Posted 7:30 PM by Howard Bashman

DAILY JOURNAL NEWSWIRE ARTICLE
http://www.dailyjournal.com
© 2006 The Daily Journal Corporation.
All rights reserved.

Posted with permission. This file cannot be downloaded from this page. The Daily Journal's definition of reprint and posting permission does not include the downloading, copying by third parties or any other type of transmission of any posted articles.

November 27, 2006

CONGRESSMAN RISES ABOVE IMPEACHMENT
Disgraced Ex-Judge Could Chair House Intelligence Panel

By Lawrence Hurley
Daily Journal Staff Writer

WASHINGTON - Congress could have disqualified U.S. District Court Judge Alcee Hastings from ever holding federal office when he was impeached and removed from the bench in 1989.

But lawmakers didn't go that far, and some now regret it.

Three years later, Hastings won his own seat in Congress, where he remains safely ensconced in a Democratic district in south Florida.

In the shake-up from this month's election, with Majority Leader-elect Nancy Pelosi making committee assignments, Hastings suddenly finds himself a front-runner for a coveted job - chairman of the House Intelligence Committee.

This remarkable comeback by a judge deemed corrupt by legislators who are now his peers can be traced to the quirky evolution of federal impeachment law, which has taken new turns with each use, right up through the proceedings against President Clinton.

Hastings was impeached for his involvement in a bribery scandal that dated back to 1981.

In court, he was acquitted on criminal charges that he conspired to take a $150,000 pay-off to fix a case.

But a federal appellate court conducted its own investigation and recommended that Hastings be impeached.

Congress found Hastings guilty following a trial in 1989, but the Senate - the body that conducts the impeachment trial - did not vote to disqualify him from holding future federal positions.

What is clear, experts say, is that the Senate has the power to do so.

The Constitution states that impeachment can lead to disqualification from "any Office of honor, Trust, or Profit under the United States."

Over the course of American history, seven judges were impeached in the House and convicted in the Senate. But only two have been banned for life from federal office.

They were: Judge West Humphries of Tennessee, who was convicted in 1862 for pledging support to the Confederacy; and Judge Halsted Ritter of Florida, who was convicted in 1936 for bringing the judiciary into disrepute after he was charged with evading taxes, charging exorbitant fees, showing favoritism to litigants and doing legal work on the side.

No Ban for Hastings
In Hastings' case, no lifetime ban was written into the formal articles of impeachment.

There are different theories why.

Charles Geyh, who served as counsel to the House Judiciary Committee soon after Hastings' impeachment, said it might just be an accident of timing.

He noted that Hastings' case followed close on the heels of the impeachment of Harry Claiborne, a federal judge from Nevada.

Claiborne was the first federal official to be impeached in half a century (following Ritter), meaning there were no recent precedents for lawyers investigating his case.

He was eventually convicted and removed from office in 1986 from under-reporting his income in a case that included allegations of bribery.

Because Claiborne was 68 at the time, Geyh said, congressional prosecutors might have ruled out that he would even seek federal office and probably didn't see the need to disqualify him. (Claiborne committed suicide two years ago at his home in Nevada at age 86 while suffering from Alzheimer's disease.)

"They didn't bother because he was an older guy," said Geyh, who now teaches law at Indiana University.

"The word on the street was that they didn't do that with Hastings because they didn't do it with Claiborne."

Geyh further speculated that there may have been pressure in Congress to ensure that Hastings, who is black, was treated the same as Claiborne, who was white.

Republican Rep. Daniel Lungren, who voted to impeach Hastings before leaving Congress in 1989 and who later served as California's attorney general, has a different take on what happened.

He said the failure to include the disqualification language in the articles of Hastings' impeachment was merely an oversight by members of the House.

"For some reason that paragraph wasn't in there," Lungren said in an interview. "I think it was a mistake."

Rep. John Conyers, D-Mich., was chairman of the House subcommittee that carried out the initial investigation into Hastings' impeachment. Conyers, who is now poised to head the House Judiciary Committee, did not respond to a request for comment last week.

FBI Sting
President Carter appointed Hastings to the bench in 1979, making him the first black federal judge in Florida.

Just two years later, the FBI set up a sting operation after receiving a tip that Hastings was willing to take bribes in return for favorable judgments.

Federal agents posing as fixers told an intermediary, lawyer William Border, that they would pay Hastings $150,000 if he would throw out a forfeiture case involving two brothers.

