2007: The Year of Living Dangerously

In the legal world, this grim year ends as it began: With grave revelations about misconduct by executive branch officials. From the U.S. attorney scandal that sprouted in January to the CIA's illegal destruction of evidence disclosed this month, the year was dominated by stories highlighting the extent to which our government -- in our name if not entirely with our consent -- has deliberately and relentlessly undercut the rule of law and the separation of powers.

The damage done this year -- or at least made known to us this year -- will last long past the tenure of the Bush administration officials responsible for it. Indeed, many of the worst culprits already are gone from public life.

Don't let the door hit you on the way out Alberto Gonzales, Harriet Miers, Charles "Cully" Stimson, Monica Goodling, I. Lewis "Scooter" Libby, Karl Rove, Michael Battle, Bradley Schlozman, William Mercer, Kyle Sampson, Paul McNulty and Michael Elston.

What did these government officials (and others still at their posts) do in 2007? Or, more precisely, what did we discover in 2007 that they had done in years past? In short, they used reckless means (such as firing professional attorneys at the Justice Department and misleading federal judges) to justify dubious ends (including unfettered presidential power and draconian anti-terror rules).

Let's start at the beginning, with the U.S. attorney scandal. The White House fired eight competent and aggressive federal prosecutors for not being "loyal Bushies." This was important because the Justice Department --with its cadre of seasoned nonpartisan attorneys -- was one of the last remaining bulwarks against a "unified executive theory" (the idea that all executive branch power ought to reside with the president). And a Justice Department with fewer independent minds might better support, or at least tolerate, wider implementation of that theory (to the detriment of the other two branches and the rest of us).

If Attorney General Gonzales didn't trigger the U.S. attorney purge, he certainly facilitated it. And then, to help protect his boss at the White House, he sacrificed whatever was left of his own reputation, allowing himself to be ridiculed and laughed at by the Senate Judiciary Committee. The man in the post once held by legends Archibald Cox and Eliot Richardson became, quite literally, a joke. And the Justice Department's morale, integrity and reputation went down with him.

Gonzales was far from the only administration official to defy Congress. When the U.S. attorney scandal broke, the White House offered only to make Rove and Miers available to chat informally with legislative attorneys -- with no sworn testimony or even the ability for the questioners to take notes about their conversations with two people at the heart of the scandal. Sue us, the White House said to the Congress, we'll take our chances with executive privilege through a court fight that lasts for years. Just this month, the same feds told the courts not even to inquire about the CIA's destruction of those damning videotapes.

In court, meanwhile, legions of federal attorneys oversold their cases to legions of federal judges. Even before we learned that the CIA had destroyed interrogation videotapes (material to Zacarias Moussaoui's capital case), federal prosecutors in October had to apologize to Moussaoui's judge -- 18 months after the trial -- for allegedly not knowing about the existence of such evidence. At Guantanamo Bay, it took the surprise filing of a damning affidavit by a courageous military lawyer just to convince the Supreme Court to take another look at the rights to which the detainees are entitled.

Probably the best example of the administration officials' win-at-all costs strategy against so-called "enemies" came via the coercive work of Charles "Cully" Stimson, former deputy assistant secretary of defense for detainee affairs, who despicably tried to convince major corporate clients to fire the private attorneys and law firms that were providing pro bono work to the Guantanamo detainees. Never mind that the provision of legal assistance to those who need it most is one of the more noble callings of the legal profession. Never mind that the legal community rose up as one to defend those brave volunteers. Like the hockey player who leaves the ice after delivering a cheap shot, Stimson quickly left the arena. The damage already had been done.

If these stunts, misdirections and outright lies (and potential crimes) were self-contained, if they already had spawned their greatest destruction upon the justice system, it would be bad enough. But they weren't and they haven't. The consequences of this annus horribilis will continue long after the rest of the Bush administration is retired to the pasture of the private sector (or to the corridors of federal penitentiaries). When you plant a bad seed, expect a poisonous tree.

Federal judges, realizing with more clarity each day that things are rarely what they seem to be in terror law cases, will become even more skeptical of the claims of federal lawyers and intelligence officials when they stand before the court and declare that the judiciary must defer to the other branches in determining the legal contours of the war on terror. Bright young professional attorneys -- those who have the integrity to reach beyond their political leanings -- will think twice about joining a Justice Department still tainted by partisanship. Secret memos and rules and policies will be hard to undo. And, perhaps most important, public confidence in the way the branches of government work together toward a fair and impartial legal system may be irretrievably lost.

The best that can be said of 2007, therefore, is that it is over, and that never before have the executive branch's legal strategies and motives been more scrutinized by so many people at once. It has taken six years, and untold damage to the nation's legal infrastructure, but the chickens may finally be coming home to roost. Too late for many. Just in time for most.

