificates signed by the governor and secretary of state of the appointing electing and/or appointing state for each Senator, the operative language on the form of the certificate is, contrary to what Reid and Durbin have been stating, not mandatory in the least. From the official Senate Rules:

3. The Secretary of the Senate shall send copies of the following recommended forms to the governor and secretary of state of each State wherein an election is about to take place or Read more →

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Eric Holder's New Pardon Controversy: Oops He Did It Again

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graphic by twolf

graphic by twolf

Hot off the presses, Tom Hamburger and Josh Meyer at the LA Times have an exclusive on new information detailing Obama Attorney General nominee Eric Holder’s involvement in the ugly and controversial clemency grants given to members of the violent Puerto Rican terrorist groups FALN and Los Macheteros.

"I remember this well, because it was such a big deal to consider clemency for a group of people convicted of such heinous crimes," said Adams, the agency’s top pardon lawyer from 1997 until 2008. He said he told Holder of his "strong opposition to any clemency in several internal memos and a draft report recommending denial" and in at least one face-to-face meeting. But each time Holder wasn’t satisfied, Adams said.

The 16 members of the FALN (the Spanish acronym for Armed Forces of National Liberation) and Los Macheteros had been convicted in Chicago and Hartford variously of bank robbery, possession of explosives and participating in a seditious conspiracy. Overall, the two groups had been linked by the FBI to more than 130 bombings, several armed robberies, six slayings and hundreds of injuries.

The entire Justice Department was vehemently against Holder’s inexplicable determination to force the clemencies against all reason and factual considerations. One has to wonder exactly what was motivating Holder’s shameful refusal to back up his prosecutors and case agents (probably one of the reasons Holder has never been a favorite of line level DOJ personnel).

Holder stiffed prosecutors, FBI case agents and victims:

* He reminded Holder that Holder had in previous cases given "considerable weight" to the recommendations of federal prosecutors, and that any clemencies would "contravene the strong negative recommendation of two United States attorneys."

* Adams also warned that the convicts’ release would undermine at least four pending Read more →

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The Constitution and Roland Burris

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Breaking News – OUR LONG NATIONAL NIGHTMARE IS OVER:
USA Today relates that Harry Reid and the Senate Democrats have, predictably, caved:

Senate Democrats will allow Roland Burris to take the seat vacated by President-elect Barack Obama, the Associated Press reports.

this has been an Emptywheel Breaking News Update. Now back to your previously scheduled programming, er post, which describes exactly why Reid, Obama and the Senate Dems have engaged in one of the worst opening acts for an incoming US Congress ever. Fools on the Hill they are.
____________________________________________________________________________________

Roland Burris went to the hill in Washington DC Tuesday to claim the Senate seat he has been appointed to; but, as Jane Hamsher reports:

The Secretary of the Senate turned Burris away.

Chris Cilizza is on my teevee saying "everything in the Senate is like high school."

No kidding. The optics of this are just awful.

Harry Reid and Senate Democrats, not to mention Barack Obama, have indeed ginned up an extremely ugly mess with their anti-Burris, at all cost, stance; but, as I have been pointing out from the start (see here and here), their little passion play is also unconstitutional. Preeminent Constitutional scholars Bruce Fein and Erwin Chemerinsky agree.

Many people have argued that the Constitution, specifically Article I Section 5, gives Reid, Obama and the Senate Dems the leeway they need to exclude Burris. Not so fast says Fein:

In Powell v. McCormack (1969), the United States Supreme Court held that under Article 1, section 5, "in judging the qualifications of its members, Congress is limited to the standing qualifications [age, citizenship and residency] prescribed in the Constitution." The court made no distinction between representatives and senators, or between elected or appointed members of Congress. Speaking for the court, Chief Justice Earl Warren (whom President-elect Barack Obama admires) amplified that James Madison, father of the Constitution, and Alexander Hamilton in the Federalist Papers, were emphatic that Congress could not erect qualifications beyond the constitutional floor. Madison argued at the Constitutional Convention that it would be "an improper and dangerous power in the Legislature. The qualifications of electors and elected were fundamental articles in a Republican Gov’t and ought to be fixed by the Constitution. If the Legislature could regulate those of either, it can by degrees subvert the Constitution." Hamilton echoed: "The qualifications of the persons who may choose or be chosen … are defined and fixed in the Constitution, and are unalterable by the legislature."

