As we hear astonishing new revelations of gov't misconduct in the Siegelman case, Russ Feingold emphasizes the need to restore the rule of law

"Whoever is the new attorney general has to be strong enough to weed out the Karl Rove clones who have been embedded in U.S. attorneys' offices throughout the United States. If not, it is going to eat at our system for years to come."

-- former Alabama Gov. Don Siegelman, in a TPMmuckraker interview

"[Senator] Feingold is convinced that this is a critical moment. If the next president does not reverse the Bush administration's doctrines, he fears that they will no longer simply be the policies of one extremist president. The danger is that they will be the nation's new understanding of the Constitution."

-- Adam Cohen, in a NYT "editorial observer" column yesterday

by Ken

If you get caught plotting, or maybe even whispering about, the overthrow of the government of the United States, I think we all know you're in for a really nasty time. But what if you're plotting the overthrow of an elected governor of one of the states? Better still, what if you're the government of the United States plotting the overthrow of a governor, using your own -- or rather our own -- Justice Department, not only to frame said governor on a bogus legal charge, but to rig the judicial process from start to shocking finish?

As regular DWT readers know, there's nothing hypothetical about the above. It actually happened, to former Alabama Gov. Don Siegelman, a Democrat who fell into the crosshairs of Bush regime political hatchet man Karl Rove. Startling as it was at first to grasp that a sitting governor could be targeted and obliterated that way, in a plot that reached up to the highest echelons of the White House, that's old news now.

What we're still learning, however, is the nitty-gritty of how the plot was actually conducted, and I have to say that even after eight years of being numbed by the level of outrage regularly roused by the outrages of the Bush regime, each successive wave of revelations about the Siegelman case shocks me more. I mean, the sheer effrontery of what they thought they could get away with. Of course, come to think of it, as of now they're still getting away with it. By now a whole clutch of regimistas should have been at minimum fired and disbarred, and more likely prosecuted and sent away.

Governor Siegelman, in the above-referenced TPMmuckraker interview, described the latest revelations -- reported by Adam Zagorin in Time magazine -- as "more shocking than anything that has come before" and "outrageous criminal conduct in the U.S. Attorney's office and the Department of Justice." The governor's appeal is scheduled to be heard in the 11th Circuit Court of Appeals in Atlanta on December 9.

THE UNINDICTED CO-CONSPIRATORS:
HOLY JOE AND BAMBOOZLIN' SUSAN

This seems an appropriate moment to pay tribute to two key figures in maintaining the coverup of the vast network of Bush regime misconduct, the two chairs of the Senate Committee on Homeland Security and Governmental Affairs.

We start with a DWT fave, the despicable Holy Joe Lieberman. I have perhaps been remiss in focusing lately on the sleazy ineptitude of his stewardship of homeland security matters in the 110th Congress. When it comes to congressional oversight of the regime's monumental malefactions, the field was left entirely to the House committee chaired by Rep. Henry Waxman. In this respect alone, Holy Joe's de facto participation as a co-conspirator in the coverup of previous Bush regime misconduct, not to mention his complicity in ongoing misconduct perpetrated under his unwatchful eye, he may have committed his most damning betrayal, not just of the Democratic Party he thinks still owes him his committee chairmanship, but of the American people.

Of course, Holy Joe has only chaired Homeland Security and Governmental Affairs since 2007. But he also chaired the committee -- back when it was was still the Committee on Governmental Affairs -- from the time in 2001 when Vermont Sen. Jim Jeffords left the Republican caucus and organized with the Democrats until the Republicans retook control of the Senate in 2003.

From 2003 until 2007, thus bracketing the expansion of the committee's mandate to include homeland security in 2005, the chairman was none other than that self-proclaimed "independent" Republican, "Bamboozlin' Susan" Collins. Senator Susie's record of governmental affairs "oversight" surely qualifies her as one of the most super of the Bush regime super-stooges.