Borders agreed to the deal and Hastings subsequently dismissed the case.

In a criminal trial, Borders was convicted for his role in the bribery sting, but Hastings was acquitted.

A subsequent investigation by the U.S. 11th Circuit Court of Appeal concluded that Hastings' exoneration came in large part because he had lied on the witness stand.

Hastings has always maintained his innocence.

In 1989, both Pelosi and Conyers voted to impeach Hastings, along with 411 other members of the House.

Only three members voted against impeachment.

The Senate then voted 69-26 to remove Hastings from office after deliberating behind closed doors for seven and a half hours.

Hastings appealed his Senate conviction, arguing that he did not receive a fair trial on the grounds that the whole Senate has to hear the evidence first-hand rather than the committee that was given the task.

A District of Columbia federal judge backed his claim. But his fate was sealed when the U.S. Supreme Court held in a related challenge brought by impeached Judge Walter Nixon that the courts do not have jurisdiction over Senate impeachment deliberations. Nixon v. United States, 506 U.S. 224 (1993).

Ban Might be Moot
Some legal scholars believe Hastings couldn't have been prevented from running for Congress even if lawmakers had taken a hard line on his impeachment.

According to this view, the impeachment clause in the Constitution only allows disqualification from appointed or civil service positions and does not include elected positions.

A case in point is the nation's very first impeachment proceedings, brought against U.S. Sen. William Blount of Tennessee, who was accused in 1797 of colluding with the British after the American Revolution.

The Senate ultimately dropped all charges because members believed Blount was not technically an "officer" of the United States, according to University of North Carolina Law School's Michael J. Gerhardt, author of "The Federal Impeachment Process: A Constitutional and Historical Analysis."

"The Senate dismissed it because ... he was not an officer," Gerhardt said.

That didn't stop some senators from at least discussing taking further action against Hastings after he was elected to Congress in 1992, according to Gerhardt.

Some openly questioned whether they had jurisdiction to return to the disqualification issue to prevent him from serving in Congress, but no formal action was taken.

Hastings was 53 when he made his comeback. Voters have re-elected him seven times, including this month, to his district in the area of Fort Lauderdale, Fla.

Although Hastings has now served for 14 years without controversy, the possibility that he will be named chairman of the intelligence committee has once again raised questions about his integrity.

'Culture of Corruption'
He is an obvious target for conservatives, particularly because the "culture of corruption" in Congress is one of the themes that Democrats used against Republicans this election season.

Judicial Watch, the conservative legal watchdog group, was quick to bring up Hastings' impeachment as grounds for Pelosi to pass him over for the chairmanship.

Tom Fitton, the group's president, said in an interview that the impeachment showed Hastings is "untrustworthy as a public servant."

He conceded that Hastings has served in Congress without any whiff of corruption, but he said the stakes are higher now.

"As chair of the intelligence committee he would be a keeper of national secrets," Fitton said. "This ups the ante."

The chairman of the committee is privvy to classified material that is not generally available to those outside of the intelligence community. Even other members of the committee and staffers are kept in the dark.

Hastings is known as an expert on foreign affairs and has served on the intelligence committee since 1999.

"I've earned my stripes," he told the Washington Post earlier this month.

Hastings' office did not respond to repeated phone calls seeking his recollection of the impeachment and how it bears on his current situation.

Hastings appears to have strong support from the Congressional Black Caucus, whose members say the time is ripe for a minority to run the committee, according to media accounts.

Rep. Melvin Watt, D-N.C., chairman of the Congressional Black Caucus, which is lobbying on Hastings' behalf, declined to comment.

Whether Hastings has broader backing in Washington is unclear.

His hometown newspaper, the Sun-Sentinel of Fort Lauderdale, has come out in his favor, saying in an editorial that Hastings has "handled highly sensitive information without a hint of scandal or incompetence."

The paper went on to add that there is no evidence of "recent infractions that would disqualify Hastings" from chairing the committee.

But veteran Washington Post columnist Ruth Marcus, who covered the impeachment trial, doesn't agree.

"I can't get past the facts of the case, which convince me that Hastings did indeed agree to conspire ... to solicit the bribe," she wrote in a recent column.

For his part, Congressman Lungren, who now represents the Sacramento area, calls Hastings a "nice guy" whom he frequently sees in the Capitol parking lot.

But Lungren said that in light of recent scandals involving members of Congress, committee chairmen should be held to a higher standard.

