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Update:  a few (only a 1/2 dozen+/-) Commentors have taken strenuous issue with me and seem obsessed on what they see as the temerity of this entire Diary.  Such is life.  I've "updated" the Title to make it a little more "food for thought-ish"; no "Clarion Call".  The eyes do roll.

 News reports indicate to me that certain Members of the Senate Judiciary Committee could be said to have violated Federal Corruption Statutes, subjecting them to indictment and conviction.  The following sets forth the nature of what I argue are illegal acts, with applicable Federal Law.

 Credit Daily Kos diarist "SmileySam" for bringing this to my and others' attention through this diary.  

 To me it appears that Sen Cornyn of Texas and Sen Specter of Pennsylvania are walking dangerously close to (crossed?) the line of felonious acts relating to the confirmation process of Attorney General Nominee Eric Holder.  

 A grossly simplified case for prosecution below, without benefit of caselaw.


Before going further, here's a crash-course in how cases are made, either criminal or civil:

1.  State the facts-as-known;

2.  State the law;

3.  Apply the law to the facts.


  The Facts

 The aforementioned dairy refers and links to a page from Rhode Island Senator Sheldon Whitehouse's official website which contains what appears to be an unsourced press clipping from January 23.  The lines worth focusing on are these, apparently quoting Senator Whitehouse:

 "Republicans on the Judiciary Committee have asked Eric Holder to make a commitment, before he is even confirmed, that he will not prosecute any Bush Administration officials for their involvement in acts of torture during the last administration."

 Without much trouble or research time I was able to find this closer-to-primary-source information/admissions:


 "Led by the ranking Republican on the committee, Sen. Arlen Specter (Pa.), GOP lawmakers also said they had more questions for Holder about whether he would favor prosecuting Bush administration officials for their involvement in warrantless wiretapping and harsh detainee interrogation practices.  [Texas Senator John] Cornyn said he would press for Holder to take a stand on the Military Commissions Act, which the Texas Republican described as providing interrogators with immunity from prosecution if they believed they were acting legally."

 The Washington Post
 Shailagh Murray and Carrie Johnson
 January 22, 2009


"Sen. [Patrick] Leahy said that Holder can't predetermine who he'll prosecute.

"'I think no prosecutor should say, "This is who I will prosecute and this is who I won't prosecute," and he knows that as a former prosecutor,' said Leahy of Cornyn's demand."

 The Huffington Post
 Ryan Grim
 January 21, 2009


 South Carolina Senator Lindsey Graham, in addition to making gratuitous slaps at what he characterizes as "the hard left" (I take it to mean those who seek to have people held accountable for any crimes they've committed(1)), said this of those who seem to be making a quid pro quo(2) demand of Attorney General Designate Holder:


"'Making a commitment that we'll never prosecute someone is probably not the right way to proceed, either,' [Graham] said. 'I think President Obama's administration is going to have a forward look on this, unless there's something egregious out there I think they'll move on. But no I don't expect him to rule it in or rule it out.'"

 Also from above-linked Huffington Post article.

 It appears, then, that Republican Senator Graham understands Senators Cornyn's and Specter's statements to mean that they will hold-up, delay, vote against and/or otherwise do what they can to prevent Mr. Holder from taking office as the next Attorney General unless he pledges to not prosecute persons under the Laws of the United States.  Of course, the (inverse) corollary to that is that Senator Cornyn and Specter will agree to back and support Mr. Holder and his nomination/confirmation if he agrees to abstain from investigating and/or prosecuting possible crimes.

 An additional note:  "immunity" from prosecution (or liability in a civil case) is, indeed, a defense.  Such defense may be raised and argued by the defendant in a criminal or civil case.  It is up to the Court to decide on a case-by-case basis whether an immunity defense applies.  It is not for the prosecutor to say, "Well, the defendant may plead immunity as a defense to an act of malfeasance, so I suppose I'll just not bother bringing the case."

The Law

 Title 18 of the United States Code Sections 201-226:  BRIBERY, GRAFT, AND CONFLICTS OF INTEREST(3)

 18 U.S.C. §201(a)


     (2) the term "person who has been selected to be a public       official" means any person who has been nominated or appointed to       be a public official, or has been officially informed that such       person will be so nominated or appointed.


