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Prosecutor Purge Is Illegal, Lawyer Argues
An Arkansas lawyer has risen to challenge the law which allows the administration to circumvent Senate approval when installing new U.S. Attorneys.
On behalf of his client, an alleged crack cocaine dealer who's accused of killing a man he'd robbed to prevent him from talking to the police, Little Rock lawyer John Hall has challenged the appointment of Timothy Griffin, the recently-appointed U.S. Attorney for eastern Arkansas with close ties to the White House.
Griffin's resume is long on Republican bona fides and short on the sort of law experience usually expected of U.S. Attorneys. He was installed by Attorney General Alberto Gonzales, and thanks to a measure slipped into the USA PATRIOT Improvement and Reauthorization Act last year, may never face Senate confirmation.
Hall's motion argues that because Griffin's appointment circumvented Senate confirmation, it was unconstitutional -- thus rendering the prosecution of his client invalid. "Contrary to the [Justice Department], I've actually read the Constitution a few times," Hall told us. You can read his entire motion here.
We've excerpted the best part below the fold.
An example [of how the Attorney General could use the new law to circumvent Senate confirmation], one that might be called extreme but is not the slightest bit implausible, is this: The President appoints a qualified “strawman” (or woman) as a United States Attorney that the President knows will be confirmed by the Senate at the beginning of the President’s term of office. The Senate advises and consents to the appointment, and the U.S. Attorney is sworn in. Shortly after that, the Attorney General removes the U.S. Attorney and appoints a replacement who never has to face the Senate, and it turns out that the replacement U.S. Attorney is inexperienced or unqualified for the job or a blatantly political appointment that no one can understand would qualify as “the principal federal law enforcement officers in their judicial districts.” Conceivably, under the Attorney General’s interpretation of his appointment power in § 546(c), an incompetent or a blatantly politically appointed* U.S. Attorney could hold office like this for seven and a half years, or even longer, assuming the President is re-elected, without ever facing Senate confirmation over his or her qualifications.
*The footnote reads: "As has been suggested here because of Mr. Griffin’s connection to Karl Rove and the President’s 2000 Florida recount case that assured his election."

Comments (48)
Justin B. wrote on January 25, 2007 5:24 PM:Yea!!
hannah wrote on January 25, 2007 5:27 PM:It's a beautiful day when an alleged crack dealer and his lawyer are the ones standing up for our Constitution.
MB wrote on January 25, 2007 7:13 PM:Perhaps it's just the East Coast elitist lawyer in me, but the quality of the writing in that brief just makes me itch . . .
libby wrote on January 25, 2007 7:22 PM:John Wesley Hall is a tenacious lawyer with a long (and good) reputation for challenging power in Arkansas. This should be interesting!
Allsburg wrote on January 25, 2007 7:26 PM:I hear you, MB. Kudos to the (probably) over-worked and publicly-appointed lawyer, but I'm not really sure his client has standing to challenge the constitutionality of a U.S. Attorney's appointment.
XL wrote on January 25, 2007 7:28 PM:The writing aside, it is entirely appropriate that a citizen accussed of a felony should be challenging the appointment of a unqualified prosecutor. The state has so many resources as its disposal and if an unqualified and unscrupulous district attorney prosecutes a case incorrectly, the effects can be devasting with innocent persons sent to jail and us the tax payers having to pay for not the the incompetent's salary, the jail, but probably also restitution for sending an innoncent person to jail, causing them to lose their place in society as well as their personal freedom.
XL wrote on January 25, 2007 7:32 PM:I respectfully disagree with Allsburg. As a citizen that directly (could not be more) is affected by a undebated, likely unconstititutional provision that leds to the appointment of an unqualified prosecutor, this accussed has a better standing argument that most. I would be interested in what would be arguments against standing.
jim wrote on January 25, 2007 8:02 PM:I'm glad Allsburg isn't MY lawyer.
A client's "standing" is irrelevant when registering a challenge on Constitutionality. At stake is the validity of the challenge, not the challenger.
