Pat Fitzgerald isn’t the only prominent Bush-appointed U.S. Attorney being asked to stay on in the Obama administration, at least temporarily. Alex Acosta, a Federalist Society member and former acting head of the civil rights division at DOJ, will stay on in Miami for now, the South Florida Sun-Sentinel reports.

Acosta earned accolades for vigorous prosecution of health care fraud and public corruption. He also deployed a rarely used 1994 law to prosecute the son of the former president of Liberia for torture. Chuckie Taylor Jr.’s mistake was to stop over at Miami International Airport, where he was detained. Acosta is a leading candidate for dean of Florida International University’s law school. Read an interview with Acosta here.

The Obama administration has asked all Bush-appointed US Attorneys to stay on until successors are confirmed. It could have, as the Clinton administration did in 1993, asked for blanket resignations and used Assistant US Attorneys to hold down the forts in the 93 federal prosecutor offices  around the country until new leaders were confirmed.

But the National Association of Assistant United States Attorneys asked the Obama administration in a Dec. 16 letter to spare their offices such turmoil, given how much the Bush administration had already rocked their world. The group endorsed keeping the current USAs on the job. “This model is less political, leaves each United States Attorney’s Office in the hands of stable, experienced leadership working under the direction of the Attorney General, and allows for an orderly transition between United States Attorneys,” the letter read. Currently 54 Bush-appointed US Attorneys remain in office, the Miami Herald says, citing DOJ figures.

US Attorney Patrick Fitzgerald, who brought criminal fraud charges against former Illinois Gov. Rod Blagojevich, will stay on with the Obama administration, reports Pete Williams at NBC.  Since all 93 U.S. Attorneys are political appointees, they are usually replaced by the new president when there is a change of political parties in the White House.  The suggestion for Fitzgerald’s retention was made to Attorney General Eric Holder by Sen. Dick Durbin (D-Ill.) and was “well received” according to officials at the Justice Department and Durbin’s office.

Robert Khuzami, a former prosecutor in Manhattan, will be named the Securities and Exchange Commission’s new chief of enforcement, the Wall Street Journal’s Kara Scannell reports today. Khuzami in 1993 helped convict blind Egyptian cleric Omar Abdel Rahman of masterminding an attempt to blow up New York City landmarks. Now he’ll be overseeing the SEC’s civil action against Wall Street trader Bernie Madoff, who has admitted to blowing up investment portfolios around the world in a Ponzi scheme and reached a partial settlement with the SEC Monday. (Separate criminal charges against Madoff are pending).

Khuzami gave $2300 to John McCain’s presidential bid in 2007 and spoke at last year’s Republican National Convention. He was most recently Deutsche Bank’s general counsel for the Americas. He is also a former head of the Securities and Commodities Fraud Task Force in the U.S. Attorney’s office in the Southern District of New York, where he was an AUSA for 11 years.

 

Senate Judiciary Committee Chairman Patrick Leahy  came out for the first time publicly for a “truth commission” to investigate Bush-era constitutional abuses. He joins House Judiciary Committee Chairman John Conyers (D-Mich.) in calling for a formal reckoning. You can watch the Vermont Democrats’ remarks at Georgetown University here on CSPAN.

 

Leahy backed further investigation of the politicized firings of U.S. Attorneys, warrantless wiretapping, torture, treatment of detainees, and even pre-war intelligence procedures leading up to the 2003 invasion of Iraq. He said the commission should have subpoena power, but he didn’t endorse criminal prosecution of any officials involved. “We need to be able to read the page before we turn the page,” Leahy said.

In today’s appeal of Mohamed et al v Jeppesen brought by the American Civil Liberties Union before the Ninth U.S. Court of Appeals, the Obama Justice Department decided to stand behind the Bush administration’s invocation of the state secrets privilege, “with no ambiguity at all,” report Jake Tapper and Ariane de Vogue at ABC News.

The case involves five alleged victims of the extraordinary renditions program during the Bush years. The victims, one of whom (Mohamed) is a current Guantanamo detainee, sued Jeppesen Dataplan (a subsidiary of Boeing) for allegedly flying them to secret CIA camps and other countries where the company knew the detainees would be tortured. The case was thrown out a year ago by a judge who agreed with the Bush administration’s invocation of the state secrets privilege.

ACLU Executive Director Patrick Romero isn’t happy:

[c]andidate Obama ran on a platform that would reform the abuse of state secrets, but President Obama’s Justice Department has disappointingly reneged on that important civil liberties issue. If this is a harbinger of things to come, it will be a long and arduous road to give us back an America we can be proud of again.”

