John Durham: The New Patrick Fitzgerald?

By TChris, Section Misconduct
Posted on Wed Jan 02, 2008 at 08:50:33 PM EST
Tags: (all tags)

Share This: Digg!

The Unitary Executive theory, in vogue during the Bush administration, holds that all executive branch employees serve a president who has unilateral authority to direct their actions, to overrule their decisions, and to fire their butts when they refuse to do the president's bidding. An investigation of an executive agency by another executive agency in a Unitary Executive branch amounts to the president investigating himself.

Patrick Fitzgerald acted with integrity in prosecuting Scooter Libby. He should be the model for John Durham, a federal prosecutor in Connecticut who, according to Attorney General Mukasey, will lead an outside criminal investigation into the CIA's destruction of interrogation tapes. Durham has relevant experience: he oversaw an outside investigation of the FBI’s mishandling of mob informants in Boston.

The announcement is the first sign that investigators believe C.I.A. officers, possibly along with other government officials, may have committed criminal acts in their handling of the tapes, which depicted the interrogations in 2002 of two Al Qaeda operatives and were destroyed in 2005.

Durham's investigation will be conducted in grand jury rooms and in private interviews. Congress needs to conduct its own investigation (without immunizing witnesses who might be appropriate targets of prosecution) into the administration's knowledge or involvement.

The fate of the tapes had been debated by at least four top White House lawyers, according to current and former administration and intelligence officials. Those officials said the White House lawyers included Alberto R. Gonzales, then the White House counsel and later the attorney general. ...
It remains unclear how various administration officials argued on the matter of the tapes, though one former senior intelligence official familiar with the matter said there had been “vigorous sentiment” among some top White House officials that the tapes should be destroyed.

< Schtick Or Sincere? Does It Mattter? Would Obama's Political Strategy Work For Democratic Values? | Edwards Brings It Home >

Legal

Nothing on this site should be construed as legal advice. TalkLeft does not give legal advice.

TalkLeft is not responsible for and often disagrees with material posted in the comments section. Read at your own risk.

John Durham: The New Patrick Fitzgerald? | 5 comments (5 topical)

Readers Must Login or Create an Account to Comment

Limits of Investigation (5.00 / 1) (#1)
by BDB on Wed Jan 02, 2008 at 09:04:21 PM EST

I don't see how you investigate the destruction of the tapes without also investigating what was on the tapes. If you're a prosecutor or law enforcement officer, you cannot learn about possible federal crimes - torture - and then ignore it, particularly when what was on the tapes is going to go to the motivation for destroying the tapes.

To me this is going to be very different from the Libby affair. In Libby they had a guy with a long history of working for Cheney. He was a true believer. The CIA folks are mostly career people, I don't see them going down for Bush and Cheney. In fact, I suspect that's why they destroyed the tapes in the first place - they didn't trust the administration.

Even if the White House wasn't behind the tape destruction, they were behind the torture policy. And any prosecution of any CIA officer is going to lead back to - DOJ and the White House told me it was okay, legal, etc.

If Durham is even half a prosecutor, this is a potential nightmare for Bush & Co. If he's not, I wouldn't bet against the FBI (I'm assuming that will be the investigating agency) leaking in the investigation. Federal agents receive rigorous training about interrogation techniques, so the FBI will know what's illegal and why tortured confessions are useless. But they will also probably feel some affinity for the career CIA folks and the pressure they were under from political leaders. So I could easily see them leaking if the Bushies try to pass this off on CIA officers.

I think a Congressional investigation is largely useless without immunizing witnesses and immunizing witnesses is a mistake at this point. I'd rather let Durham give it a shot, he has a good reputation, and only if it looks like he's going nowhere or is being sabotaged go back to Congress. Up until now most Congressional hearings have been a joke with members more interested in playing for the cameras then in actually getting answers.

I'll believe it when I see it (none / 0) (#2)
by MileHi Hawkeye on Wed Jan 02, 2008 at 09:05:25 PM EST

"An investigation of an executive agency by another executive agency in a Unitary Executive branch amounts to the president investigating himself."

Isn't that basically what this "investigation" will be in the end? The article linked fails to address it, and I'm not convinced from what I've read elsewhere, that this will be an independent investigation.

Durham may be "outside" in that he's not from DC, but he's still a Justice department employee, reporting eventually to Mukasey. And if Mukasey isn't a lap dog for this administration, then I'm a billionaire.

Year Eight (5.00 / 1) (#3)
by BDB on Wed Jan 02, 2008 at 09:31:49 PM EST

No one is more leery of the Bush DOJ than I am and I do think the investigation needs to be watched closely for signs of bias, but there are three things working in favor of the investigation that weren't there for Fitzgerald: 1) Alberto Gonzales is not the AG; 2) we're nearing the end of the investigation; and 3) Democrats control Congress.

As for one, I think no AG in recent history, maybe ever, has instilled as much fear into career employees as Gonzales did. Ashcroft wasn't great, but Gonzales and his people were infamous for their war against career folks.

As for two, the closer we get to the end of the Administration, the less pull politicos have over the career folks. The political appointees start leaving in even larger droves. The career people know they are going to leave and fear them less. Bush & Co will never have less influence over career folks as they will have this year. True, they have infiltrated the career ranks, but those remaining will be less scared and more likely to stand tall.

As for three, as weak as the Dems have been, they provide at least some measure of cover to career folks who might otherwise not want to stand up to the Bush Administration. There at least now is a place to complain to if you think you're being corrupted - that did not exist under the Republican Congress. You were screwed no matter where you went.

The only thing that continues to work against any full investigation is the pardon power.


: D'Oh (5.00 / 1) (#4)
by BDB on Wed Jan 02, 2008 at 09:32:44 PM EST

Two should say, we're nearing the end of the administration, not investigation. Must. Type. Slower.

Not so much. (none / 0) (#6)
by Gabriel Malor on Thu Jan 03, 2008 at 12:04:09 AM EST

Marty Lederman explains why Durham will not be the new Fitzgerald.

Durham will still report to the Deputy Attorney General, who in turn reports to Judge Mukasey. This is not like the Scooter Libby case, in which the "special" prosecutor was guaranteed substantial independence from Main Justice. (That's not surprising -- it's not apparent why the AG, and Main Justice, should not have ultimate supervision over the case.)

Keep dreaming for a second Fitzmas, guys.