And fuck you, Mark Blacknell. I'm sure you've written plenty of elegant briefs ... for losing clients.
Luke wrote on January 25, 2007 8:06 PM:I don't think that Hall's case has any merit, given that the Constitution's description of the President's powers states that:
"He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments." [emphasis mine]
The latter part of this vesting of Presidential power would seem to delegitimize Hall's case.
That said, I think there is definitely a legitimate case on the "straw man" argument that this particular provision could be exploited by a President who is less than honest with the Congress. It would be a poor political move, but clearly it's perfectly within the ability of the President, as we're seeing now.
Mike wrote on January 25, 2007 8:09 PM:Cal me crazy, but if I were on trial, I'd *want* an unqualified bozo as a prosecutor.
scribe1937 wrote on January 25, 2007 8:11 PM:I was happy to see the Senate look into this.
none wrote on January 25, 2007 8:17 PM:I'm happier seeing a dumped prosecutor challenge these firings on statutory and constitutional grounds.
I'm not a lawyer, but I'm optimistic on this one.
"A client's "standing" is irrelevant when registering a challenge on Constitutionality. At stake is the validity of the challenge, not the challenger."
Completely false, see the constitution's case or controversy clause. Cases like Lawrence v. Texas needed plaintiffs with standing and couldn't have been brought by just anyone.
mbbsdphil wrote on January 25, 2007 8:40 PM:This is the sort of defense that will be pushed in every jurisdiction in which Mr. Bush makes his secretive "interim" replacements. It will need to go to each circuit court and ultimately the Supreme Court to put these to rest.
Mr. Bush, however, claims to so value judicial economy that he wants to deprive those wronged by professional malpractice from having their day in court, or being able to collect damages equivalent to their losses, or impose penalties - from the perspective of the resources available to the abusing party - sufficient to deter future abuse.
So Mr. Bush has just dumped a few more cases on his beleaguered judiciary in order to expand his patronage network and obstruct the progress of investigations he finds inconvenient. His cynicical abuses alone merit censure from Congress. Let the subpoenas flow.
Hanan Kolko wrote on January 25, 2007 9:16 PM:Allsburg - If a defendant being prosecuted by an unconstitutionally appointed US attorney lacks standing, then who has standing to challenge the appointment?
Hank.
darlost wrote on January 25, 2007 9:20 PM:A few good lawyers with balls like this guy could bring the down the whole bushocracy.
Richard L. Adlof wrote on January 25, 2007 9:22 PM:There NEEDS to be 330 million challenges to the broken P. of S. entitled the PATRIOT Act - one for every citizen for 330 million different reasons. The souls of our Founding Fore-fathers wail every moment every heinous word is left in place.
Every waking moment of the present Adminstration needs to be spent digging their own presonal graves and screaming into the night as America dismantles this Fascist crap.
Al in Austex wrote on January 25, 2007 9:58 PM:Regardless of the merits ,or standing of this case I still believe its vitally important to oppose BushCo by any and all means necessary- If nothing else maybe we can get the Chatttering Class to give this challenge much air time -particularly in the context of Karl Rove & the 2000 theft of our elections & way of life .
Bambi1950 wrote on January 25, 2007 10:08 PM:It is our duty as Americans to oppose the NeoCons, Neo Thugs , and their right wing agenda.
I for one have renewed my "standing " with Amnesty International & The NRA --
Damn, I used to think that I was 'right wing conservative'. Now I seem to be 'left wing liberal', thanks to the Bushocracy. It's enough to make one's head spin.
OCPatriot wrote on January 25, 2007 10:11 PM:As I get tired of saying, the only thing these Bush appointees seem to understand is a metaphorical whack to the side of the head with a 2x4.
MB wrote on January 25, 2007 10:12 PM:And thank you for that measured and incredibly informed assessment, Jim.
