It has been a while since I posted anything, but the time has come to reinstate that old writing habit.

It has been a loooong time since I posted anything. I got up in the election fever of 2008 and had hoped for quite a bit more change than we got. While I have been pleased with Mr. Obama's foreign policy overall his domestic policies have been disappointing. The first clue that the economy was not going to handled well was when he did not include a single economist that had predicted the meltdown but instead filled the posts with folks that had helped it occur. That may still sink him if he cannot get the economy to turn around and of course for the Republicans, they do not want to turn the economy around since their friends (the Koch brothers come to mind) are doing just fine. Between the oligarchy's money and the general public's discontent, they make still get significant majorities so that they can dismantle everything leaving everyman for himself, everyone else be damned.

One of my favorite music videos on tube is Weezer's Pork and Beans. It is full of references in the world of youtube. All of these videos have been seen at least over a million times. Here is a list for you enjoy:

It starts immediately with One Man Band.

Chocolate Rain by Tay Zonday

Numa Numa - fun watching this frumpy guy get completely into it.

Dramatic Prairie dog. There is the 5 sec version most people of have seen and the original 40 some second context - both of which are in the Weezer video.

Ninja try-outs completely hysterical. The afro ninja is who is featured in the Weezer video.

I think that the star wars kid must be related to the wandabe ninjas above. Here is the original version which is also funny.

Some animation: GI Joe Gay. Too funny but it a stereotyped way. And this one based on a Sega game, All Your Base Are Belong To Us - The bad translation is what gives it entertainment value.

Then there is the hysterical (not in a funny way - then again it is so exaggerated it is funny) about a guy who rants "LEAVE BRITTANY ALONE!" After 45 seconds into this video you get the idea. It has been viewed some 7 million times.

And speaking of Brittany - Kevin Federline makes an appearance talking about Brazilian music - Popozao. I thought this was obscure and it is because it is only video in the group that has been viewed less than a million times.

If you have not seen the most fantastic blenders in the world, you are missing out on "Will it Blend?" Anything from light bulbs, to iphones, to glowsticks, to cds, ecetera.

Then there is the Guiness World Record for most T-Shirts worn at one time - 155 of them, 100 pounds set to soaring music.

The Evolution of Dance has got to be one of the most popular videos on the web. It has been viewed some 94 million times.

Harder, Better, Faster, Stronger: Daft Hands (seen over 20 millions times) - which inspired Daft Dancers (over 5 million).

Crank That Soldier Boy! Three white boys in oversized cargo shorts dancing

Then there is the Miss Carolina for Teen USA pageant who flubbed an answer so badly it was incredible. (seen over 27 million times). Got to give her credit for her good grace and humor.

Just one word: SHOES!
(parental warning - there are some f-bombs. Kelly is foul mouthed and has anger issues)

Then there is all those Mentos experiments.Fun!

The most annoying song of all time - at least in my opinion. It's Peanut Butter Jelly Time!!!

Charlie, the cynical unicorn makes an appearance. Shun the unbeliever of Candy Mountain.

Then there is Kicesie - Question and Answer regarding what is the best sex ever.

I think that the flying spaceship refers to this video of purported UFO seen in Haiti.

If you look carefully there is the mother panda and her cub featured in this video.

I think that the pile of rubik's cubes refers to this solution video by Dan Brown.

The laser saber fight going on behind the band is Ryan vs. Dorkman - a beautifully done fight.

Lastly the trio of computer animation of dancing Donald Duck, gorilla, and what I believe to be an alien. This was the only one that I could not find.

I am sure that I missed some. There are so many references and so little time.

MONICA GOODLING MUST APPEAR AND TESTIFY

Representative Conyers, the Chairman of the House Judiciary Committee's Subcommittee on Commercial and Administrative Lawhas send this excellent letter to Ms. Goodling's attorney demanding that she appear before the committee. Mr. Conyers and Ms. Sanchez are absolutely correct about the need to testify and underlying grounds required for a person to use the Fifth Amendment as a shield.

Dear Mr. Dowd:

We are in receipt of your letter of March 30, 2007, requesting that we communicate with you, rather than the Department of Justice, regarding the House Judiciary Committee's interest in questioning your client, Monica Goodling, Esq.

On behalf of the House Judiciary Committee's Subcommittee on Commercial and Administrative Law, we write to request that your client, Ms. Goodling, voluntarily appear to be interviewed by our staff in the next week and to discuss the justification for her apparent decision to invoke her Fifth Amendment privilege to questions relating to her role in the termination of several United States Attorneys and the Department's response to requests by the Congress for information relating to the terminations.

