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Forcing Attorney General Holder to “Never Mind” the KSM Trial

It has recently come to my attention that chickenhawk Republicans are threatening to cut off funding to pay for the trial of Khalid Sheik Mohamed slated to be held in New York City. Newsweek’s Mike Isikoff reports:

The chief concern: that Republicans will renew attempts to strip funding for the trial and, in the aftermath of the bombing attempt aboard Northwest Flight 253, pick up enough support from moderate Democrats to prevail. Republican Sen. Lindsey Graham says he will force another vote on his amendment to stop the trial (which was defeated 54-45 in November) once Congress reconvenes. “With Detroit and everything else going on, we’ve got a pretty good chance of winning this thing,” says Graham, adding that he’s privately heard from a number of Democrats, saying “they’re with me.” GOP Rep. Frank Wolf says he plans a similar move in the House. “I’m afraid it’s probably going to pass,” says Democratic Rep. Jim Moran, who has strongly backed the administration on the issue.

Originally, I had planned on writing a screed explaining in, ahem, colorful language why this is monumentally stupid, and I will get to that in a later post, but what woke me up in the middle of the night was a very disturbing insight.

Someone in the Administration took a shiv to the Attorney General over this trial.

Think about it. Holder “informed” the White House that he was going to order the trial to be here.  He didn’t ask, he told. At the time, many old school folks at the Department of Justice would have reason to cheer, or at least heave a sigh of relief because the notion of DOJ prosecutorial independence –- something shredded into non-existence during the Bush-Cheney years -– was being reasserted in a no-muss, no-fuss kind of way.

In an interview with PBS’s Jim Lehrer Holder said:

JIM LEHRER: Did you run it by President Obama?

ERIC HOLDER: Just informed him of the decision.

Holder’s a person who believes that a president’s supposed to behave in a hands-off manner with his Justice Department. He’s a good lawyer. And there are times when I would like to involve him maybe a little more, but his view is that, in those things that are in the province of the attorney general, all the president needs to be is informed.

JIM LEHRER: So, you just told him what your decision was; you didn’t say, “What do you think about it, Mr. President?”

ERIC HOLDER: Nope. Told him last night — or had relayed to him what I was going to do last night while he was on Air Force One on his way to Asia.

So, who in the administration made the decision to make funding for this trial sufficiently stand-alone that Lindsey Graham could identify it to strip it out of a bill? Should it not just be in regular Homeland Security funding or regular DOJ funding? The Graham amendment was to be added to a Commerce/Justice/Science funding bill. Now evidently that bill passed, without Graham’s amendment, and the conference committee was already appointed, shouldn’t it be too late?

Look, this is a direct attack on the prosecutorial independence of DOJ and a direct attack on Holder. The only prosecution decisions the Constitution allows the Senate to make relate to impeachments.

Having made an announcement to the world that this case would be tried in a civilian court in NYC, it would be unbelievably humiliating for Holder to have to issue a “never mind” because he doesn’t have the money for the trial. You know, the resign-in-protest kind of humiliating? What a passive-aggressive backstabbing that would be.

You would think the President would have somebody on his staff — cough Rahm cough — who knows something about how Congress works — cough cough Rahm cough — who would not let an embarrassment like that happen, right? Excuse me while I go and get a throat lozenge.

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Cynthia Kouril

Cynthia Kouril

Cynthia Kouril is a former Special Assistant United States Attorney in the Southern District of New York under several different U.S. Attorneys, former counsel to the Inspector General for the N.Y.C. Department of Environmental Protection where she investigated threats to the New York City water supply and other environmental crimes, as well as public corruption and fraud against the government, former Examining Attorney at the N.Y.C. Department of Investigation and former Capital Construction Counsel at New York City Parks and Recreation.
She is now in private practice with a colleague whom she met while at the USA Attorney's Office. Ms. Kouril is a member of the Steering Committee, National Committeewoman and Regional Coordinator for the New York Democratic Lawyers Council, a member of the Program Committee of the Federal Bar Council and a member of the Election Law Committee at the Association of the Bar of the City of New York. She is active in several other Bar Associations.
Most important of all, she is a soccer mom.