"The question is: Are we mature enough about the job we have here that we put aside friendship for a higher obligation?" he said.

A spokeswoman for Pelosi, Jennifer Crider, said assignments on the intelligence committee will not be made until January.

She refused to comment on Hastings' impeachment.

Posted 11:54 AM by Howard Bashman

DAILY JOURNAL NEWSWIRE ARTICLE
http://www.dailyjournal.com
© 2006 The Daily Journal Corporation.
All rights reserved.

Posted with permission. This file cannot be downloaded from this page. The Daily Journal's definition of reprint and posting permission does not include the downloading, copying by third parties or any other type of transmission of any posted articles.

November 10, 2006

DEMOCRATS WILL REVISIT MILITARY HABEAS DEBATE
Likely Chair Leahy Objects to Limits on Detainees' Rights

By Lawrence Hurley
Daily Journal Staff Writer
WASHINGTON - An effort to restore habeas corpus rights for enemy combatants could be the first test of the Democrats' resolve to change course in the Senate Judiciary Committee.

Sen. Patrick Leahy of Vermont, who is expected to become chairman, confirmed Thursday that he is drafting a bill to undo portions of a recently passed law that prevent terrorism detainees from going to federal court to challenge the government's right to hold them indefinitely.

Reversing the Damage
Leahy's goal is to "try and do something to reverse the damage," said his spokeswoman, Tracy Schmaler.

Depending how the legislation is worded, it could set up a partisan showdown and even draw a veto from President Bush, according to experts.

It was just last month that Bush, with strong Republican backing in Congress, signed the law that suspends habeas rights for detainees and sets up a new protocol for trying them before military commissions.

Many Democrats opposed the Military Commissions Act largely because of the language that prevents detainees from challenging their confinement. Some also had concerns about the definition of torture in the law, with critics complaining that certain procedures that could be described as torture were not categorically outlawed.

The act is so controversial that civil rights lawyers filed a constitutional challenge immediately after Bush signed it.

'It Was Crazy'
Multiple cases are currently pending before the U.S. Court of Appeals for the D.C. Circuit.

Leahy, who was among the 32 Democrats who voted against the bill, has been the most outspoken critic of the restrictions on habeas corpus.

"It was crazy," he said during an interview broadcast Wednesday on National Public Radio. "After 200 years of habeas corpus, we threw it out after just a few hours of debate."

He has also voiced concern that the bill allows the White House to determine what kinds of coercive interrogation procedures are off-limits.

As the ranking Democrat on the Judiciary Committee, Leahy is set to replace Sen. Arlen Specter, R-Pa., as chairman. Specter also spoke out against the provisions of the detainee bill that stripped habeas corpus rights, but he ultimately voted in favor of the legislation.

Observers say they aren't surprised that Leahy wants to use his new power to reverse course.

"Obviously that's a sentiment shared by many," said Scott L. Silliman, Director of the Center for Law, Ethics & National Security at Duke University School of Law.

He described the habeas corpus section as "the most controversial part of the act" and characterized the debate over its constitutionality as "a close question."

Leahy's hint that he will take quick action won praise from Bill Goodman, legal director of the Center for Constitutional Rights in New York, which brought one of the pending court challenges.

"The court challenge will proceed unless the members of Congress are able to amend the statute," Goodman said.

At issue in the litigation is whether Congress had the power to declare that habeas corpus restrictions first enshrined in the December 2005 Detainee Treatment Act can be applied retroactively to detainees who were picked up following the Sept. 11, 2001, terrorist attacks.

The U.S. Supreme Court ruled earlier this year that the Detainee Treatment Act was not retroactive. Hamdan v. Rumsfeld, 126 S. Ct. 2749.

The law enacted last month allows detainees a limited right of appeal in federal court, but only after a military tribunal convicts them.

Silliman speculated that Leahy could win broad support in Congress if it is narrowly drafted so as to restore habeas rights only for detainees who already have petitions pending in court, but would shut off that avenue for detainees to file habeas petitions in the future.

"There would be a lot of people in agreement with that," Silliman said.

But he cautioned even with control of both chambers of Congress, Democrats will likely face opposition from Republicans who supported the original bill.

Furthermore, experts point out that Bush could veto any law that Congress passes. Silliman said he doubted whether Democrats would be able to garner enough votes to withstand a veto. To do so, they would need a two-thirds majority in both chambers.