By Andrew Cohen |  December 29, 2007; 1:00 AM ET
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"The consequences of this annus horribilis will continue long after the rest of the Bush administration is retired to the pasture of the private sector (or to the corridors of federal penitentiaries). When you plant a bad seed, expect a poisonous tree"

Since abuse of power moves downwards in a system, here are some statistics that I suspect point to one of those poisonous trees

(Although some differing reasons are offered in explanation):
http://www.usatoday.com/news/nation/2007-12-17-Copmisconduct_N.htm

Posted by: generaljinjur | December 29, 2007 04:12 AM

The best thing as you said is that 2007 is over. We all have an election to look forward to.

My worry is that some abuses of this and recent past years will be considered precedents for future similar attempts to ignore the Constitution.

Posted by: DC | December 29, 2007 04:38 PM

"Legions" of federal attorneys "oversold" their cases? I don't know, Andrew -- I think you are the one overselling a bit there. I think some (but not all) of the criticism you have lobbed this year at certain high-profile terror cases has been fair. But I wouldn't overlook the diligent efforts that line assistants put forth on a daily basis, often at risk of damage to their careers and reputations as prosecutorial misconduct has become an increasingly popular grenade to throw at trial and on appeal and habeas review.

I just don't agree that the overreaching that has gone on at DOJ has been done by "legions" of people. Activity at the U.S. Attorneys' offices has largely been sound.

The impact of the U.S. Attorney firing scandal has yet to be seen; most career people and most applicants are smart enough to understand that this Administration is almost done and DOJ is in more competent hands now even under this Administration. So I think you're overselling that one a bit also. If you ask the executive assistants at the top offices around the country, they will tell you that their applicant pools are still very strong, and the wait time for entry interviews is still pretty long. I can tell you that I think the Bush Administration's failure and inability to devote more resources to ground-level federal prosecutors has resulted in a shift away from hiring higher-priced attorneys with five to ten years of experience, and applicants fresh out of clerkships or only a year or two into private practice have a much better shot at becoming an AUSA now than they have in a very long time. The big offices are under pressure to get results with smaller and smaller budgets.

Posted by: ExAUSA | December 29, 2007 04:51 PM

From Proverbs in the KJV...
23:23 Buy the truth, and sell it not; also wisdom, and instruction,
and understanding.

Posted by: hillhopper | December 30, 2007 04:17 AM

My question is, Ok, If truth, wisdom, and instruction ought to be bought and not sold, then define the transaction in terms of a sales contract according to law. In other words, who has the truth that is not for sale but can be bought? Is this like a riddle from the Middle Ages? No multiple choice, no true false, and you have the rest of your life to come up with the answer. (even while learning something useful.)

Posted by: hillhopper | December 30, 2007 04:25 AM

Sinclair Lewis said it best: "When fascism comes to America, it will be wrapped in the flag and carrying the cross."

Posted by: miami | December 30, 2007 08:03 AM

So...what do I tell my kids about all this?

Perhaps: "Kids, if you're going to be criminals, do so in the federal government. That way, not only will you NOT be prosecuted, you'll be called a patriot and go on to lucrative private sector jobs."

I truly can't believe how distrustful I've become of our government. No wonder the government says hardly a word against Putin. He could righteously point a finger right back.

Posted by: Kevin | December 31, 2007 10:57 AM

Ex AUSA writes:

"as prosecutorial misconduct has become an increasingly popular grenade to throw at trial and on appeal and habeas review."

You ARE kidding, right, exAUSA? I have seen absolutely NO EVIDENCE OF THAT WHATSOEVER, IN FACT QUITE THE CONTRARY! Increasingly popular? That is THE MOST ASININE statement I have heard in a long time-you see, there IS virtually no federal oversight of AUSAs, that's precisely the problem! AUSAs are allowed by their overly politicied US Attorneys to run amok in the federal courts, and precisely because they ARE prosecutors, they get away with murder, literally! And no one says a word to them-you know why? because they ARE prosecutors, so it becomes a vicious cycle; you have prosecutors who are lying to federal judges, misleading juries and no one, particularly other lawyers, wants to say anything for fear of reprisal-and the reprisal aspect by federal prosecutors and the Department is very real, make no mistake about it.

ExAUSA, let me break it down for you: Federal prosecutors ARE PUBLIC SERVANTS-THEY ARE SUPPOSED TO SERVE THE PUBLIC, NOT THEMSELVES AND THEIR PERSONAL AGENDA. That's really one of the major problems with the presently constituted Justice Department you see, THEY HAVE FORGOTTEN AND HAVE COME TO TOTALLY DISREGARD THE PUBLIC THEY ARE SUPPOSED TO SERVE. They are not supposed to bully, lie and mislead the judges and juries in the cases they are assigned, no matter how emotionally invested in a case they may be, no matter how badly they want to win in order to further their career interests.