Lori Price wrote on January 25, 2007 10:33 PM:'The first thing we do, let's kill all the lawyers.' --William Shakespeare, Henry VI (Act IV, Scene II). The Bush regime's most recent assault on the law --Compilation by Lori R. Price, Editor, Citizens for Legitimate Government
johnw wrote on January 25, 2007 10:40 PM:http://www.legitgov.org/bush_regime_attacks_lawyers_180107.html
Am I the only one who has noticed that Allsburg's views have been mirepresented by two people on this thread? Here's what he actually said:
"The writing aside, it is entirely appropriate that a citizen accussed of a felony should be challenging the appointment of a unqualified prosecutor."
A little accuracy and civility might help keep the people who are on your side participating.
Cyberian wrote on January 25, 2007 10:40 PM:MB is on solid ground here.
STANDING is crucial in every suit brought forward which alleges a breach of the Constitution, Jim.
At stake is the determination by the Court that the suit is brought forward by parties who have demonstrated both harm from the law or statute and sufficient connection.
"Locus Standi"
If the SCOTUS assesses the briefs, and rules (as they do all too often) that there is no, or even not enough "standing", they will not even hear the case.
Rob wrote on January 25, 2007 10:42 PM:Actually john that was XL that said that.
This is what Allsburg said:
----------------------
I hear you, MB. Kudos to the (probably) over-worked and publicly-appointed lawyer, but I'm not really sure his client has standing to challenge the constitutionality of a U.S. Attorney's appointment.
Posted by: Allsburg
Penney wrote on January 25, 2007 10:57 PM:Date: January 25, 2007 07:26 PM
Whether or not Mr. Griffin has the proper standing to make this complaint, the upshot is that it shines more light on the Bushies turning the US government into a playground for its friends.
The more public pressure the better.
Cyberian wrote on January 25, 2007 10:57 PM:As to the question of whether this plaintiff has standing or not in this suit, my opinion, counter to Allsburg's, is yes.
There is no question that his client's right to a fair prosecution and trial has been damaged by the action of the President.
But the Constitution is weak here; the language that says
"...but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments..."
is asking for exactly this kind of trouble with people like the GOP's infamous 108th Congress allowed to decide what they think proper.
alley wrote on January 26, 2007 12:36 AM:Once upon a time a new nation was born from the blood of those tired of all the crap they had to put up with and set out to change the rules, it worked.
Joe wrote on January 26, 2007 12:45 AM:At least for a hundred years or so, but they choose to once again to lay down with the same dogs and they got fleas again.
Scholars argue what their forefathers meant when writing these strange cryptic wordings known as their Constitution.
Habeas corpses., what the hell is that they wonder. The Constitution says they can’t for the most part suspend it. Yet some say no habla, so the point was ruled mute
They now are looking for some kind of new God to pray to, for all the old Gods really sucked, it will probably be an aluminum one this time around for Gold is way to expensive these days.
The brief appears to argue that the office is so important that the attorney -- with broad powers in his/her district -- is not an "inferior" office that the AG can himself appoint.
The brief doesn't really cite cases that define "inferior," so it's unclear how much force this has.
MarchDancer wrote on January 26, 2007 1:34 AM:I will watch this case carefully. When Bush and that 109th is gone, is it possible to just dump the entire so-called Patriot Act? Or must it be done painstakingly piece by piece? How on earth will we ever get our country back? I weep.
Robin Boerner wrote on January 26, 2007 2:55 AM:Check out the appointment below of Nelson Cohen in Alaska after Bush fired Deborah Snith in August 06. The interesting part is that it was over Sen Ted Stevens objections. Maybe. At the time the FBI was busy tearing apart Ted's son Ben Stevens Alaska state legislative office looking for evidence of the Corrupt Bastards Club (I'm not making that up, it was in the supeona, check out the Anchorage Daily news archives).
Rumors in Alaska are presuming that Cohen was sent here to take out Ted. Read his resume' below. I'll bet he was really sent here to make sure the FBI's raids doesn't touch Ted. And, a nice federal judgeship could be in store for Mr. Cohen if he does his master's well. Time will tell...