I know nothing of Roland Burris, in fact had never heard of him prior to this affair. I wish the vacancy of Illinois’ junior Senate seat could have been resolved much more cleanly, but Fein, and the authorities he cites, are dead on correct.

Oh, and Bruce has a bit to say about Harry Reid’s charade Tuesday morning wherein he had the Secretary of the Senate deny Burris’ credentials:

Democrats plan to exclude Mr. Burris by enforcing a rule requiring that credentials presented by Read more →

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Reid On Tape Manipulating Illinois Senate Seat Before Blago's Arrest

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h/t MCCS1977

h/t MCCS1977

Thursday I described The Ugly Legal Optics Of Harry Reid’s Burris Battle. There is a new cloud dimming the already ugly optics. An article that just hit the website of the Chicago Sun Times reports Harry Reid already had his heavy ham fisted hand deep in Illinois state politics well before Blagojevich was arrested:

Days before Gov. Blagojevich was charged with trying to sell President-elect Barack Obama’s U.S. Senate seat to the highest bidder, top Senate Democrat Harry Reid made it clear who he didn’t want in the post: Jesse Jackson, Jr., Danny Davis or Emil Jones.

Rather, Reid called Blagojevich to argue he appoint either state Veterans Affairs chief Tammy Duckworth or Illinois Attorney General Lisa Madigan, sources told the Chicago Sun-Times.

Sources say the Senate majority leader pushed against Jackson and Davis — both democratic congressmen from Illinois — and against Jones — the Illinois Senate president who is the political godfather of President-elect Barack Obama — because he did not believe the three men were electable. He feared losing the seat to a Republican in a future election.

This is certainly a stunningly rich development from about every perspective imaginable. Harry Reid has threatened to use the Capitol Police to forcefully haul Roland Burris off the Senate floor should he try to enter because he feels Burris is tainted by Blagojevich’s shady machinations of the open Senate seat. Only it turns out that Reid is the one smack in the middle of Blago’s machinations, not Burris. And it would appear he is on Pat Fitzgerald’s wiretaps doing so.

Blagojevich spokesman Lucio Guerrero confirmed that Reid (D-Nev.) and U.S. Sen. Robert Menendez (D-N.J.) — the new chief of the Senate Democratic political operation — each called Blagojevich’s campaign office separately Dec. 3. Sources believe that at least portions of the phone conversations are on tape.

Before their contacts, Obama’s chief of staff Rahm Emanuel called Blagojevich to tell him to expect to hear from Senate leadership because they were pushing against Jackson and others, according to statements the governor made to others.

The Reid-Menendez calls came a day before a Dec. 4 conversation overheard on government wiretaps where Blagojevich says he “was getting ‘a lot of pressure’ not to appoint Candidate 5.” Candidate 5 is Jackson.

Did I mention that this is a nightmare from every available tangent? Not only is Harry Reid on tape with his finger stuck in the Illinois state pie, we now have Rahm Emanuel, the President-Elect’s Chief of Staff, running flak for Reid’s heavy handed interposition. Now it is certainly understandable that Emanuel and his boss, Obama, would have interest in Obama’s former Senate seat; but, again, the appearance here is unseemly at best.

That said, the main story for the moment is Harry Reid and the Senate leadership. There is no basis for believing Harry Reid is a racist, or that his actions here are particularly racially motivated, but it is no longer possible to dismiss the overtones that the picture must be starting to paint for some African American citizens in Illinois. Reid has been steadfastly determined to block the appointment of three black elected politicians – Emil Jones, Danny Davis and Jesse Jackson, Jr. because they are supposedly "not electable"; in favor of a white woman, Tammy Duckworth who has, you know, been previously found unelectable by the voters of Illinois. Or another white woman, Lisa Madigan, who managed to get elected mostly on the coattails of her powerful Chicago machine daddy. Lovely; what a picture that paints.