When that happens, (and in this utterly corrupt and overly politicized Department of Justice, that has happened with sorrowful frequency)the rule of law becomes subverted. Period, end of story. And when the rule of law becomes subverted, because the institutionalized arrogance of the Department of Justice is too great to take account of itself, then obviously, our whole system of law suffers-and that has, in fact, been the case for the past several years now. We will hope for a new day in 2008-which should be the year that Justice Department lawyers start adhering to their ethical responsibilities to the courts and the people they serve, rather than serving their personal agendas, political and otherwise.

Posted by: | December 31, 2007 11:12 AM

Strangely enough, you toss away in an aside the worst aspects of the sabotaging of the rule of law--(1) the President's wholesale adoption of "signing statements," under which he claims the right to ignore any law he signs; (2) the implicit acceptance of Richard Nixon's maxim that if the President does it, it's legal.

Even the Nazis were less unrestrained: a few years before they dismissed Jews (and Communists, and homsexuals, and Gypsies) from jobs, confiscated their property and shipped them off to death camps, the Germans rewrote their laws. Nice to think the Third Reich was legally more scrupulous than the Bush Administration.

Posted by: Paulo Di Lauro | December 31, 2007 05:40 PM

To anonymous, or Chia pet, or whoever you are:

First of all, you can stop shouting.

Second of all, your rant was not at all consistent with my firsthand experience as a federal prosecutor and defense attorney, so I reject it entirely. And yes, manufacturing baseless misconduct claims is very much in vogue, as asinine as you may think that is.

Third of all, back on your meds please.

Have a nice day.

Posted by: ExAUSA | December 31, 2007 11:38 PM

ExAUSA seems a mite defensive--anything that doesn't fit with his first-hand experience, he rejects entirely, a peculiar posture for a lawyer.

And "baseless misconduct claims" are very much in vogue, he pronounces, neglecting of course to offer any evidence for so sweeping a statement.

And, then, just in case we didn't grasp the power and nuance of his argument, ExAUSA delivers his awesome closing: he tells his antagonist to go back on his meds.

To an outsider, his post is typical of a member (present or former) of the Bush DOJ:

Ignorant, incompetent, bullying and repellent. Whatever hatched him should have been drowned in pregnancy.

Posted by: Mettanozze | January 1, 2008 08:44 AM

Thank you, Andrew, for bringing the Best of WaPo Critical Faculty to the Public. It's too bad folks like you and Froomkin don't have a more visable burth at the Post...instead we get folks like Novak, "Dick"Cohen (hopefully no relation), George Will, Mike Gerson, and Ramesh Punura. Who the heII is calling the shots at WaPo...is it that Katherine Grahams son just doesn't understand what true journalism with all it's potential, is capable of... that is serving the People in their effort to discern "the Truth" of any number of situations....instead I have to read Richard Cohens petty smear of Obama, when any fairminded American can recognize that there are way too many young Black Men in Jail in this Country and way too few graduating College....I'm rambling, sorry.

Just know that I can read the difference between your's and Froomkin's Journalistic standard...and the creepier side as represented by Novak, Will, Punura

Thanks

Posted by: Dr.d'Evidence | January 1, 2008 11:03 AM

Not really, just stating fact. The meds thing I agree was over the top. Maybe when I have a moment to conduct the statistical study you request, I'll post it. And I should have been more specific about what I was rejecting entirely:

"you have prosecutors who are lying to federal judges, misleading juries and no one, particularly other lawyers, wants to say anything for fear of reprisal-and the reprisal aspect by federal prosecutors and the Department is very real, make no mistake about it."

"[Federal prosecutors] HAVE FORGOTTEN [their duties as public servants] AND HAVE COME TO TOTALLY DISREGARD THE PUBLIC THEY ARE SUPPOSED TO SERVE."

Sweeping statements indeed. I don't think they're defensible. That's not saying that misconduct never occurs, or that all is perfect, or that some offices and some prosecutors do not display pervasive problems. But on balance the above sweeping statements are wrong and it's not bullying anyone to say so.


Posted by: ExAUSA | January 1, 2008 11:19 AM

Really, ex-AUSA? Those "sweeping statements" are wrong? Is that in fact the case? Or is it that you just don't realize the breath and extent of the prosecutorial misconduct that goes on in the federal courts? Perhaps you think what you think, because you're an exAUSA, and it is PRECISELY that institutionalized arrogance, exhibited daily by DOJ lawyers, that leads to the subversion of the rule of law in the courtrooms across this country. WE CAN DO NO WRONG, WE ARE ON THE SIDE OF THE ANGELS.