He is doing very well for the Bush Administration so far. He is fully ignoring Civil Rights violations by none other then the US Army on a 100% disabled veteran in one federal case before the court in Anchorage. Very Bush like. Ignore Civil Rights, go Army!
http://72.14.253.104/search?q=cache:_IJ5SwVaF5UJ:corporatecrimereporter.com/documents/cohen.pdf+nelson+cohen+alaska&hl=en&gl=us&ct=clnk&cd=2&ie=UTF-8
United States Attorney’s Office
District of Alaska
222 West 7th Avenue, #9
Anchorage, Alaska 99513-7567
FOR IMMEDIATE RELEASE
Contact: Deborah M. Smith
Tuesday, August 22, 2006
First Assistant U.S. Attorney
907-271-5071 / Fax: 271-2345
JUSTICE DEPARTMENT ANNOUNCES APPOINTMENT OF NELSON COHEN
AS UNITED STATES ATTORNEY FOR THE DISTRICT OF ALASKA
WASHINGTON, D.C. - The Justice Department today announced the appointment of Nelson Cohen to serve as the United States Attorney for the District of Alaska. Mr. Cohen will serve under an Attorney General Appointment. He succeeds First Assistant United States Attorney Deborah Smith, who has served as Acting United States Attorney under the Vacancy Reform Act since U.S. District Court Judge Tim Burgess resigned from the position to take a seat on the federal bench in 2005. Under the Vacancy Reform Act, First Assistant United States Attorneys can only serve for 210 days as Acting United States Attorneys and Ms. Smith's appointment expires on August 22, 2006. Mr. Cohen comes to the District of Alaska with a varied and impressive history of service to the Department of Justice and to the legal community. Since 1987, Mr. Cohen has been an Assistant UnitedStates Attorney in the Western District of Pennsylvania, where he presently serves as the Deputy Criminal Division Chief overseeing the White Collar Crimes Section. Before joining the U.S. Attorney’s Office in Pittsburgh, Mr. Cohen practiced law for 10 years inAlaska: first as an Assistant United States Attorney responsible for both criminal and civil cases, with anemphasis on drug prosecutions, medical malpractice defense and appellate practice, and later as a private practitioner in Anchorage. Mr. Cohen started his career as a trial attorney in the Allegheny County, Pennsylvania, District Attorney’s Office, where he prosecuted robbery and homicide cases.In addition to his legal experience, Mr. Cohen has been a presenter at the Federal Law Enforcement Training Center, the National Health Care Anti-Fraud Association and the University of Pittsburgh School of Law. He has also served as a Continuing Legal Education Instructor.Mr. Cohen earned his Bachelor of Arts degree in Political Science at the University of Pittsburgh,and his law degree from the Duquesne University School of Law. # # #
Paul in LA wrote on January 26, 2007 4:03 AM:Luke, what part of
"and by and with the advice and consent of the Senate,"
don't you understand?
"shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States,"
The establishment of the Senate and its required advice and consent is nothing like new law. It has a mile long precedent, has been ruled on plenty of times, and is non-controversial. I think the Federalist Papers dealt with the issue as well.
The fact that Arlen Spector can insert language in a large bill does not make that language constitutional. Congress clearly didn't intend to change the powers of the Senate by passing that bill, and it doesn't appear that there was any debate on the topic. Patently unconstitutional.
Spector said that he voted for the Habeus bill because it was unconstitutional on its face and would never stand judicial review. Here's another example of that reasoning, but with the subterfuge of a hidden insertion -- it's cause enough for Spector to RESIGN.
Paul in LA wrote on January 26, 2007 4:06 AM:"When Bush and that 109th is gone, is it possible to just dump the entire so-called Patriot Act? Or must it be done painstakingly piece by piece?" --MarchDancer
Any bill can be REPEALED. All in one go.
Paul in LA wrote on January 26, 2007 4:17 AM:"STANDING is crucial in every suit brought forward which alleges a breach of the Constitution, Jim."
And how is the standing defective? They have business before the court, and one of the officers of the court is arguably unqualified and a crony appointment -- which begs the issue of impartiality, a key feature of any plantiff's right to a fair trial.
