There’s been a lot of commentary about the Obama Administration’s announcement yesterday that it would no longer defend the constitutionality of the Defense of Marriage Act. If you’re interested in the legal policy issues and implications on this, I highly recommend that you check out the various posts at the Volokh Conspiracy. There have been a number of interesting posts there, and I especially recommend Professr Ilya Somin’s contribution on the issue. I also recommend the posts by Professors Yoo and Epstein at the Ricochet blog. Both Yoo and Epstein conclude, notwithstanding their personal support for same sex marriage, that the Administration is wrong as a matter of law and policy. Finally, Professor Orin Kerr links to a very interesting Federalist Society podcast in which the question of the government’s duty to defend its laws in court is discussed. You can listen to that podcast here.

I don’t agree with Barack Obama on pretty much anything. That much is probably clear from most of what I’ve posted here and elsewhere. It is probably also clear that I don’t think very much of Eric Holder’s performance as Attorney General, either. And, to be sure, I have some issues with the Attorney General’s decision, announced yetserday, that the Department of Justice will no longer defend at least a portion of the Defense of Marriage Act (“DOMA”). I largely agree with those who think that the DOJ’s positon is both bad policy and a bad legal decision. I also agree, however, with both Andy McCarthy and Shannen Coffin that it is preferable for the Administration and the DOJ to state plainly what we all know – that they don’t like the statute, and would rather not defend it. It is preferable that the Department not defend the statute than that they make a half assed defense, as they have been doing, or that they forego making the best defense of the statute, as they’ve also done, because they don’t really have their political or policy heart in making the case. Better to cut and run and allow the Supreme Court to appoint Special Counsel to make a proper defense of a duly enacted federal statute. So while I disagree with the policy underlying the decision, at least the administration is finally being honest about its position, and getting out of the way so that the statute may be properly defended.

As I’ve been following the semi-furor over Eric Holder’s revelation before a Congressional committee that he hasn’t read the Arizona immigration statute – a law that he’d earlier suggested he’d have the government sue to invalidate – I’ve been wondering how such an approach would work in private practice. In that context, not having read the staute is beyond inexcusable. It is incompetent, a firing offense, and borderline malpractice.I can picture the scenario. New client comes to the office, upset about a dispute over a contract or some such, and wondering what his recourse is. I tell him to leave the documents, that I’ll look them over and we’ll talk in a couple of days. Three or four days later the client calls and asks what I think. “Oh, this is outrageous. You’ve got a slam dunk case. We need to file a lawsuit,” I tell him. “Really?” he asks. “You read the contract and think I have a case?” “I didn’t read it,” I tell him “but I am aware of it. I’ve skimmed it. And you have a dead solid case.”

In the real world, the client would probably fire me. If I went ahead and filed the case, I might be subject to sanctions. If I screwed it up because I’d not done the due diligence, I might be liable for malpractice. As a lawyer, making judgments about a matter without reading the relevant documents and gathering the appropriate information is siimply not acceptable. But in the Obama White House, it seems to be the norm.

I understand that the Attorney General is busy. He can’t read everything. But for him to appear on national television and threaten legal action to invalidate a properly enacted piece of state legislation without more than a passing familiarity with the statute s no more acceptable than what I proposed in my hypothetical. Let’s be honest, making a judgment without having read the document, as the Attorney General did, is not legal analysis. It is the expression of a political opinion. An opinion based upon a personal distaste for the content of the statute. We deserve more – and better – from our nation’s chief legal officer. Eric Holder is either incompetent or dishonest, and he should resign now.

Former Pennsylvania State Senator Vince Fumo was convicted yesterday on all 137 corruption related charges in which he had been indicted. The Philadelphia Inquirer has a lengthy story regarding the verdict that can be found here. I am not surpised that umo was convicted, although I am slightly surprised that he was convicted on ALL counts. While Fumo appears to have some viable appellate issues, I would be stunned if his motion for a new trial were to granted, and even more stunned if the Third Circuit were to overturn the conviction. Bottom line is that Vince will almost certainly end up doing prison time. The Inquirer story indicates that prosecutors are expected to seek a sentence in the range o 10 years. I haven’t done the math, but I expect that 10 years might be a little below the guidelines range. Nonetheless, I would anticipate that the judge would impose a sentence of something less than that. More to come on this one.

Another of State Senator Vice Fumo’s former aide’s has agreed to plead guilty and testify against their former boss. Looks like the rats are deserting the ship – with emphasis on the word rat. The Philly.com has the story:

In another blow to State Sen. Vincent J. Fumo, a computer technician who prosecutors said carried out an electronic cover-up for Fumo has agreed to plead guilty and is expected to testify against his former boss.

Leonard P. Luchko, 51, who worked in Fumo’s South Philadelphia office, is scheduled to plead guilty on Monday before a federal judge, according to a document filed yesterday in U.S. District Court.

Luchko and another computer technician are charged with systematically deleting e-mails and other potential evidence from computers used by Fumo and Fumo aides as well as by staffers at a key nonprofit organization that figured in the federal investigation.

The cleansing of the computers was allegedly done at Fumo’s behest and for the sole purpose of thwarting the federal investigation into Fumo’s activities.

Fumo, 65, a Philadelphia Democrat who has been a political powerhouse for decades in Harrisburg, is to stand trial in a sweeping corruption case starting next month.

He is accused of defrauding the state Senate and two nonprofit groups, misusing their employees and money for personal and political advantage. He is also charged with staging a cover-up to obstruct the FBI and IRS investigations.

Luchko is the second new prosecution witness to emerge in the months leading up to the trial before U.S. District Judge William H. Yohn Jr.

In June, political consultant Howard J. Cain, for years one of Fumo’s closest confidants, pleaded guilty to tax evasion and agreed to testify against Fumo.