We have reviewed Ms. Goodling's declaration and the letters you sent to us and Senator Leahy, Chairman of the Senate Judiciary Committee, and we are concerned that several of the asserted grounds for refusing to testify do not satisfy the well-established bases for a proper invocation of the Fifth Amendment against self- incrimination. In addition, of course, the Fifth Amendment privilege, under long-standing Supreme Court precedents, does not provide a reason to fail to appear to testify; the privilege must be invoked by the witness on a question-by-question basis.

The interview we seek could obviate the need to subpoena Ms. Goodling and require her to appear at a public hearing and require her to invoke the privilege to specific questions. We believe that such a proceeding, consistent with the Constitution and Supreme Court precedents, would permit the public to see and hear the specific questions to which Ms. Goodling is asserting the Fifth Amendment privilege against self-incrimination and to permit the Congress and the public to draw appropriate inferences from her invocation of the privilege and the Department of Justice's failure to insist that she waive the privilege. See Baxter v. Palmigiano, 425 U.S. 308 (1976); Brinks, Inc. v. City of New York, 71 7 F.3d 700 (2d Cir. 1983); United States v. District Council of New York City, 832 F. Supp. 644 (S.D.N.Y. 1993) [where the court upheld the position of the Department of Justice that adverse inferences should be drawn in a civil case against an employer for the invocation by its employee of his Fifth Amendment privilege]. Most of the assertions in your letters to Sen. Leahy and in Ms. Goodling's declaration do not constitute a valid basis for invoking the privilege against self-incrimination.

The fact that a few Senators and Members of the House have expressed publicly their doubts about the credibility of the Attorney General and the Deputy Attorney General in their representations to Congress about the U.S. Attorneys' termination does not in any way excuse your client from answering questions honestly and to the best of her ability. Of course, we expect (as we are sure you do) your client to tell the truth in any interview or testimony. The alleged concern that she may be prosecuted for perjury by the Department of Justice for fully truthful testimony is not only an unjustified basis for invoking the privilege and without reasonable foundation in this case but also so far as we know an unwarranted aspersion against her employer.

Even with full Court-ordered immunity, a witness is required, under penalty of perjury, to tell the full truth. As we are sure the Department of Justice, in particular, would agree, it would be extremely poor public policy if a witness were permitted to be excused from testifying simply on the basis of her concern that truthful testimony would not be credited by responsible prosecutors and that she could be subject to an unwarranted perjury prosecution. Neither the Department nor the Congress could operate properly if witnesses were free to disregard their duty to provide truthful testimony on this basis. In any event, it is particularly inappropriate in this situation, where the Congress makes no prosecutorial decisions and any decision to prosecute would have to be made by the Department of Justice, which employs your client.

The references in your letters to Mr. Libby and Mr. Safavian are particularly unwarranted and inappropriate. Both of those individuals, former high-ranking officials in the Bush Administration, were found guilty beyond a reasonable doubt by juries of their peers, in cases brought by Presidentially appointed U.S. Attorneys, of knowingly and intentionally lying or providing false information primarily to Executive branch agents or officials. Neither matter involved truthful testimony by the defendants. Both of them were found to have deliberately misrepresented facts, which we are confident you do not expect Ms. Goodling to do. If her testimony is truthful, she will have nothing to worry about in terms of a perjury prosecution, which, of course, rests in the exclusive control of the Department.

Based in part on what we believe are inappropriate considerations for the invocation of the Fifth Amendment, we seek an opportunity to have the staff question Ms. Goodling, in your presence, in order to make a determination of whether there is any valid basis for her to invoke the privilege in response to specific questions. We note that Mr. Kyle Sampson, the Attorney General's former chief of staff who worked closely with Ms. Goodling on these matters, advised the Senate recently under oath that he knew of no valid basis for her assertion. If there is no valid basis, we will want to afford her an opportunity (as several other Department employees have agreed to take) to answer in a straight-forward fashion in a private, confidential setting all questions relating to her knowledge about the firings of the U.S. Attorneys, the role in these terminations of the White House with which she served as liaison and the Department's explanation about these matters to the Congress.

We look forward to your prompt reply so that we can make the necessary arrangements for the early interview we request, or if there is no agreed interview, to consider the follow-up steps the Committee should take. Thank you for your consideration.

Sincerely,

JOHN CONYERS, JR. LINDA T. SÁNCHEZ
Chairman Chairwoman, Subcommittee on Commercial and Administrative Law

DON'T HAVE ANY EXPERIENCE? NO PROBLEM!