"At stake is the determination by the Court that the suit is brought forward by parties who have demonstrated both harm from the law or statute and sufficient connection." --Cyberian
Haven't read the brief, but "Hall's motion argues that because Griffin's appointment circumvented Senate confirmation, it was unconstitutional -- thus rendering the prosecution of his client invalid."
Which is not a challenge to the law itself, but rather to the APPOINTMENT without due Senate advice and consent.
The law is the AG's claim of lawful right to nominate unqualified persons. That law is itself quite clearly unconstitutional, and the plantiff has standing since their business before the court is directly affected by a court officer and the clear question of that officer's fitness.
brianm0122 wrote on January 26, 2007 8:16 AM:I can see it now, every crackhead ad child molester is going to start screaming "political persecution!"
They will alledge that their cases were brought because of some political slight or agenda. Every crackhead with enought moey to afford a decently competent lawyer will be able to drag their appeals out for years because of this.
The aristrocracy party doesn't care about law and order of course, only the appearance of law and order.
B wrote on January 26, 2007 9:21 AM:As crack dealers are de facto evil people, the constitution is clearly wrong.
It should be no problem at all to draw this case out until late 2008 and then pull Griffin so the six friendlies on the supreme court can declare that the grievance is moot and deny certiorari.
sagrilarus wrote on January 26, 2007 9:53 AM:That crack dealer should just contribute to the RNC if he wants his case dropped. Why waste time challenging the PATRIOT Act?
C'mon people -- this isn't rocket science.
Sag.
Joe wrote on January 26, 2007 9:57 AM:MB, maybe you should post one of your legal briefs or law review articles in your next comment, so that everyone can benefit from the brilliance of your legal writing.
Michael wrote on January 26, 2007 10:01 AM:Crack Dealers for Constitutional Rights, a 503(c) group. :)
Probably a lobbying group formed by Crack Dealers for a Better Tomorrow, Inc.
B wrote on January 26, 2007 10:09 AM:Perhaps it's just the East Coast elitist lawyer in me, but the quality of the writing in that brief just makes me itch . . .
I think you've identified the problem. In Arkansas we like our lawyers and judges folksy. East Coast elitist lawyers make our skin crawl.
David Lloyd-Jones wrote on January 26, 2007 10:51 AM:Speaking from my Granny Grammar, Prune-Faced Grammarian, throne, I see nothing the matter with the writing quoted from this brief.
John DiPippa wrote on January 26, 2007 11:42 AM:It is clear and understandable, but of course that may not meet the needs of a self-confessed "lawyer."
As an East Coast elitist meself, I am rather pleased by the directness and clarity.
The problem here goes beyond standing. Federal Courts have consistently held that US Attorneys are "inferior officers" for appointment clause purposes. Inferior officers do not need senate approval. The opposite conclusion means that the prior provision allowig Judges to appoint interim US Attys was unconstitutional.
The Sup Ct has not ruled on this precise issue although in Morrison v Olsen they ruled that Independent Counsel were inferior officers.
BP wrote on January 26, 2007 5:42 PM:Yeah, folksy. But I'm from the Rock, I'm not a lawyer, and I expect professionals in Arkansas to do better than that. At least use "who" instead of "that" when referring to an inidividual. I think the other point here is that John may be more of an activist than an ultra-proper attorney, I don't know him though.
Al in Austex wrote on January 26, 2007 9:20 PM:I keep repeating we must oppose the BushCo juggernaunt by any means necessary -maybe we can get this issue on Countdown with Keith - Why is the Media not focued on the Bushwhacking of all our USA's ??-
W&M wrote on January 26, 2007 10:56 PM:I keep praying that we can somehow stop the Neo thugs before they and AIPAC let loose with the nuke bunker busters on the Iranian centrifuges at Nantanz ( Remember this next generation "tactical" nuke bomb program went totally black eighteen months ago -its Rummy's gift that keeps giving)
Am I overstating the direct threat posed right now by BushCo? Who among us believes that they might not go after Iran next /The Decider issued orders to kill Iranians inside Iraq just today !