Another computer aide in Fumo’s office, Donald Wilson, has been cooperating with federal prosecutors since before the indictment. He, too, is on the prosecution’s witness list.

James C. Schwartzman, a longtime friend of Fumo’s who is representing Luchko, did not respond to e-mail or phone messages. Fumo’s lead defense attorney, Dennis J. Cogan, would not comment about Luchko’s decision to plead guilty.

Assistant U.S. Attorneys John Pease and Robert Zauzmer also declined to comment about the scheduled guilty plea.

Luchko and a second computer technician, Mark C. Eister, were charged with leading an effort to cleanse computers used by Fumo, his staff, and workers at Citizens’ Alliance for Better Neighborhoods, a civic nonprofit organization funded with millions of dollars through Fumo’s efforts. Eister is awaiting trial with Fumo. His lawyer, Brian P. McMonagle, could not be reached for comment.

According to the federal indictment, the effort began in earnest Jan. 25, 2004, after The Inquirer reported that the FBI was investigating Fumo.

“The FBI probe into the Senator has really set him off. . . . He wants all the Blackberries wiped,” Luchko wrote in an e-mail to Eister that evening.

Even as Luchko and Eister worked assiduously to clean others’ computers, they failed to cleanse their own, an oversight exploited by the FBI to obtain copies of hundreds of e-mails.

In those messages to other staffers and Senate contractors, Luchko repeatedly cited demands from “the Boss” that potentially damaging e-mails be deleted.

“Mail from the Boss needs to be deleted!” Luchko wrote to one Senate contractor. “. . . You really have to clean your mailbox up this is the kind of s- that can get us in trouble.”

In another, Luchko boasted about his ability to outwit the FBI, saying investigators could never extract data from a particular Citizens’ Alliance computer.

“Good Luck to them because they are going to need it,” Luchko wrote. “They aren’t getting s- off that PC.”

In the e-mails, Luchko portrayed Fumo as absolutely determined to have the staff’s computer cleansed.

“The Boss is driving us ALL nuts with this FBI madness. . . . Life just got so complicated it isn’t even funny and the killer is I can’t tell anyone about it.”

Now, it appears, Luchko is talking about it, to prosecutors.

Might not look good for Fumo, but I still wouldn’t bet against him. Dude has more than nine lives.

Source: Philly.com

From the Washington Times’ BLT blog comes the news that former Georgia representative has sued The Atlanta Journal-Constitution and its owner, Cox Newspapers for libel. The suit is apparently premised upon a series of opinion pieces that were printed on the paper’s op-ed page. One little problem with Ms. McKinney’s suit – expressions of pure opinion, such as those that appear on newspaper op-ed pages, cannot, as a matter of law, be libelous. Expressions of pure opinion are protected speech under the First Amendment. To the extent that Ms. McKinney’s claims are based upon statements in any articles that were not expressions of opinion but were rather purportedly statements of fact, she will still have a tough hill to climb. As a former member of the House of Representatives Ms. McKinney probably falls within the definition of a “public figure” and, as such, must prove that any such articles were printed with “actual malice.”

In a move that ought to surprise no one, the White House today asserted executive privilege and denied Congressional requests that two former White House aides, former counsel Harriet Miers and former political director Sara Taylor testify before the House and Senate Judicary Committees, respectively, the Associated Press reports. In a letter to the Chairmen of the two commitees, White House Counsel Fred Fielding also indicated that the Bush Administration was refusing to provide a further written explanation for its invocation of the privilege, as requested by the Committee leaders. It appears likely that, unless either side dramatically alters its position, this particular privilege dispute will find its way into court and, in all likelihood, all the way up the ladder to the Supreme Court.

My recent post criticizing Special Prosecutor Patrick Fitzgerald seems to have angered some, including one purported Yale Law School alumnus (whose comments have been deleted because they were left using what appears to have been a bogus email address). So I want to re-direct this Libby discussion. Its not about Bush, and its not about the war. Its about a perjury trap. Read more below the fold.

Here’s the problem. Fitzgerald was appointed to find out who leaked Plame’s name. Turns out it was Armitage, who told the FBI as much before Fitzgerald was appointed. But Fitzgerald hauled Libby, and others, before the grand jury supposedly investigating who leaked Plame’s name. Which he knew. The only possible reason for that was to see if they’d lie. Which apparently Libby did. But IT’S A PERJURY TRAP AND IS UNCONSTITUTIONAL. Fact is, prosecutors aren’t truth police. Substitute Clinton for Bush, Ickes for Libby and how did Clinton’s semen get on Monica’s dress for who leaked Plame’s name, and my guess is that our friend “Maddie” might see things a bit differently.  Here’s the deal, “Maddie,” whether the prosecutor has to respect your rights doesn’t depend on your party affiliation.

The Philadelphia Inquirer reported earlier this week that federal prosecutors have filed a motion asking US District Court Judge William Yohn to disqualify Vince Fumo’s defense lawyers. Fumo is represented by the legendary Dick Sprague and other lawyers from his firm, Sprague & Sprague. I’ve not yet had an opportunity to read the motion papers, but the allegations as reported in the Inquirer appear serious. Nonetheless, disqualification is an extreme remedy. I would be very surprised if Judge Yohn granted the motion, and expect the Sprague lawyers will contest this move ferociously. I am usually loathe to give Vince Fumo or anyone associated with him the benefit of the doubt, but I am guessing that the government has probably over-puffed the facts on which the motion is premised, and has in all likelihood overreached here, as prosecutors, especially of the federal variety, are wont to do.

David Stockman, who served as director of the Office of Management and Budget, was indicted today on securities fraud and other charges, the Washington Post reports. Stockman pleaded not guilty, and vows to vigorously defend against the charges. He was relased on $1 million bail.