But it's a little more complicated than that. When you have overly politicized US Attorneys who want their prosecutors to win cases, particularly so-called "terror" cases, in order to make THEM look good, and for THEIR career advancement, that win-at-all-costs mentality means that ethical and judgmental lapses on the part of the prosecutors have been occuring at an alarming frequency -we're just finding out about this, really, within the last year, the thugging, the politicizing of positions, the race to win the "terror" cases, all of that has been happening at DOJ, over the past several years, really, but is just now starting to be examined.

I mean, there must be SOME reason that DOJ's Office of Professional Responsibility (OPR) is SO busy these days investigating prosecutorial misconduct, huh? Because they very much are-you just don't normally hear about it, because the investigations generally take place outside the public domain, but they ARE busy, very very busy. And that is not a good thing, at all.

Posted by: | January 1, 2008 01:55 PM

why are there never any polemics from Cohen examing the flip side of the coin?

- politically motivated defnse lawyers also out to feather career beds

- ACLU attorneys relentlessly filing lawsuits without regard for security and inconsistent application of their sense of "principled" advocacy

- trial lawyers extorting as much money as possible from "the system"

- a Congress that approaches judicial nominations with an entirely political calculus

oh yes...I forgot...it isn't about truth...it isn't about principle...and it isn't about the sanctity of core institutions

it's about power......

what the pundits have been observing of late is spot on: chose your side and line up.....

Posted by: lmao | January 1, 2008 09:17 PM

What it all boils down to is that America's liberal Democrats are defending the Al Qaeda terrorists from the wrath of the American people and helping them avoid capture, while conservative Republicans are defending the American people from the Al Qaeda terrorists bombs that they may be able to detonate if the liberal Democrats- in collution with the terrorists- get their way. By contrast catching the terrorists before they can do any harm to the American people is what the Bush administration is trying to do, and they've done an exellent job so far.

Posted by: madhatter | January 2, 2008 04:00 AM

You have,at least chosen the right name;MADHATTER

Posted by: cincigal74 | January 2, 2008 09:35 AM

"madhatter" The brilliance of the post is reflected in the selected name!

Posted by: cben | January 2, 2008 09:49 AM

"madhatter" The brilliance of the post is reflected in the selected name!

Posted by: cben | January 2, 2008 09:52 AM

Let's accept what you say about OPR being busier than usual doing its job of investigating allegations of AUSA misconduct. If so, I agree, that's not a good thing, although I'd prefer it to AUSAs running amok with no meaningful accountability to anyone. You were implying the latter in your post of the other day.

Really not trying to be arrogant -- all I can say is that when I was in the job I was keenly aware of what OPR does and what can lead to an OPR investigation. Everybody got a lecture about it at the NAC in South Carolina, at mandatory training. Nobody I knew wanted to subject themselves to an OPR investigation. And when I was in the courts on behalf of the government, I never lied to a judge, and I never misled a jury. I did not know of any of my peers who did. Also I took many positions that favored defendants, subjects, and targets, when the circumstances called for it, and frankly that was often, from indictment (or no indictment) to sentencing. It's one reason why I have been successful in private practice after leaving the office. The defense bar trusts me and so does the current batch of AUSAs and their supervisors, as well as a few of the very independent Article III judge in our district. Funny thing how your word is your bond.

I also think you're ignoring the accountability factor of working in front of Article III judges. They have the power, and they have exercised that power, to issue orders chiding an AUSA by name for various errors including discovery violations and other improper conduct. Once your name appears in such an order, you carry it with you for the rest of your career, and you can forget about ever applying for a judgeship. Maybe you don't think that means anything to an AUSA, but it meant something to me.

So I did react a bit reflexively to the tone and breadth of your earlier comments. Assume that I indeed am blissfully ignorant of the breadth of AUSA misconduct. All I can say to that is, believe what you want to believe.

Posted by: ExAUSA | January 2, 2008 12:56 PM

ExAUSA, thanks for dropping the ad hominems (it never pays to rise to the bait of ranters)and providing a measured insider's perspective.

Posted by: Seytom | January 3, 2008 09:25 AM

There is a far more extreme and serious example of administration collaborators who despicably and clandestinely and successfully tried to orchestrate the removal of private attorneys and law firms that were providing pro bono work to one of America's best and brightest -and most valuable- patriots leveraging the tools of the world's most advanced dirty tricks apparatus.

I will elaborate further later.

Posted by: Singing Senator | January 3, 2008 11:42 AM

Unfortunately, the investigations of this administration will fade with the introduction of the next administration!

I would love to have every candidate asked if he/she would be willing to insist on completing each and every investigation, including those that were 'swept under the rug'!

Many investigations should be re-opened that were blocked by 'so called' executive privilege and the mis-use of the 'official secrets act' which in itself are unlawful!!

Posted by: Bob Egan | January 4, 2008 10:44 AM

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