Think what you like about the quality of the brief writing and the legal claim, I would not bet against John Wesley Hall, Jr. any day of the week. He is no backwoods yokel. He has been a practicing trial attorney for more than three decades; he has been one of the preeminent criminal defense attorneys in Arkansas for most of that time; having watched him in court from a neutral position, he could give any state D.A./prosecutor or any U.S. Attorney, anywhere, a run for his/her money in any criminal case; he is no stranger to arguing before the U.S. Supreme Court, having done so several times - an accomplishment most lawyers will not manage even once in their entire career; he is licensed to practice in New York, Nevada, Tennessee, and the District of Columbia, seven federal district courts, as well as seven of the thirteen federal appellate circuits; he is one of the principal draftsmen of the Code of Conduct for Defence Counsel appearing before the International Criminal Court, adopted by the International Criminal Bar in Berlin in 2003; he lectures nationally and has been nationally recognized for his knowledge and skills (see link below); he is a long-time, card carrying member of the ACLU, and he literally wrote the book on trial practice in Arkansas.
And, no, I'm not a friend, acquaintance, current or former client, fan, supporter, beneficiary, sycophant, or otherwise indebted (beyond the general, public debt for his decades of tireless efforts in protecting the rights of the accused) or tied to Mr. Hall in any manner - just setting the record straight.
See: http://www.nacdl.org/public.nsf/newsreleases/2002mn039?opendocument
W&M wrote on January 26, 2007 11:31 PM:Incidentally, we should all be thankful for John Hall’s challenge, given the power granted a U.S. Attorney. J. Timothy Griffin’s “interim” appointment to the position in Arkansas is considered to be one of the most controversial of the recent oustings of U.S. Attorneys nationwide by the White House, which includes the forced resignations of U.S. Attorneys actively investigating allegations of corruption in the Bush Administration and “interim” replacements appointed without the usual Senate nomination and confirmation. Locally, Griffin is not thought to have the qualifications and experience typical of a U.S. Attorney. In fact, he appears to be little more than a Republican goon. Until late last year he worked for Karl Rove doing opposition research on Democrats. For the last ten years -- with the exception of a couple of years -- he worked as a Republican party opposition researcher digging up dirt on Democrats. Deputy Research Director for the RNC from 1999-2000. Research Director for the RNC from 2002-2005. Opposition Research Director for Karl Rove in 2005-2006. Prior to 1999, he was associate independent counsel investigating Henry Cisneros from 1995-96. After that he went to work for Dan Burton on the Hill to investigate Asian money contributions to the DNC.
Back in 2000, when he was in charge of digging up dirt on Al Gore, Mr. Griffin is reported to have had a poster hanging on the wall behind his desk which read: "On my command - unleash hell on Al." Okay behavior for a political hitman, maybe, but for someone who should be as squeaky-clean as a U.S. Attorney?
See: http://www.talkingpointsmemo.com/archives/011958.php
Scott L wrote on January 30, 2007 12:32 AM:And we reap the fruits of a one party system. The White House needs some teeth pulled.
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Frank Savimbi wrote on March 28, 2007 5:23 AM:Dear Sir,
I am writing you with trust and confidentiality, my name is FRANK SAVIMBI the son of the formal president JONAS MALHEIRO SAVIMBI from the Republic of Angola. And I got your contact through the internet business journal) and after due consideration and
after going through your profile, I became aware assured of your credibility of handling this
profitable transaction. Thus, my humble decision to solicit for your understanding and cooperation in this business that will benefit you and I.
At the mid term of the rebellion which is still on till date, my father thinking fast, decided to send my brother and I out of the country (Angola) with a total sum of (us$17.5m) SEVENTEEN FIVE million united state dollars only, sealed in a diplomatic bag meant for purchase of arms and ammunitions for the rebels and the bills were carefully defaced for security reasons.
On arrival in Lome - Togo because we are political asylum seekers, we were not allowed to operate a bank account, so with the instruction of my father I deposited the boxes in a security company, though I did not declare the content to them and unfortunately because of my fathers political influence he was assassinated.
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