There is a tendency by the Bush administration to put people without any experience in key positions (Brownie anyone?) Experience? We don't need any stinking experience! What we want is ideology!

Apparently the only qualifications needed to rise to a high level in the Bush administration is being a true believer by which I mean early indoctrination into The Party early before the real world can interfer and show that 1) you really know nothing about how the world works, and 2) not everything you have learned is true. As we well know Reality has a liberal bias. Actual competence is not necessary. Should one of these unqualifed and inexperienced individuals make a monumental error, a Medal of Freedom will be bestowed.

There are not one but two examples in the thick of the U.S. Attorney Purge: Monica Goodling and Kyle Sampson. Both had less than ten years experience before they were put in positions of power.


Monica Goodling graduated in 1999 from a low ranked law school called Regent University "Christian Leadership to Change the World" after attending Messiah College. How can such an individual get appointed to the high level and profile job of Department of Justice Spokesperson in the first place? A spokesperson for a cabinet level agency needs to have extensive experience in dealing with the public and the media. This position also requires experience in the actual practice of law so that the events occuring within the Department of Justice can be communicated effectively to the public. Ms. Goodling has neither.



Then there Kyle Sampson. Here is an excerpt from today's Washington Post. I believe the article was meant to be flattering.

Sampson coveted the U.S. attorney's job in Salt Lake City and twice approached the man who still had the job, Paul Warner -- now a federal magistrate -- to ask him when he'd be stepping down. The first occurred in a conference room in Utah, Warner said, and the second took place during a lunch in Washington on Pennsylvania Avenue.

Though they shared the same home state, Warner and Sampson followed different public service narratives. A former JAG attorney, Warner had spent 17 years in various capacities in the U.S. attorney's office, saying it "was where I wanted to be, not where I wanted to be from."

In speaking to the eager Sampson, Warner asked him to slow his motor.

"I let him know he would be helped with practical experience as a prosecutor," Warner said. "I told him he should spend some time as an assistant U.S. attorney. If you're going to be chief surgeon, it's nice to do some surgery."

CAN WHITE HOUSE ADVISERS BE MADE TO TESTIFY BEFORE CONGRESS?

I just read the Congressional Research Service's report of April 14, 2004 concerning Presidential Advisers' Testimony Before Congressional Committees. Here is my take:
Both Carter and Bush have raised the separation of powers arguments in refusing to allow one of their advisers to testify. However, Congress does have a constitutionally rooted right to access information it needs to fulfill its Article I legislative and oversight functions. McGrain v. Daugherty, 273 U.S. 135, 177, 181-82 (1927), Watkins v. United States, 354 178, 200 note 33 (1957).

Another reason raised by Presidents has been executive privilege, which Bush, as his predecessor Richard M. Nixon raised. While the Supreme Court has found that a constitutional basis for executive privilege, it is not absolute for the president's need for confidentiality must be balanced with need for materials for the other branch of government to fulfill its constitutional duty. United States v. Nixon, 418 U.S. 683, 708, (1974). The a case that did involve a senatorial subpoena , a court found that presumption that the public interest favor confidentiality in presidential communications can be defeated only by a strong showing of need by another institution of government. Senate Select Committee on Presidential Campaign Activities v. Nixon, 498 F.2d 725, 730 (D.C. Cir. 1974).

Executive privilege has two components. One is communications privilege and the other is deliberative process privilege. In my research at the Oregon DOJ, I found the state had very similar distinctions for government officials and agencies. The communications privilege is based on the constitutional separation of powers for it relates to direct decisionmaking by the President. The deliberative process privilege is based on common law and is applicable to decisionmaking of executive officials generally. In Re Sealed Case (Espy), 212 F.3d 729 (D.C. Cir. 1997). As neither of these privileges are absolute, court must balance the public interest involved and assess the need of the party seeking the information.

The likely outcome is that advisers, whose sole purpose is to is to advise the President, will not be forced to testify. This would include Karl Rove and likely Harriet Miers. Other officials who have operational duties such Albert Gonzales, can certainly be made to testify though not necessarily about their advisory duties. Now, here is the problem for the White House, Rove and Miers by interjecting themselves into the function of the Justice Department, so they should be compelled to testify as to their actions regarding the purge of the U.S. Attorneys. Not only that but apparently, they were using e-mail accounts at the Republican Party's headquarters. The use of those e-mail accounts clearly put them outside their advisory role to the President. Additionally, the use of those e-mail accounts for official White House Business violates the Presidential Records Act. According to the National Journal, about 95% of Karl Rove's email traffic has been on the Republican National Committee email accounts.