Posted 12:00 PM by Howard Bashman

DAILY JOURNAL NEWSWIRE ARTICLE
http://www.dailyjournal.com
© 2006 The Daily Journal Corporation.
All rights reserved.

Posted with permission. This file cannot be downloaded from this page. The Daily Journal's definition of reprint and posting permission does not include the downloading, copying by third parties or any other type of transmission of any posted articles.

November 09, 2006

JUDICIARY PRIORITIES SHIFT LEFT IN CONGRESS
Democratic Chairman Conyers Will Ease Up on Judges and Bear Down on Bush

By Lawrence Hurley
Daily Journal Staff Writer
WASHINGTON - The mid-term election victory for the Democrats Tuesday night drastically alters the landscape in Congress on vital legal issues affecting California.

The House of Representatives, in Democratic hands for the first time in 12 years, will likely play tough with President Bush over terrorism surveillance, but may be more willing than Republicans to reach middle ground on immigration reform, according to political observers.

Republican-led attacks on the judiciary will likely fade into the background, including the threatened impeachment of Los Angeles judge Manuel Real, as will proposals to split the 9th U.S. Court of Appeals into two separate courts.

California may even pick up some new federal judgeships to deal with the state's heavy caseload at both the district and appellate court levels.

But perhaps most significant, with Democrats poised to control the Senate pending a possible recount in a Virginia race, the Bush administration's ability to confirm judicial nominations favored by conservatives is in doubt.

This could be doubly important if there is a Supreme Court vacancy during Bush's last two years in office.

The Democrats are likely to take vastly different positions than Republicans on some other hot-button issues, including tort reform, which they generally oppose; criminal sentencing, on which they may be less strict; and enforcement of antitrust laws, which they are expected to champion.

Lobbyists from the business community in Washington already have voiced concern that a Democratic-controlled Congress could seek to increase plaintiffs' rights.

In both chambers, most of the key legislation affecting the legal community passes through the judiciary committees, meaning the chairmen of those two committees each play a crucial role.

They decide the agenda and wield enormous influence over which pieces of legislation come up for a vote.

In the House, John Conyers of Michigan is in line to be chairman of the committee. The new chairman of the Senate Judiciary Committee - if the Democrats succeed in capturing 51 seats - is likely to be Patrick J. Leahy of Vermont.

Liberal Chairman
Conyers couldn't be more different from the man he is due to replace, hard-line conservative F. James Sensenbrenner Jr., R-Wis.

Known as one of the most liberal members of Congress, Conyers is a strong advocate for civil liberties, abortion rights and other liberal causes.

During his time as the ranking Democrat on the committee, he frequently tangled with Sensenbrenner over what he saw as insufficient oversight of the Bush administration's war on terror.

Conyers and his fellow Democrats held their own hearings and prepared a 270-page report that they claimed showed the manipulation of intelligence information prior to the war in Iraq.

Conyers also sued the president for signing a budget bill that was allegedly different from the measure passed by Congress. Just last week, a Detroit federal judge dismissed the suit.

Conyers initially suggested that there were grounds to impeach Bush, but he has since backed down. He wrote in the Washington Post in May that he would not immediately begin impeachment hearings if he became chairman.

But he promised "comprehensive oversight of these alleged abuses."

Democratic leader Nancy Pelosi of San Francisco, who is poised to become Speaker of the House, said prior to the election that impeachment of Bush was "not on the table" if her party won.

Tabling the 9th Circuit Split
For California lawyers, perhaps the biggest impact of a Democratic-controlled House is that it will once again stall the long debate over splitting the 9th Circuit.

One Washington lobbyist who has followed the issue in recent months said he would be surprised if Conyers even put a 9th Circuit bill on the committee's agenda, even though the Democrats would have the numbers to vote it down.

"It would have to be a mighty big horse trade at the end of a session for Conyers to let this slip through," the lobbyist said.

The federal judiciary could potentially benefit from the change in party control.

Funding for new judgeships has been thwarted in recent years, in part because Sensenbrenner has insisted that a 9th Circuit split must come first.

The U.S. Judicial Conference says California's federal courts need 12 additional judges, including three in the northern district, four in the eastern district, four in the central district, and one in the southern district.

The judiciary also has asked to add seven judges to overburdened 9th Circuit.

Douglas Kmiec, a law professor at Pepperdine University, said he's not so sure Democrats are interested in creating new judgeships for a Republican president to fill.