I don't know whether it's "ironic" or "only to be expected" that the latest revelations in the Siegelman case involve shocking misbehavior by U.S. attorney Leura Canary and the assistant U.S. attorneys who prosecuted the case after Canary supposedly recused herself (but in reality, we learn, was still advising them). The misconduct turns out to have been more flagrant than anyone knew or suspected, or even imagined.

(Qualification: "Anyone," in this case, has to be taken to exclude all those familiar with a stack of evidence including extensive e-mails which the Justice Department has been sitting on for an indeterminate period, apparently hoping the material, which of course should by law have been turned over to the defense as soon as it was discovered, could be kept secret while the Siegelman appeal is pending. However, a frustrated whistleblower in the U.S. attorney's office passed the material on to the House Judiciary Committee, where chairman John Conyers made it public.)

The revelation that no legal observer seems able to believe is that, in total violation of one of the most basic principles of the trial system, the Siegelman prosecutors had a whole series of communications with the jury, during deliberations. I'm no lawyer, but it seems pretty clear to me that once the appeals court hears just this information, at a bare minimum the trial has to be thrown out. Here is Christy Hardin Smith's take in her excellent FDL report yesterday:

Beyond being incredibly stupid, this is a material breach of ethics. No, and I mean NO, ex parte communications are to occur with jurors which are not immediately disclosed fully and completely to opposing counsel and the judge throughout the trial. Ever.

But during the deliberations process where any instance of bias can be crucial to the dynamics on reaching a verdict? You can bet this will come up on appeal. There should also be serious investigation and consideration of severe sanction from the state bar and from the trial judge, whose orders on post-trial juror contact were blatantly violated as well.

I have never heard of conduct this egregious that did not result in severe, swift and ugly sanction. But this hasn't been a usual case, now has it?

And what do you know? We find ourselves back at the subject of the politicizing of the U.S. attorneys, the network of federal prosecutors who are responsible for day-to-day administration of federal justice, which flared into public consciousness, or at least into some of the public's consciousness, with the firing of that shocking number of U.S. attorneys for refusing to engage in purely politically motivated prosecutions against Bush regime enemies, or in some cases for proceeding with perfectly sound prosecutions of persons under the protection of the Bush regime.

As honorable former U.S. attorneys of both parties have been quick to insist, one of the central issues of the job is keeping politics out of the ongoing business of deciding whom to prosecute and on what charges. The more we learned about the firings, the clearer it became that they were merely the tip of the iceberg in the story of the politicizing of DoJ, which during the tenure of Idiot Al "The Torture Guy" Gonzales as attorney general seemed to become the primary mission of just about the entire departmental command, in close coordination with -- surprise! -- Karl Rove and his hit squad in the White House.

One obvious question was what all the other U.S. attorneys had done to keep their heads off the chopping block. We know a lot more about what Leura Canary, for one, did for her party, including lying about recusing herself from the Siegelman case, supposedly before any significant decisions were made, because of her husband's Republican Party connections (notably ties to Karl Rove; and, oh yes, he managed the campaign of Siegelman's 2002 GOP opponent).


RUSS FEINGOLD SPEAKS OUT ON THE URGENT
NEED TO RESTORE JUSTICE TO THE COUNTRY

If the battered elements of the Republican Party have any interest in trying to find their soul, they might want to seek counsel from some of those fired U.S. attorneys, who had a bird's-eye view of the systematic dismantling of the federal justice system during the Bush regime.

Throughout the life of the U.S. attorney scandal, I've tried every way I could think of to communicate what seemed to me the scope of the perversion of our system of government it revealed. As I've written a number of times here, allowing always for the catastrophe of the invasion of Iraq, it seems to me the Bush regime's gravest breach of faith with the basic principles of American constitutional government. (Of course the two are far from unrelated. With the DoJ transformed into the political enforcement arm of the regime, the entire military operation has had blanket protection from legal scrutiny -- with a generous helping hand from the see-no-evil "oversight" provided by the likes of Senator Susie and Holy Joe.)