 18 U.S.C. §201(b)


     Whoever -

       (1) directly or indirectly, corruptly gives, offers or promises anything of value to any . . . person who has been selected to be a public official, or offers or promises any . . . person who has been selected to be a public official give anything of value to any other person . . . with intent -
         (A) to influence any official act; or . . .
         (C) to induce such public official or such person who has
       been selected to be a public official to do or omit to do any
       act in violation of the lawful duty of such official or person;

      (2) being a public official . . .directly or indirectly, corruptly demands, seeks, receives, accepts, or agrees to receive or accept anything of value personally or for any other person or entity, in return for:
         (A) being influenced in the performance of any official act; or . . .

         (C) being induced to do or omit to do any act in violation of
             the official duty of such official or person;


       (4)shall be . . . imprisoned for not more than fifteen years . . . and may be disqualified from holding any office of honor, trust,      or profit under the United States.


    §210. Offer to procure appointive public office


Whoever . . . offers or promises any money or thing of value. . . to any person . . . in consideration of  . . . promise to use any influence to procure any appointive office or place under the United States for any person, shall be fined under this title or imprisoned not more than one year, or both.


Applying the Law to the Facts

 It appears to me that Senator Arlen Specter and Senator John Cornyn have directly -- most assuredly indirectly -- offered or promised Eric Holder their support for (and/or ceasing their opposition to) his confirmation to the Office of U.S. Attorney General in an attempt to influence Mr. Holder to refrain from carrying out what would be his official acts and duties as Attorney General(4).


 I believe it is the Responsibility of the American Press (and their respective constituencies, and the American citizenry-at-large) to ask directly -- and relentlessly, if necessary -- Senators Specter and Cornyn whether:

  1.  they are trying to influence or induce Attorney General Designate Holder to do or omit doing an official act/duty should he become Attorney General.  

  2.  they are offering or promising to support, or at least offering or promising to withdraw their opposition to, Mr. Holder's nomination in exchange for his pledging to omit doing what he would otherwise consider an official act/duty as Attorney General.  

 I believe that these questions have already been answered and warrant an investigation of at least these two Senators, but going ahead and confronting them, "point blank", with these questions will either seal the deal, or have Senators Specter and Cornyn backpeddling as they each "lawyer-up" for the investigations, and perhaps indictments, that I believe are warranted.


UPDATE: Commentor "sjbog" suggests Eric Holder be ready with this, at the appropriate time.  Not bad.


"I cannot in good conscience acquiesce to the suggestions of Senators Cornyn and Spector to promise, without already having studied such cases as may be brought before me in the future as part of the normal process of following the the laws and executing the due process procedures of the United States, not to prosecute officials who may or may not have committed crimes during the last eight years while serving in their official capacity as members of the executive branch.

   "To do so in return for a vote to confirm my nomination to be Attorney General would constitute the acceptance of a bribe and it would would further implicate Senators Cornyn and Spector to have offered or conspired to offer such a bribe."

UPDATE 2: Just contemplate this as you see fit.  Apply it to this Diary, or not, as you see fit.  John Cornyn in one of his debates with Rick Noriega opining on why he believes no investigations should go forward re:  the matter of political chicanery in the Justice Department during Gonzales' tenure there:

Money quote:  "I don't think it's appropriate as the former Attorney General of this state to have politics mixed up with the investigation and prosecution of crime."


 (1)  Crimes involving or related to torture.

 (2)  Simply:  "this for that".  I will do this for you if you will do that for me.

 (3)  All emphasis mine.

 (4)  "The Judiciary Act of 1789 created the Office of the Attorney General which evolved over the years into the head of the Department of Justice and chief law enforcement officer of the Federal Government.  The Attorney General represents the United States in legal matters generally and gives advice and opinions to the President and to the heads of the executive departments of the Government when so requested."  Source:  U.S. Department of Justice Website

Originally posted to BenGoshi on Sat Jan 24, 2009 at 06:34 AM PST.

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