DoJ and SCOTUS serve the Party

From Pat:

The good work was posted by PMK on Salon’s TT on the White House Thread, George W. Bush: Public Enemy #1


Was the release of the staff memo rejecting the Texas redistrict plan an MLH (modified, limited, hang-out)?

I poked around a bit. Looks to me like they could be softening things up for the day SCOTUS declares the map unconstitutional. (You know: It’s old news. Was upheld. It’s debatable. No reason to question why SCOTUS didn’t overturn it BEFORE the election. Nothing to see here.)

—— Timeline of Preclearance and Other Actions is VERY Telling —–

The Texas case is not alone. The chief of the department’s voting rights section, John Tanner, overruled staff on Georgia’s ID req too (came out last month)

I have no doubt that we are going to find out they did the same in a host of key decisions that affected the 2004 elections. During the election, Tanner’s recommendations went to R. Alexander Acosta, Assistant Atty Gen Civil Rights Division who issued (if change benefited repubs) or denied (if the change benefited dems) preclearnce.

June 20, 2003. Ashcroft announces New Leadership in Civil Rights division. Boyd out, Acosta nominated.

Who are these guys? Whos who in the right-wing conspiracy. Not surprising, both Boyd and Acosta are members of the Federalist society. Acosta bio on WH site.

The bio fails to mention he clerked for Alito 1994-1995

Looks to me like Acosta was put in place to do the dirty work and then moved out to make sure the he couldn’t become the personification of the insupportable actions. Or perhaps just to reward the guy with a job back home. (Acosta is a Cuban from Miami). Or they need him in place to help corrupt the upcoming Florida elections. Or all of the above.

In any case, it appears they didn’t trust Acosta’s predecessor, Ralph Boyd (being black and all, Federalist Society member or not).

August 2003. Acosta is confirmed by Senate.

December 20, 2003. Acosta approves Texas remap.

December 23, 2003. Members of congress seek recommendation memo from career staff in Voting section.

January 6, 2004 – Three judge panel upholds Texas remap.

September 23, 2004 (per October 29, 2004 report) – Hoyer writes Acosta on September 23. Never hears back. From letter: “It has been reported to me that one or more representatives of the Civil Rights Division have told state election officials that the Help America Vote Act (HAVA) precludes a state from processing a voter registration form on which the voter fails to check the citizenship box even if the voter has expressly attested on the form to his or her citizenship,”

October 19, 2004 – SCOTUS “non-decision” for three judge panel to take a second look at decision to uphold Texas redistricting plan. Of course “The court’s action will not affect the 2004 elections in Texas.”

May 20, 2005 РJim̩nez announces resignation as US Atty for Florida Southern District

June 10, 2005. Acosta resigns. Appointed interim US Atty for Southern district of Florida.

August 30, 2005 – Acosta’s top priority as US Attorney: Terrorism? Organized crime? Narcotics trafficking? Immigration? Public corruption? Naaahh. His top priority is Porn.

November 12, 2005 -Washington post reports on exodus from, and low moral at the Civil Rights Division. Notable. Although he led the division until recently Acosta’s name is not even mentioned.

——- Misc. On Boyd ——————-

May 21, 2002, Boyd at Justice to file Voting Rights Lawsuits.
“My hope, my aspiration and my expectation is that in each of those we’ll reach an enforceable agreement prior to the filing of the lawsuit,” Boyd said. Even so, he indicated the suits still would be filed.” – which of course is what happened. Wimpy agreements. No accountability.

According to November 13, 2005 Post article “The Bush administration has filed only three lawsuits — all of them this year — under the section of the Voting Rights Act that prohibits discrimination against minority voters, and none of them involves discrimination against blacks. The initial case was the Justice Department’s first reverse-discrimination lawsuit, accusing a majority-black county in Mississippi of discriminating against white voters.”

Where is Boyd now? Since February 2005, at FREDDIE MAC

———- Misc. on Acosta ———–

Acosta on Florida Recount.

Judges have great discretion over the remedies in election cases, but many observers see few options other than a new vote in the area in question. A judge could move to limit the scope of the vote to only those who went to the polls on Nov. 7.
A re-vote could take weeks to carry out, on top of the weeks if could take a court to reach such a decision.

