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Thursday, February 26, 2009

Scalia Gets It, How About Obama?

What prompted U.S. Supreme Court Justice Antonin Scalia to voice concerns earlier this week about abusive prosecutions under the federal honest-services fraud statute?

Scott Horton, legal-affairs contributor at Harper's Magazine, suspects Scalia might have gotten a whiff of the foul odor emanating from the outrageous Sue Schmitz case in Alabama.

Schmitz, a Democratic representative in the Alabama Legislature, was convicted earlier this week on charges that she underperformed in her community-relations job with a state program for at-risk youth. The prosecution was driven by Bush-appointed prosecutor Alice Martin, and the conviction ensures that Schmitz will give up her seat in the legislature. This dovetails nicely with announced Alabama Republican Party plans to take over the Democratic-controlled legislature in 2010.

Even Scalia, one of the nation's foremost conservative "thinkers," apparently smells a rat with this one. Writes Horton:

When Justice Antonin Scalia argued for the Supreme Court to visit the legality of the rampant and plainly abusive prosecution of “honest services fraud” cases earlier this week, he posited an example of the utterly preposterous sort of construction that a misbehaving prosecutor might put on the statute. Imagine, he said, a prosecution brought against a government employee for absenteeism. Historically that would be handled under employment law with bad evaluations, fines, and possibly even dismissals. But, Scalia posited, under the ridiculous abuse of the “honest services fraud” statute a prosecutor might actually attempt to charge the absentee employee with criminal fraud.

Was Scalia really just speculating? I don’t think so. I suspect that he had learned about the Sue Schmitz case in Alabama.

We now have indications that an arch-conservative on the nation's highest court has concerns about abusive prosecutions by the Bush Justice Department. But what about our Democratic president?

Barack Obama has been president for a little more than a month, and in that time, two people in Alabama have been convicted in federal cases that dripped of politics.

The convictions of Sue Schmitz and insurance executive John W. Goff indicate that the political prosecutions started under the George W. Bush administration are continuing apace under Obama.

If anything, the ugliness in the U.S. Justice Department has picked up steam since Obama took office. Heck, we've had two innocent people convicted in Alabama--and that's just in February, our shortest month. What do we have to look forward to in March? Four convictions? Six? Eight?

To be sure, Obama barely has gotten his feet wet as president. And God only knows, he and his team have a ton of stuff on their plate. But last time I checked, justice issues were supposed to be kind of important in America. We have a Democrat in the White House, and people's lives are still being ruined by a justice system run amok.

Is anyone in the Obama administration even aware of it? Do they care about it?

Couldn't Obama or Eric Holder--or somebody--at least make a public statement, voicing concern that people are still being prosecuted and convicted simply because they are Democrats or have tried to stand up to corrupt Republicans?

Couldn't Obama or Eric Holder--or somebody--at least state unequivocally that they intend to get to the bottom of corruption in the DOJ and hold the appropriate people accountable?

What has Obama done related to justice issues so far? Not a whole heckuva lot, other than seeking extensions in a lawsuit involving expansive claims of executive privilege by the Bush administration.

Investigative journalist Larisa Alexandrovna, for one, is tired of it. She takes Obama to the woodshed for dithering on matters of justice:

The Constitution guarantees liberties and provides protection for the "people" against tyranny. The abuses of power that have taken place are such heinous violations of those rights and liberties that it boggles the mind that any negotiations are even being considered. Moreover, these abuses were carried out by people who had the trust of the public to act as an honest enforcer of the law, not a as a branch of political police.

Has Mr. Obama failed us? Yes. He has failed the most important task he was given, to defend and protect the Constitution of the United States. Clearly, protecting the Bush administration from prosecution is far more important to this president. This saddens me, but it does not surprise me at all.

Alexandrovna is right on target. And here is a little prediction from your friendly neighborhood Schnauzer. If Obama does not get justice issues right, his presidency will fail. If he does not show a spine of steel--and he had better do it quickly--Republicans will smell blood in the water and will destroy any chance he has of bringing our country out of free fall.

One of Bill Clinton's biggest mistakes was, in the early months of his presidency, letting Republicans off the hook for wrongdoing during the Reagan and George H.W. Bush years.

That mistake nearly brought the Clinton presidency to its knees. And it greatly restricted what Clinton was able to accomplish. Worst of all, it set the stage for the disastrous eight years of George W. Bush.

Obama, like Clinton, appears to be a smart man. But he seems to be heading down the same slippery slope that tripped up Clinton.

And this is not just about Obama. His party's reputation is at stake. If a Democratic president cannot take a firm stand on matters of justice, the party likely will drift toward the precipice of irrelevance.

So, Mr. Obama, Antonin Scalia seems to get it. How about you?

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