The Obama Justice Department’s defense of the state secrets privilege is not particularly surprising to Marc Ambinder. All of the details regarding how Jeppesen DataPlan helped the government plan the logistics of the extraordinary renditions program are not yet known, and it wouldn’t be a smart move for the Obama administration to come in and change legal strategies without a thorough review of the national security implications, argues Marc Ambinder:

The CIA used Jeppesen’s unit to coordinate the complex travel arrangements that extraordinary rendition implies; which airports would be available when; how to schedule pilots; fuel requirements, etc. Jeppesen would therefore have access to a lot of data that’s not in the public domain, including how many renditions there were, which countries were used as transit points — CIA Black Sites — and which countries were rendition partners, whether they tortured or not. Jeppesen ostensibly has a lot of information about countries to whom the U.S. legally renders suspects. We know a lot about this stuff, but we don’t know everything.

This begs the question: why didn’t the Justice Department seek an extension so that they could conduct a thorough review of the implications? And more importantly, why is any of this reason to use the state secrets privilege to dismiss the case? Why not just let the case continue and use the state secrets privilege selectively to protect those documents that need to be protected.

UPDATE: Eric Holder has ordered a review of all claims of the state secrets privilege. “It’s vital that we protect information that if released could jeopardize national security, but the Justice Department will ensure the privilege is not invoked to hide from the American people information about their government’s actions that they have a right to know,” said Justice Department spokesman Matt Miller.

Secretary of State Hillary Clinton may not be eligible for the position according to Article I, Section 6 of the Constitution:

No Senator or Representative shall, during the time for which he was elected, be appointed to any civil office under the authority of the United States, which shall have been created, or the emoluments whereof shall have been increased during such time

Emolument is defined as “the product (as salary or fees) of an employment.”

During her second term as a member of the Senate, which began on January 3, 2007, the emoluments for the position of Secretary of State were increased by Executive Order 13454 issued on January 4, 2008 and Executive Order 13483 issued on December 18, 2008.  In response, the Senate passed a resolution in early December reducing the salary for Secretary of State from $191,300 to its January 2007 level of 186,600, which is before Clinton started her second term in the Senate.  The resolution has been referred to as a “Saxbe Fix,” a reference to Senator William Saxbe, who faced the same issue when President Nixon appointed him as Attorney General.

A lawsuit filed last week by Foreign Service Officer David Rodearmel argues that, technically, the Senate resolution cannot change the “historical fact” that the salary for the position was raised during Clinton’s Senate term.  This, the lawsuit argues:

harms Plaintiff because it is in direct and unequivocal conflict with the oath Plaintiff took to defend and bear true faith and allegiance to the U.S. Constitution and to faithfully discharge the duties of his office.  

Another argument made in the lawsuit, which has yet to be noted in the media, is that the salary increase for Secretary of State to $186,600 by Executive Order 13420 (passed on December 26, 2006), also occured during Clinton’s second Senate term because the executive order states that the pay raise is

“Effective on the first day of the first applicable pay period beginning on or after January 1, 2007″    

Based on the text of Article I, Section 6, the issue is when the pay increase comes into effect, not when the executive order or legislation was passed.

Obviously, if the lawsuit came down solely to this issue, the Senate would be able to pass another pay cut to comply with the Court’s ruling. 

On the other hand, if the lawsuit goes in favor of Rodearmel on the issue of the “historical fact” that a pay increase occured, Clinton would not be able to serve as Secretary of State until 2013, and Kirsten Gillibrand would still have Clinton’s Senate seat.

Eric Holder won Senate confirmation as Attorney General tonight by a vote of 75 to 21. Here’s the Senate roll call vote:

Former White House advisor Karl Rove will partially comply with the new subpoena (after a three week extension) issued by House Judiciary Committee Chairman John Conyers (D-Mich.) As per a recent post here on Main Justice:

Conyers wants Rove to testify about the prosecution of former Alabama Gov. Don Siegelman, his role in the Bush administration’s firing of U.S. Attorneys and general “politicization� of the Justice Department.

Initial news reports indicated Rove would refuse to appear before the committee based on President’s Bush’s invocation of executive privilege.  As it turns out, the situation is a little more nuanced.  A recent letter summarizing President Bush’s instructions to Rove that he ”should not appear before Congress” only asserts executive privilege on the issue of the U.S. Attorney firings.  The aforementioned quote from the letter has been thrown around all over the media to suggest that Rove will continue to refuse to testify before Congress, but the end of the sentence is left out: “in this matter.”  ”This matter,” was defined previously in the letter as “the subject of the U.S. Attorneys matter.”

Therefore, the letter does not cover the issue of Siegelman’s prosecution, on which Rove apparently will have to testify, and Rove’s lawyer admits it, reports Keith Perine at Congressional Quarterly:

In a Jan. 26 e-mail to the committee, Luskin pointed out that, because Bush had only reasserted executive privilege in the U.S. attorneys matter, Rove was free to answer questions about the Siegelman affair.

Upshot: Rove may end up testifying before the Judiciary about the Siegelman affair, at least, by Feb. 23.