"President Obama maybe," he said in reference to Sen. Barack Obama, D-Ill., considered a possible contender for the White House in 2008. "But not President Bush."

Inspector General a No-Go
The Republican led-effort to split the 9th Circuit was part of a wider attack on the judiciary by Sensenbrenner and other conservatives, who vowed to rein in wayward judges.

It's a trend that culminated with Real, a district judge in Los Angeles since 1966, facing a formal impeachment investigation earlier this year based on allegations that he improperly tried to help a litigant in his court.

Sensenbrenner also introduced a bill to set up an office of inspector general for the judicial branch, a proposal uniformly opposed by the judicial establishment.

University of Pittsburgh law professor Arthur Hellman, who often testifies before Congress on legal issues, said the inspector general bill will get nowhere in a Democrat-controlled House.

Hellman also predicted the Real investigation would peter out.

Immigration Reform Likely
There may be little for the Bush administration to cheer about with Conyers in charge of the House Judiciary Committee, but there is at least one issue that could lead to bi-partisan agreement: immigration.

The president's much-trumpeted comprehensive immigration reform package stalled in the House under Republican control because the more conservative members, like Sensenbrenner, opposed any attempt to allow illegal immigrants a passage to citizenship.

Democrats are much more amenable to the idea, Kmiec noted.

"That's a place where the president and John Conyers have the beginning of common ground," he said.

President Bush conceded as much Wednesday during his post-election press conference, telling reporters there's now a "good chance" of his legislation passing.

Spotlight on Nominations
Judicial nominations will take center stage in the Senate if the Democrats successfully take control, particularly if there is a vacancy on the Supreme Court in the next two years.

As the ranking Democrat on the Judiciary Committee, Leahy is the odds-on favorite to succeed Republican Arlen Specter of Pennsylvania as chairman.

There is a possibility, though, that Sen. Edward M. Kennedy of Massachusetts, who has seniority over Leahy, could take the role if he chooses to give up the chairmanship of the Health, Education, Labor, and Pensions Committee.

Kennedy and Leahy, who have each served as chairman of the committee before, would adopt a similar approach to nominations, according to experts.

"They would both be tough on Bush nominees," Hellman said.

The White House hasn't had to show much deference to Democratic leaders since the 2002 elections, when the Republicans assumed control, experts note.

The Democratic gains in the Senate also mean all bets are off on the 2005 compromise agreement between 14 moderate senators from both parties that put a halt to Democratic filibusters of the president's nominees.

Pepperdine's Kmiec said he could see "little political incentive for the Democrats to maintain that bargain" now that they - at a minimum - hold 48 seats and can rely on the votes of two independents.

Michael Gephardt, a law professor at the University of North Carolina, suggested that there is likely to be fewer filibusters over judicial nominations, but only after "probing inquiries" of the nominees.

Kmiec said Bush will have to make concessions when picking nominees and he may find that the nomination process slows down considerably.

"I would assume that the committee would be less congenial for the president's nominees, and conservative nominees in particular," he said.

The White House will likely face resistance from Democrats to any nominee they haven't vetted in advance, according to Thomas Mann, a senior scholar at the Washington-based Brookings Institution.

"Bush, like Clinton, would have to reach accommodation on appointments with key members of the other party," he said.

The nominations issue would reach a boiling point if there were a vacancy on the Supreme Court.

Democrats would now have a major role to play, which could force Bush to pick someone with a less conservative record than his two appointees from last year, John G. Roberts Jr. and Samuel A. Alito Jr.

Kmiec said the White House could well turn to a member of the Senate or a state judge because such a nominee would not have a federal judicial record for Democrats to take issue with.

Aside from judicial nominations, a Judiciary Committee under Leahy's control is, like its counterpart in the House, likely to undertake vigorous oversight of some Bush administration actions, including its warrantless wiretapping program.

The American Civil Liberties Union filed suit to halt the program soon after The New York Times revealed its existence in December 2005.

A Detroit federal judge declared the program unconstitutional this summer. The issue is currently before the 6th U.S. Circuit Court of Appeals, which has allowed the White House to continue use of the program while the case is pending.

The Senate, unlike the House, has yet to pass legislation that would endorse the program.

Congress' seal of approval would give the White House extra ammunition with which to defend itself from the ACLU's suit.

Gephardt said if Democrats are in charge, they are much more likely to hold further hearings on the lawfulness of the wiretapping and investigate "what exactly the administration has been doing."