Jim Comey To Head FBI: Obama’s Karmic Victory, For Five AUSAs

This is perfect — per the NYT, tonight.
Karma is a wheel, yes?

. . .Mr. Comey, 52, was chosen for the position over the other finalist for the job, Lisa O. Monaco, who has served as the White House’s top counterterrorism adviser since January. By choosing Mr. Comey, a Republican, Mr. Obama made a strong statement about bipartisanship at a time when he faces renewed criticism from Republicans in Congress and has had difficulty confirming some important nominees. . . .

As deputy attorney general in the Bush administration, Mr. Comey was a critical player in 2004 in the dramatic hospital room episode in which the White House counsel, Alberto Gonzales, and Mr. Bush’s chief of staff, Andrew H. Card Jr., tried to persuade Attorney General John Ashcroft — who was ill and disoriented — to reauthorize a warrantless eavesdropping program. . . .
Well done Mr. Obama! [2006 era background here.]

Letter To Cheney (And Bush) Must Be Read. Today.

I’ll simply note that the mistakes that led to these lessons ought not be consigned to the dustin of history.

They were avoidable — and most of all, they were foreseeable.

I am sorry so many had to die to make them plain.

I am sorry Mr. Cheney failed us all. Now go read the letter, in full — but here’s a bit:

. . . .I would not be writing this letter if I had been wounded fighting in Afghanistan against those forces that carried out the attacks of 9/11. Had I been wounded there I would still be miserable because of my physical deterioration and imminent death, but I would at least have the comfort of knowing that my injuries were a consequence of my own decision to defend the country I love.

I would not have to lie in my bed, my body filled with painkillers, my life ebbing away, and deal with the fact that hundreds of thousands of human beings, including children, including myself, were sacrificed by you for little more than the greed of oil companies, for your alliance with the oil sheiks in Saudi Arabia, and your insane visions of empire. . . . .

On the other hand, perhaps we failed one another, by re-electing him.

Here endeth the sermon.

Secret Service Agents Have Qualified Immunity: SCOTUS, In Howards

Here is a pdf of the full opinion (just handed down), but I will quote from Ginsberg’s concurring opinion — as it will be useful in any future such cases:

. . .Thus, the “causal connection [a plaintiff must establish in a retaliatory-prosecution case] is not merely between the retaliatory animus of one person and that person’sown injurious action, but between the retaliatory animusof one person and the action of another.” Hartman, 547 U. S., at 262. This “distinct problem of causation” justified the absence-of-probable-cause requirement we recognized in Hartman. Id., at 263 (Proof of an absence of probable cause to prosecute is needed “to bridge the gap between the non prosecuting government agent’s motive and the prosecutor’s action.”). See also id., at 259 (“[T]he need toprove a chain of causation from animus to injury, with details specific to retaliatory-prosecution cases, . . . provides the strongest justification for the no-probable-cause requirement.” (emphasis added)).

A similar causation problem will not arise in the typical retaliatory-arrest case. Unlike prosecutors, arresting officers are not wholly immune from suit. As a result, a plaintiff can sue the arresting officer directly and need only show that the officer (not some other official) acted with a retaliatory motive. Because, in the usual retaliatory-arrest case, there is no gap to bridge between one government official’s animus and a second government official’s action, Hartman’s no-probable-cause requirement is inapplicable.

Nevertheless, I concur in the Court’s judgment. Officers assigned to protect public officials must make singularly swift, on the spot, decisions whether the safety of the person they are guarding is in jeopardy. . . .

Disappointing — but not unexpected — after hearing the tenacity of the questioning, in favor of the agents, by the majority of the SCOTUS, and hinting that there was — at the time of the incident (2006) no “clearly established right” of which the Secret Service agents should have been aware. . . all of which was seen as likely to doom Mr. Howards’ claim.

This may be the last entry — the likely end of this particular blog.

What If Dick Cheney Received Trayvon Martin’s Heart?

Following up on my thoughts immediately below — I wonder whether Mr. Cheney would feel/experience anything, differently, at some visceral level — a level he couldn’t really put into words — if it were to turn out that his new heart came from an entirely innocent, unarmed and harmless teenager, one who happened to be black in the wrong neighborhood. [Would he be kinder. . . gentler, to the African American nurses doubtlessly tending to him — compassionately, and selflessly — right now?]

In short, what if Mr. Cheney’s new heart. . . came from young Trayvon Martin’s body?

What a novel that would make. Truly, though, recipients not all that infrequently report craving the some of the same foods, and even thinking similar thoughts, to those their donors were reported to have/hold. What a world that would be, now?

Mr. Cheney’s “Change” Of Heart — Insert Your Own Joke Here

Actually. . . please don’t.

First — I won’t joke about this one (and here is how I have genuinely, and consistently, felt about it, in the past). I do wish him continued health. I do want him to see the longer shadows of his legacy — and read, within that Roman light — how history (with more temperance) will ultimately mark him down. I don’t expect it will be gentle — but I do expect he should have to know it, before he goes.

And even so, I cannot help but wonder whether — as many such transplant patients self-report — Mr. Cheney will now begin to feel the echo of his donor’s emotions (and the sort of emotions many transplant patients report feeling), simply for having the DNA and thus the stored chemical memories of another’s emotional experiences, coursing through his blood-stream, and reaching his brain-stem, synapses, and cerebral cortex, some 87,000 times a day, every day, for the rest of his existence here.