“The bottom line is good lawyers can often drag things out, and there are plenty of good lawyers in Florida,” said Alex Acosta of Washington’s Center of Ethics and Public Policy, a group focusing on constitutional issues.
Great guy for Civils Rights section. It’s just hunky-dory with him for lawyers to delay and misuse the the courts to violate our rights.

Some additional redistricting related info.

—————- Arizona —————–

April 24, 2004 – Coalition of minorities sue to approve legal map for 2004 elections.

May 28, 2004, Arizona – Arizona to use 2002 district map despite unconstitutionality.

June 2 – New, legal map, could have gone into effect if **Dept of Justice moved quickly**.

———— Florida ————–

18-7 Republican congressional delegation; an 84-36 Republican State House; and a 26-14 Republican State Senate. In a state that’s pretty much 50-50.

November 11, 2005 – Independent Commission Initiative challenged. Committee for Fair Elections submits responses to Florida Supreme Court.

——– Georgia ————————

Georgia, February 1
h, 2004 – 11th Circuit Court of Appeals overturned redistricting maps for Georgia’s state House and Senate.
A three-judge federal panel in Atlanta ruled Tuesday that statehouse Democrats tried to gain advantage.

February 26th, 2004 -The Supreme Court refused to grant a stay of the decision prior to the 2004 elections. COX, GA SEC. OF STATE V. LARIOS, SARA, ET AL. The application for a stay of judgment pending the disposition of the appeal presented to Justice Kennedy and by him referred to the Court is denied.

And, there is probably more, but I don’t have time to detangle it all. Something was up in Mississippi too in 2003/2004. Appears a map they claimed benefited Dems was struck down on appeal (so much for courts not having a place in a political process as asserted by SCOTUS). Lots of stories on follow up legislative and court action. Not sure if redistricting based on 2000 census was adopted before 2004 elections.

Clearly, the pattern is to use the courts and justice dept to delay and keep status quo on any change that fails to benefit repubs. speed through anything that benefits repubs.


Treason: The Domestic Component

by Kagro X

Earlier today, in DemFromCT’s post highlighting the day’s revelations regarding theillegal Texas redistricting, I laid out a bare bones sketch of why this particular manifestation of the Republican Culture of Corruption was so egregious.

There’s more to analyze about this case, but it’s looking like I’m going to have to stand by my on-the-spot conclusion. I don’t know what to call these people who occupy the District of Columbia at the moment, but the idea that it’s a government is, frankly, little more than an insult to the Constitution.

Then again, what’s one more at this point?

TNH readers already know why I feel compelled to say that the web of extralegal activities uncovered in the course of investigating Plamegate and related misdeeds rise to the level of espionage and treason.

Today’s revelations trace much the same arc: Bush’s domestic occupation forces are executing their agenda under cover of what used to be the well-founded jurisprudential doctrine of substantial deference to executive decision-making powers. What do I mean? I’ll break this one out for ease of comprehension, to the extent that’s possible.

It is to say that:

1) Because it is known that in the real world the decisions made within and by the executive branch can never be made in isolation from improper influences (read: purely partisan political considerations), and;

2) that that reality requires we anticipate a certain amount of what we’ll call “leakage” of politics into the policy arena, and;

3) that in order to avoid turning the examination of any and every executive decision into a constitutional crisis, considerable deference must necessarily be afforded as a matter of routine when evaluating the decision-making process within a judicial (or quasi-judicial) framework, and therefore;

4) the standard of deference typically applied requires plaintiffs against the executive to prove that the decision was wholly without justification, even mistaken or misguided justification — that is, that it was “arbitrary and capricious.”

Now surely, when the inevitable questions are asked about how it came to pass that the Texas redistricting plan could be unanimously recommended for rejection by the panel assembled within the Justice Department’s Civil Rights Division because it was on its face violative of the Voting Rights Act, but yet end up “approved” by (higher-ups at) DoJ, those higher-ups are going to have a story “justifying” the decision. “We simply disagreed with the staffers.” That’s all it takes. Why? Because the rules were written when it was still safe to assume that governmental actors did the boneheaded things they did out of a sincere desire to govern, as opposed to whatever it is the occupying junta’s forces have in mind.