One of my happiest inspirations, or so I thought at the time, was imagining that freshman Sen. Sheldon Whitehouse of Rhode Island, himself a former U.S. attorney, who had done some refreshingly sharp questioning of witness in his Judiciary Committee hearings on the subject, might play a role in helping ordinary Americans understand how crucial the integrity of the U.S. attorneys is to the administration of justice across the country. I have no reason to think that the senator ever heard about my suggestion, but I realize that even if he'd wanted to give it a go, he would have had a heck of a time getting anyone's attention -- starting with the Infotainment News Media themselves, who I'm sure know that their viewers and readers don't know or care what U.S. attorneys do.

As if the rescue and rebuilding of the Justice Department didn't pose a formidable enough challenge to the next administration, the economic meltdown has fallen in its lap, and threatens to overwhelm all other priorities. Of course, as with the Bush regime's war-making activities, the transformation of the DoJ -- and indeed the entire federal regulatory system -- from a watchdog to a lapdog has been a central feature of the financial disintegration, providing across-the-board protection against prying eyes.

So I'm delighted to have restoration of the rule of law placed front and center as an issue for the new administration by our friend Sen. Russ Feingold. I realize lately that I seem to be on an all-Russ, all-the-time kick, but this is a useful reminder that it's not just in matters of foreign relations that Russ has in recent years come to function as an often-lonely defender of core American values.

In the "editorial observer" piece in yesterday's NYT from which I quoted up top, Adam Cohen wrote about Senator Feingold's concerns:

Mr. Feingold, who is chairman the Senate Judiciary Committee's subcommittee on the Constitution, already has left his imprint on campaign finance, with the McCain-Feingold law, and has been a leading critic of pork-barrel spending and corporate welfare.

Now he has a new cause. Before the election, Mr. Feingold argued that whoever won should make a priority of rolling back Bush administration policies that eroded constitutional rights and disrupted the careful system of checks and balances. Now that Mr. Obama — a onetime constitutional law professor who made this issue a cause early in the campaign — has won the election, there is both reason for optimism and increased pressure on the president-elect to keep his promises.

Mr. Feingold has been compiling a list of areas for the next president to focus on, which he intends to present to Mr. Obama. It includes amending the Patriot Act, giving detainees greater legal protections and banning torture, cruelty and degrading treatment. He wants to amend the Foreign Intelligence Surveillance Act to restore limits on domestic spying. And he wants to roll back the Bush administration's dedication to classifying government documents.

Many reforms could be implemented directly by the next president. Mr. Obama could renounce Mr. Bush's extreme views of executive power, including the notion that in many areas, the president can act as he wants without restraint by Congress or the judiciary. Mr. Obama also could declare his intention not to use presidential signing statements as Mr. Bush did in record numbers to reject parts of bills signed into law.

Congress also has work to do. Many of the excesses of the last eight years have been the result of Mr. Feingold's colleagues' capitulation as much as presidential overreaching. He expects Congress to do more than just fix laws like the Patriot Act. He wants the Senate to question presidential nominees closely at their confirmation hearings about their commitment to the rule of law. And he hopes Congress will do its duty to impose the rigorous supervision it rarely imposed in the Bush years.

Restoring the rule of law will not be easy, Mr. Feingold concedes. Part of the problem is that it is hard to know how much damage has been done. Many programs, like domestic spying and extraordinary rendition — the secret transfer of detainees to foreign countries where they are harshly interrogated — have operated in the shadows.

And it would be a mistake to overlook Congress's role. Members from both parties voted for laws like the Military Commissions Act of 2006, which stripped detainees of habeas corpus rights, and looked the other way while the rule of law was diminished.

Still, Mr. Feingold is convinced that this is a critical moment. If the next president does not reverse the Bush administration's doctrines, he fears that they will no longer simply be the policies of one extremist president. The danger is that they will be the nation's new understanding of the Constitution.

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