However, the courts, have historically been reluctant to involve themselves in separation of powers issues. (We will ignore the aberration of Bush v. Gore). Considering that and especially the current bench which is filled with Bush appointees it is a near certainty that the judicial branch will refuse to intervene. Impeachment may be the only effective remedy for the Senate to bring this administrations action to the light of day.

UNITED STATES ATTORNEY PURGE

YES, IT WAS ILLEGAL

Some people are arguing that Alberto Gonzales and the White House staff did not actually break any laws when dismissing the eight U.S. Attorneys. While it is true that that the attorneys serve "at the pleasure of the president," the oath of office that these men and women take is to the U.S. Constitution, not to the president himself. (Article VI . . . all executive and judicial Officers, . . . shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.) The required independence of prosecutors so that they can unbiasedly pursue cases for the good of their communities is a necessity, not a luxury. Nonetheless, Alberto Gonzales, White House and Justice Officials and even members of Congress and others involved in the attorney purge may have in fact violated 18 U.S.C. §§ 1501-1520, the federal obstruction of justice statute. Adam Cohen specifies what violations may have occurred.

Some crimes that a special prosecutor might one day look at:

1. Misrepresentations to Congress. The relevant provision, 18 U.S.C. § 1505, is very broad. It is illegal to lie to Congress, and also to “impede” it in getting information. Deputy Attorney General Paul McNulty indicated to Congress that the White House’s involvement in firing the United States attorneys was minimal, something that Justice Department e-mail messages suggest to be untrue.

Attorney General Alberto Gonzales made his own dubious assertion to Congress: “I would never, ever make a change in a United States attorney position for political reasons.”

The administration appears to be trying to place all of the blame on Mr. Gonzales’s chief of staff, Kyle Sampson, who resigned after reportedly failing to inform top Justice Department officials about the White House’s role in the firings. If Mr. Sampson withheld the information from Mr. McNulty, who then misled Congress, Mr. Sampson may have violated § 1505.

But Mr. Sampson’s lawyer now says other top Justice Department officials knew of the White House’s role. Senator Charles Schumer, Democrat of New York, said last week that “Kyle Sampson will not be the next Scooter Libby, the next fall guy.” Congress will be looking for evidence that Mr. Gonzales and Mr. McNulty knew that what they told Congress was false or misleading.
Convictions of this kind are not common, but they happen. Just ask former White House aide David Safavian, who was convicted last year of making false statements to a Senate committee.

2. Calling the Prosecutors. As part of the Sarbanes-Oxley reforms, Congress passed an extremely broad obstruction of justice provision, 18 U.S.C. § 1512 (c), which applies to anyone who corruptly “obstructs, influences, or impedes any official proceeding, or attempts to do so,” including U.S. attorney investigations.
David Iglesias, the New Mexico United States attorney, says Senator Pete Domenici, Republican of New Mexico, called him and asked whether he intended to bring indictments in a corruption case against Democrats before last November’s election. Mr. Iglesias said he “felt pressured” by the call. If members of Congress try to get a United States attorney to indict people he wasn’t certain he wanted to indict, or try to affect the timing of an indictment, they may be violating the law.

3. Witness Tampering. 18 U.S.C. § 1512 (b) makes it illegal to intimidate Congressional witnesses. Michael Elston, Mr. McNulty’s chief of staff, contacted one of the fired attorneys, H. E. Cummins, and suggested, according to Mr. Cummins, that if he kept speaking out, there would be retaliation. Mr. Cummins took the call as a threat, and sent an e-mail message to other fired prosecutors warning them of it. Several of them told Congress that if Mr. Elston had placed a similar call to one of their witnesses in a criminal case, they would have opened an investigation of it.

4. Firing the Attorneys. United States attorneys can be fired whenever a president wants, but not, as § 1512 (c) puts it, to corruptly obstruct, influence, or impede an official proceeding.

Let’s take the case of Carol Lam, United States attorney in San Diego. The day the news broke that Ms. Lam, who had already put one Republican congressman in jail, was investigating a second one, Mr. Sampson wrote an e-mail message referring to the “real problem we have right now with Carol Lam.” He said it made him think that it was time to start looking for a replacement. Congress has also started investigating the removal of Fred Black, the United States attorney in Guam, who was replaced when he began investigating the Republican lobbyist Jack Abramoff. Anyone involved in firing a United States attorney to obstruct or influence an official proceeding could have broken the law even the President. No one is the above the law. Should that we so, we are not a democracy ruled by, for and of the people.