Sunday, September 28, 2014

The U.S. Senate should condition confirmation of any nominee to succeed Attorney General Eric Holder on express commitments under oath to investigate and prosecute through a special prosecutor the Obama administration’s rampant lawlessness reminiscent of the Nixon administration and Watergate.

The Watergate scandal, however, also occasioned the confirmation precedent for cleansing the Justice Department’s Augean Stables.

Elliot Richardson was nominated by President Richard Nixon in 1973 to succeed Attorney General Richard Kleindienst, who pleaded guilty to misleading Congress the next year. (Kleindienst’s predecessor, John Mitchell, was also later convicted of a felony).

The Senate was dubious that the Department of Justice would be capable of fairly investigating an assemblage of suspected White House crimes, including burglary, obstruction of justice and otherwise.

Accordingly, the Senate Judiciary Committee conditioned approval of Richardson’s nomination on the promulgation of regulations that would create a special prosecutor to conduct a criminal investigation of the White House-linked crimes. The committee further insisted that Richardson appoint as special prosecutor Harvard law professor Archibald Cox, solicitor general under Nixon’s nemesis, President John F. Kennedy. In addition, the committee demanded that the regulations preclude the dismissal of Cox by Richardson except for “extraordinary improprieties.”

The rest is history.

Nixon was forced to resign under an impeachment cloud. And when he departed from the White House lawn in a helicopter on Aug. 9, 1974, the Statue of Liberty shined like a sparkling star. It was one of Americas’ finest constitutional hours.

The Senate in 1973, however, exhibited a semblance of moral courage and bipartisanship. It was soon to create the Church Committee to investigate flagrant law violations by the intelligence community — including the CIA’s “family jewels.”

The Senate today, however, is invertebrate. Its blind partisanship is childish. But it is morally obligated to condition the confirmation of any successor to Mr. Holder on the promulgation of special prosecutor regulations generally corresponding to Richardson‘s. Moreover, it should insist that the new attorney general appoint an outstanding lawyer as special prosecutor with impeccable credentials of the type Edward Levy brought to the department when he was appointed attorney general by President Gerald Ford. George Washington University Law Professor Jonathan Turley fits the special prosecutor mold.

The Senate owes this honor to the rule of law out of gratitude to our forefathers, justice to ourselves, and duty to posterity.

The regulations should stipulate the following special prosecutor investigatory agenda:

• President Obama’s initiation of wars without congressional authorization.

• His killings of American citizens on his say-so alone.

• His dragnet telephonic and Internet surveillance of every American citizen under the Foreign Intelligence Surveillance Act (FISA) that he would have concealed forever absent Edward Snowden.

• His secret surveillance of Americans and foreigners under his alleged inherent constitutional powers as commander-in-chief.

• His refusal to investigate or prosecute thousands of prima facie violations of FISA perpetrated under the Bush administration’s Terrorist Surveillance Program.

• His refusal to prosecute cases of waterboarding, an enhanced interrogation technique which Mr. Obama and Mr. Holder agree constitutes torture.

• His invocation of executive privilege and state secrets to stymie the investigatory powers of Congress and the adjudicatory powers of the courts.

• The politicization of IRS protocols for processing applications for tax-exempt status.

• His substitution of executive agreements for treaties to circumvent the Senate’s foreign policy prerogatives.

• The CIA’s spying on the Senate Intelligence Committee to obstruct its oversight responsibilities.

• Any other arguable constitutional irregularity.

The results of the special prosecutor’s investigations should be reported unredacted to Congress, which should decide which portions to publicize.

Senators should remember that this nation’s independence and rule of law were not won by summer soldiers and sunshine patriots.

For more information about Bruce Fein, please visit brucefeinlaw.com. www.brucefeinlaw.com.

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