Oh, and now that nice gentlemanly 71 year old Roland Burris, another black man, who has previously been elected to statewide office in Illinois, can’t be permitted in the hallowed Senate doors either. George Wallace must be laughing his butt off at Reid’s bad optics and unseemly folly. And this is all occurring over the seat of the only black man in the lilly white United States Senate that was just vacated by the groundbreaking President-Elect Barack Obama. Malignant idiocy abounds.

Harry Reid will be the featured guest on Meet the Press Sunday morning. Jane Hamsher has already raised the curious difference between how Reid Read more →

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Bush DOJ Is Now Filene's Basement for Corporate Crooks

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The fire sale by the Bush Administration in a last gasp to coddle corporate polluters, crooks and malefactors (i.e. friends and family) is on at the Department of Justice. From Carrie Johnson at the Washington Post:

The Justice Department has reached more than a dozen business-related settlements since the presidential election, with more in the pipeline for January, prompting lawyers and interest groups to assert that companies are seeking more favorable terms before the new administration arrives.
…
A review of 15 agreements involving corporations since early November suggests that much of the alleged misconduct dates back five years or more, provoking questions about why the cases took so long to mature and why resolutions are coming with only weeks left in President Bush’s term.

Johnson’s article discusses, among several, the case of United States v. Siemens. This case sticks out like a sore thumb. There are actually four different cases consolidated against Siemens – against their home company in Germany, and against each of their subsidiaries in Bangladesh, Venezuela and Argentina. How deep, pervasive and criminal was the conduct of Siemens in their worldwide bid to defraud the US Government and others? Glad you asked; it was so bad that:

The company hired a law firm and accounting experts to probe its problems, ultimately paying more than $776 million to advisers who reviewed millions of documents and interviewed 1,750 employees…

So what basement bargain settlement did Siemens get?

"Under the terms of the plea agreement announced today, first, Siemens AG will plead guilty and has pled guilty to one count of failure to maintain internal controls and a one-count books and records violation. In addition, three Siemens subsidiaries, those located in Bangladesh, Venezuela and Argentina, have pled guilty to conspiring to violate provisions of the FCPA.

"Second, Siemens will pay a criminal fine to the United States in the amount of $450 million.

Here is the kicker: Siemens retains full rights to keep on contracting with the US Government and its agencies; no debarment, which should be a given for fraud of this scale. The Bushies are always ready willing and able to let big corporate criminal right back in the door to rape, pillage and plunder again.

The Bush Basement Sale is on for another eighteen days, step right up and get yer bargains!

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The Ugly Legal Optics Of Harry Reid's Burris Battle

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h/t MCCS1977

h/t MCCS1977

Earlier this morning, Jane wrote a fantastic post, "Burris and Blago: What Happens Now?", that lays out most all of the concerns with the obstreperous position taken by Harry Reid and the Democratic leadership. I would like to follow up on a couple of legal points inherent in the discussion.

Illinois Secretary of State Jesse White: As you have probably heard, Illinois Secretary of State Jesse White has refused to certify Blagojevich’s appointment of Roland Burris. The problem I see with this is that there is no legal basis whatsoever for SoS White’s conduct in this regard.

White appears to be abrogating Illinois law all by himself, and he simply does not have the power to do that. Signing the certification is a ministerial act, not an established right of veto. The decision on who to appoint is the governor’s and the governor’s alone under Illinois law; there is no power promulgated for the SoS to have decision making authority. If White can simply refuse to sign the certification, and that stops the process in it’s tracks, he would have unmitigated veto power over the appointment. He does not.

Burris has obviously figured this out and has brought action demanding the Secretary of State endorse the certification.

Burris’s lawyers argued that White’s duties are strictly ministerial and that he doesn’t have the discretion to withhold his certification of Blagojevich’s selection.

“Any additional state requirement that Roland Burris must seek or obtain approval of the secretary of state to qualify as U.S. senator would be unconstitutional,” Wright said in the filing.