Will those chemicals change his perspective at all? That is an interesting, if somewhat unscientific question. We will look for evidence of it, and we hope anyone granted the right to interview him would plumb him for reactions along these lines — it would be a fascinating human interest story.

In any event, unfortunately, from the New York Times article, this morning — even with this very intensive intervention, the longer-term survival statistics, for people over 55 (Mr. Cheney will be 72 this year) undergoing a heart transplant, are not particularly encouraging:

. . .A 2008 study in The Annals of Thoracic Surgery found that outcomes were significantly worse for older patients. For patients over 55, the study found, 63 percent were still alive five years after their transplant, 48 percent survived a decade and 35 percent were living 15 years later. . . .

[And, as to his legacy — in what reads as the Times’ foretelling of how it will deliver his eventual obituary:]

. . .In a government career with few parallels, Mr. Cheney, who was vice president for all eight years of Mr. Bush’s presidency, has been chief of staff to President Gerald R. Ford, represented Wyoming in Congress and served as defense secretary under the first President George Bush. He is widely considered to have been among the most powerful vice presidents in American history. . . advocating an aggressive assertion of presidential power.

He was a lightning rod for critics of the Bush administration, and his influence as vice president during Mr. Bush’s second term was considerably diminished. . . .

We will genuinely wish for his full recovery — but we have been down this very same path with older patients, and know that his odds are lower than 50-50, for a full recovery.

He may well live long enough, however, to read — from a hospital bed, somewhere in Virginia — that his long-time hunting buddy, Justice Scalia, has penned an opinion freeing him from the possibilty of a deposition in the 2006 Beaver Creek, Colorado retaliatory arrest for protected free expression case, captioned as Howards. My bet is that the Supreme Court’s opinion on that matter will be handed down before the end of June 2012. I wonder whether he’ll feel any empathy for Mr. Howards, with his new heart (from an ordinary donor — a part of the 99% — like Mr. Howards), when that day comes. We shall see.

The Best Of David Lane — Mr. Howards’ Lawyer — Sparring With Chief Justice Roberts

The dialogue runs thus, toward the end of the argument, before the Supreme Court — perhaps Mr. Lane’s strongest exchange “the governement here presents us a solution, in search of a problem. . .”:

. . .Mr. Lane: –Well, what I say about that is that — and again, I know this is not an answer that you are probably going to like, because this means a trial is involved, but this is what juries do on a daily basis throughout this country, in every criminal case.

What is the subjective intent of the defendant?

In every civil case, is this an intentional act, a knowing act, a reckless act, a negligent act?

That’s what juries do.

And if there is enough evidence to get this case to trial — and I — I would posit it that in this case, where you have agent after agent after agent who saw the encounter up close and personal with the Vice President and Mr. Howards, none of whom saw any evidence of any criminal activity by Mr. Howards, all of whom let Mr. Howards walk away from the scene, that’s good evidence that–

Chief Justice John G. Roberts: One reason that I in fact don’t like the answer is be — because what the agent is now going to have to factor, in addition to the hostility of the — the views, the touching of the Vice President, the lying about it, the wandering around with the bag — is in the back of his mind — you know, if I’m wrong, I may be held personally liable in damages for taking some action that some jury somewhere is going to say is based on retaliation rather than my obligation to protect the Vice President.

Mr. Lane: –Well, I mean, theoretically yes, that — that could be a problem.

And — and I am quite certain that certain civil litigants, just as in criminal cases, people are wrongly accused of things that they didn’t do, they end up in a trial, and sometimes juries get the wrong results and an injustice occurs.

We can’t fix all those problems when it’s not really a significant problem.

There are no run on the courtrooms around the land of these kinds of cases arising.

We don’t need to have any rules that specifically pertain to the Secret Service when to my knowledge, this Court has had one Secret Service case in its entire history, and there are 15 appellate-reported Federal decisions regarding retaliatory arrests, period. . .

Now we wait for an opinion. Sadly, I think it comes out 6 to 2 (Justice Kagan recused; prior involvement in the case as a government lawyer) that there is no cognizable claim here, under the first amendment, even with Mr. Lane’s skillful advocacy.

Listen To Howards’ Supreme Court Oral Argument, Now — as an .mp3 Stream

Here is the argument transcript page, and the downloadable mp3 audio-stream, itself, from Chicago-Kent College of Law. This is nearly a month earlier than the Court’s usual website releases, itself. [Cite this stream as: The Oyez Project at IIT Chicago-Kent College of Law. 23 March 2012.]

Sadly for Mr. Howards, my personal take is that there aren’t five votes to send the case to trial on the merits. Which means there likely aren’t five votes to depose Mr. Cheney about his orders, and whether he felt threatened by Mr. Howards that day in 2006 in Pitkin County, Colorado.

There are probably five votes saying we should not force Secret Service agents to make instant decisions as to whether Mr. Cheney’s orders were intended to protect the office, or punish a speaker for his point of view. I am not sure that five votes feel that probable cause allowed everything that followed — as the government’s lawyers urged.