Just as with Plamegate and all “stovepiping” progeny, where the claim will be that it’s within the presidential prerogative to redirect (and if necessary, reassemble from spare parts or whole cloth) the authorized and legitimate intelligence services of the United States. And just as with DeLay’s money laundering, with the K Street Project, with Jack Abramoff’s staggering corruption, and with who knows what else is yet to be unearthed, where the claim is that to single such activity out is to “criminalize politics,” so with the Texas redistricting do we see that it is the intention of the occupying forces to actively employ the standards of deference — “arbitrary and capricious” in the case of civil violations, and “beyond a reasonable doubt” in criminal — as cover for their wrongdoing, because they know that no courts (save the “activist” ones!) have the tools to reach them without throwing out time-honored and otherwise quite reasonable restraints against the (real) government’s power to levy punishment and mete out justice.

But what makes the Texas redistricting example so galling is that the DoJ’s top officials went out of their way to knowingly play that deference as a trump card against those they knew would seek to enforce the Voting Rights Act. And let’s keep in mind that they knew that job would fall to citizen plaintiffs, precisely because the VRA’s appointed guardian — the Department of Justice — would at their direction not only refuse to do the job, but would bury the evidence that it needed doing at all!

When in fact those citizen suits did come to pass, the plaintiffs were forced by the DoJ leadership’s arbitrary and capricious acts to come to court required to take on this tremendous burden of proving that there could not possibly be any non-malicious explanation for the redistricting plan. And why such a heavy burden? Why not simply ask them to make a convincing case that the redistricting diluted votes, or discriminated based on race? Because the “approval” of the plan by the DoJ is presumed by itself to be a determination of its non-violation of the Voting Rights Act! The DoJ leadership is in this case its own judge and jury!

But the DoJ didn’t really “approve” the plan at all! In fact, the professionals charged with reviewing the plan unanimously rejected it as violative of the VRA! Ah, but the junta forces occupying the office suites with final word on what the “Department” does and doesn’t approve say differently. And the jurisprudential presumption is that that is sufficient.

Steny Hoyer explains it this way:

[T]heir certification of the Texas redistricting plan may have misled the three-judge panel into upholding it almost two years in the belief that no such certification would have been possible unless it had first withstood the legal and analytical scrutiny of the department’s election law experts. Had the panel known that career lawyers in fact concluded the plan violated the law and thus should not be approved, it is entirely conceivable the panel would have rejected the plan.

Of course, the memo unanimously recommending the rejection of the plan was buried, and had to be leaked to the press in order to come to light at all, while the staffers involved in its preparation were, as the Post article puts it, “subjected to an unusual gag rule.” Meaning that while the panel and the appellate courts now do know what the career lawyers concluded, those who’re responsible for making it known may well face prosecution.

So, well… we have a problem here, don’t we?

Have you ever seen The Madness of King George?

There’s a great scene in which Dr. Willis, who eventually “cures” George III of his illness, muses aloud:

Do you know, Mr Greville, the state of monarchy and the state of lunacy share a frontier? Some of my lunatics fancy themselves king

s. He… is the king. Where shall his fancy take refuge?

The same illness affects those of us who are bystanders to the junta. Is the DoJ’s decision that of the lunatic, or that of the king? Is the Pentagon’s OSP? The WHIG? They’re each dressed in the king’s clothes. Each wears the crown. But yet…

Or perhaps it’s the story of The Prince and the Pauper. Is the pauper for all intents and purposes the prince, so long as no one knows to question?

Still, I’m partial to the Madness comparison, if only because what Dr. Willis says next explains so much more:

Well, who’s to say what’s normal in a king? Hmm? Deferred to, agreed with, acquiesced in. Who can flourish on such a daily diet of compliance? To be curbed… stood up to… in a word, thwarted exercises the character, elasticates the spirit, makes it more pliant. It’s the want of such exercise that makes rulers rigid.

So here we are, back at a constitutional crisis from which there is no clear path out. Impeachment? Impossible. But impeachable? Prosecutable? Certainly. But only at the cost of opening the door to a future in which there are no boundaries between lunatics who would use the precedents established to mire every future king in litigation and articles of impeachment for every action he takes and every decision he makes. Everything’s “fair game” now. And who’s to say who’s the lunatic and who’s the king? After all, who’s “sovereign” here, anyway?

So, do we sit on our hands? Wait out the next three years and just hope it gets no worse, and then never happens again? Or vindicate what we believe we’ve discovered? If we do, we’re doomed. If we don’t, we’re doomed.

We can’t take on the lunatic king, lest he use the king’s power to brand us lunatics. When the sovereign power derives from the consent of the governed, he’s both lunatic and king, and so are we. Where will our fancy take refuge?

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