Whether you like Burris or not, whether you despise Blagojevich or not, Burris has now been duly appointed by a sitting governor; his appointment, absent evidence to the contrary, is valid on its face. White should sign the certification forthwith, refusal to do so is outside of his authority and is costing the citizens of Illinois valuable court time, resources and money; effectively a breach of White’s fiduciary duty to the state.

Harry Reid has lobbied against Illinois having a special election to fill Obama’s Senate seat, which they could easily hold concurrent with the election they will be forced by law to have for Rahm Emanuel’s open seat in Illinois’ 5th district. Reid is likely personally responsible for there being no opportunity for the public to vote on the next Read more →

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Fitzgerald Makes His Move for More Time; Blago Agrees!

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images5.thumbnail.jpegJust a few hours ago Marcy hypothesized on Illinois Governor Rod Blagojevich’s next move. Well, he has made the move. In a pleading just filed and encaptioned: GOVERNMENT’S UNOPPOSED FIRST MOTION FOR AN EXTENSION OF TIME TO RETURN INDICTMENT PURSUANT TO 18 U.S.C. § 3161(h), Fitgerald relates:

The UNITED STATES OF AMERICA, by its attorney, PATRICK J. FITZGERALD, United States Attorney for the Northern District of Illinois, respectfully moves this Court, pursuant to 18 U.S.C. § 3161(h)(8), for a 90-day extension of time, to and including April 7, 2009, in which to seek the return of an indictment against the defendant…

As Marcy thought, the real meat of the motion is sealed, but the operative language that is public is as follows:

A number of factors have led to the government’s request for an extension and the length of the extension being sought. One factor that affects the length of the requested extension is that federal holidays have limited the dates and times that the government will be able to present evidence to the Grand Jury. The federal grand juries are not sitting during the week of December 22nd (Christmas week) or the week of December 29th (New Years Day week). The remaining factors that have led to the government’s request for an extension are stated in the Attachment hereto, which the government respectfully requests be placed under seal. The government is requesting that this Attachment be sealed so as not to compromise its ongoing investigation and so as not to reveal matters occurring before the Grand Jury.

But the Key language that I think any lawyer would find fascinating here is at the very end of the document:

Following telephone calls and/or meetings over the past week, counsel for both Blagojevich and Harris have represented that they do not object to this motion. (emphasis added)

As Marcy noted, this is in the face of the Senate Democrats trying to make the legally touchy case that they can avoid seating Burris and adds to the pressure on the legislative impeachment committee.

So why did Fitzgerald do it? Easy, he needs more time to get all the evidence, especially the most recently acquired material (which is still coming in on the Senate seat portion of the case) organized to his meticulous satisfaction.

The much better question is why the defendants both agreed to the delay with no opposition Read more →

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Turnabout Would Be Fair Play: US Seeks 147 Year Torture Sentence

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This report from MSNBC is almost sublimely ironic:

U.S. prosecutors want a Miami judge to sentence the son of former Liberian President Charles Taylor to 147 years in prison for torturing people when he was chief of a brutal paramilitary unit during his father’s reign.
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A recent Justice Department court filing describes torture — which the U.S. has been accused of in the war on terror — as a "flagrant and pernicious abuse of power and authority" that warrants severe punishment of Taylor.

"It undermines respect for and trust in authority, government and a rule of law," wrote Assistant U.S. Attorney Caroline Heck Miller in last week’s filing. "The gravity of the offense of torture is beyond dispute."
…
Elise Keppler, senior counsel at Human Rights Watch, said Monday that the organization has long pressed for investigations and prosecution of those responsible for torture around the world. The Emmanuel conviction is a big step forward, she said.

"This whole process has sent a message that when it comes to the most serious crimes, there cannot be impunity," Keppler said. "Without a penalty that fits the gravity of the crime, it risks sending a message that these crimes will be tolerated."

Huh. Go figure. I wonder who will prosecute the the denizens of the Bush Administration for the same acts?

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Did McCain/Palin Obstruct Justice in the Johnston Case?

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h/t mark fairbanks alaska flickr/dkos

h/t mark fairbanks alaska flickr/dkos

It seems that Sarah Palin has a newsworthy scandalette for every holiday. For Thanksgiving she was preening in front of a turkey slaughter; for Christmas, she is smack dab in the middle of a felony controlled substances investigation. The New York Times reports on the investigation of Sherry Johnston, the mother of Bristol Palin’s supposed fiance:

Johnston is the mother of 18-year-old Levi Johnston. Gov. Sarah Palin announced in September that her 18-year-old daughter Bristol was pregnant and Johnston was the father.

Authorities say the case began in the second week of September — a couple of weeks into Palin’s campaign as Republican vice presidential candidate — when drug investigators intercepted a package containing 179 Oxycontin pills. That led to the arrest of the suspects, who agreed to be informants.

According to the affidavit, Johnston sent a text message to one informant Oct. 1, writing: ”Hey, my phones are tapped and reporters and god knows who else is always following me and the family so no privacy. I will let u no when I can go for cof.”

Ten days after Johnston said there wasn’t enough privacy for a drug sale, she texted again to set up a meeting at a store, according to the affidavit. The document says the informant received $800 to make a purchase, meeting investigators later with 10 pills of 80-milligram Oxycontin.

A second purchase was made the following day, authorities said. This time the informant wore a hidden camera and a microphone.

Interesting. This little sting was percolating the entire post convention portion of the election. Sounds like they had Johnston cold from the first controlled sale, which if the article is correct, appears to have been made on October 11, and certainly by the following day when they made the second controlled transaction. A skeptic might think that it was ripe for arrest during the election, like say anytime after October 12; and might wonder why it was extended into late December for arrest.

Well, gee whiz, lookee here! From the Washington Post:

The trooper’s affidavit indicates that Sarah Palin’s candidacy factored into the investigation, with state officials delaying execution of a search warrant until this month, when Johnston was "no longer under the protection or surveillance of the Secret Service."

Who could have ever predicted this? I wonder what role John McCain and Sarah Palin played in this admitted political delay? What role did the Read more →

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FBI Whistleblower Plugs Toobz Stevens Prosecution

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graphic by twolf

I have stated before that the case against Ted Stevens should have been dismissed for prosecutorial misconduct before it ever reached the contaminated and bizarre jury process that led to the guilty verdict.

Late today we received yet more evidence of just how true that is. From the Anchorage Daily News:

A five-year FBI agent assigned to the Alaska corruption investigation is the whistleblower who brought a complaint of misconduct against other agents and at least one prosecutor involved in the trial of U.S. Sen. Ted Stevens.
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But the whistleblower’s explosive allegations about misconduct by other members of the FBI and the prosecution suggest intimate, firsthand knowledge of the full investigation from the start, and of the activities surrounding Stevens’ trial.

"I have witnessed or learned of serious violations of policy, rules and procedures as well as possible criminal violations," the whistleblower asserted in his complaint to the Justice Department’s Office of Professional Responsibility.

The whistleblower said agents got too close to sources, took gifts and favors from sources, and revealed confidential grand jury and investigation information to sources and reporters.

The whistleblower also said members of the prosecution team intentionally withheld information from Stevens’ defense that was required by law to be turned over. In addition, the prosecution deliberately failed to alert the defense that it was sending a key witness back to Alaska without testifying even though that witness was under a defense subpoena.

Prosecutors and agents also failed to properly log and track evidence, the whistleblower said.

Two filings came out today: The decision and order by Judge Emmet Sullivan releasing the document, and the actual whistleblower’s complaint.

This case was already so full of erratic and malicious misconduct that it was almost certain to be reversed on appeal. See this earlier post I did and this post by Christy Hardin Smith.

Stevens’ attorney, Brendan Sullivan, has already lodged a motion to dismiss the charges or, alternatively, gain a new trial. Stevens has not been sentenced yet, so this is still in the trial court, not the appellate level.

The real issue is going to revolve around Federal Rules of Criminal Procedure Rule 16(a)(1)(E), which requires that the government must disclose evidence upon defense request where:

(i) the item is material to preparing the defense;

(ii) the government intends to use the item in its case-in-chief at trial; or

(iii) the item was obtained from or belongs to the defendant.

Further, there is a continuing duty to disclose (Rule 16(c)), with penalties enumerated Read more →

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