Monday, January 10, 2011

In the Pursuit of Justice

There's been a lot of media coverage of the horrific shooting in Arizona this weekend, so I'm not going to duplicate what's already out there. However, I wanted to help explain what the next steps will be in bringing Jared Loughner, the individual currently in custody for shooting Congresswoman Gabby Giffords in Arizona over the weekend, to justice.

Right now, Loughner is charged in federal court with five counts against him - two counts of murder and three counts of attempted murder, all of federal employees. The federal employees attending Congresswoman Giffords' "Congress on your Corner" gathering at a local Safeway included members of her staff and a federal judge, Chief Judge John Roll of the United States District Court for Arizona. While the attempted murder of a member of Congress is a very serious crime, it is the killing of a federal judge and the killing of a Congressional staffer that makes Loughner eligible for the death penalty (under 18 U.S.C., section 1114).

Loughner can also be charged by Arizona for state crimes. (This has not happened yet). State prosecution of Mr. Loughner would not be considered double jeopardy because, even though the incident giving rise to the criminal violations is the same, the crimes alleged are different. To give a simple explanation: an individual can be charged in federal court for transporting an unlicensed firearm across state lines (a federal crime), and then can be charged in state court for using that weapon in an armed robbery (a state crime). In this case, the federal indictment does not include charges against Mr. Loughner for the killing of nine-year old Christina Green and three other victims who were not federal employees.

Two reasons Arizona might choose to prosecute Mr. Loughner are (1) to make the statement that criminals who engage in acts of violence against citizens of the state will be prosecuted to the fullest extent of the law, and (2) to impose a different, i.e., harsher, sentence than has been imposed against Mr. Loughner in federal court. If Mr. Loughner is convicted in federal court but does not receive the death penalty, Arizona could choose to prosecute him if it wanted to seek the death penalty against him. Arizona could also choose to prosecute Loughner even if he does receive the death penalty in federal court in order to expedite the execution of the death sentence or to make doubly sure that the death sentence will stand up on appeal.

Given the seriousness of the charges against Mr. Loughner, the federal public defender's office in Arizona has lined up Judy Clarke, a very experienced and high-profile public defender to represent him. Clarke has represented other very notable clients, including the Unabomber and Zacarias Moussaoui, the Al Queda operative charged with conspiracy related to the September 11 attacks. Both of these clients were convicted but managed to avoid capital punishment. Clarke's appointment to this case can be interpreted as a sign that the focus of any trial against Mr. Loughner will not be on the extent of his culpability, but rather on the nature of the punishment he receives.

Lastly, while all of the evidence against Mr. Loughner is not currently available to the public as the investigation is still underway, the few details that have been leaked in the media suggest that Mr. Loughner will have a difficult time invoking an insanity defense. Under federal law, a defendant can employ an insanity defense when, "as a result of a severe mental disease or defect," the defendant was "unable to appreciate the nature and quality or the wrongfulness of his acts." There's not much doubt that Mr. Lughner suffered from some kind of mental disease . However, if the press reports indicating that Mr. Loughner prepared extensively for the commission of the crime and that he fully intended to target Congresswoman Giffords are indeed true, Loughner will have a hard time contending that he did not appreciate the nature and quality of the wrongfulness of his alleged crimes.

Wednesday, January 05, 2011

Presidential Prognostication

Happy New Year and let the games begin!

Today marks the swearing in of the 112th Congress, and the 2012 presidential elections are sure to influence the legislative wrangling that’s about to take place. Plus, it’s never too early to start prognosticating about the next round of elections. So, here's my list of the Top 12 for 2012, the individuals who are likely throw their hat into the ring to try to win the GOP nod to face President Obama in the general election in 2012, from the obvious choices to some dark horse candidates.

1) Sarah Palin – I don’t need to say a lot about Palin except that when someone walks like a presidential candidate, talks like a presidential candidate, visits Iowa and, on top of everything else, has her own reality show about Alaska, she’s most likely going to run for President. That being said, Palin has never been one to go with the grain (Exhibit 1: her decision to step down as governor of Alaska in 2009), and there are some legitimate arguments in favor of her waiting to run in 2016, assuming Obama wins a second term. For instance, she could establish a wider base, continue making loads of cash and then not have a pesky incumbent to deal with in the general election. If I were a betting man though, I’d guess that Palin announces her candidacy within 9-12 months.

2) Mitt Romney – Mitt Romney is definitely running. Since the day he lost the election, he’s been hitting up supporters, raising funds and building his network. Romney makes a formidable presidential candidate, especially if the economy isn’t showing significant signs of improving by the time election season rolls around. He is one of the few candidates who can appeal to both moderate and conservative voters, he has a lot of cash, and he’s a former businessman, so he has the street cred to tackle the country’s economic problems. On the other hand, he has to overcome the perception that he’s a flip-flopper, willing to abandon his principles for the sake of saying the right things to the right audience.

3) Newt Gingrich – Newt Gingrich already toyed with the idea of running for president in 2008, and has been coyly smacking his lips on all kinds of talking head television shows since then. Gingrich’s strength as a candidate is his position as one of the intellectual leaders of the Republican party. Instead of simply running on a platform of opposition to Obama, he’s one of the candidates that’s most likely to generate new ideas and formulate a substantive platform on which to run. On the other hand, Gingrich tends to run at the mouth and and he’ll be an easy target of political commercials because of the skeletons in his closet.

4) Senator John Thune – For some inexplicable reason, senators from South Dakota have routinely made the cut as possible presidential candidates the last few election cycles. South Dakota is ranked number 45 out of 50 states in terms of population and population density (it has only approximately 800,000 residents). Nevertheless, like Senator Tom Daschle before him (who Thune unseated in 2004 and who considered running in 2008), Thune is on the national stage as a leader of his party (he’s currently the GOP’s chief deputy whip in the Senate), is photogenic and is well-liked in his home state. (Unlike Tom Daschle, he’s hopefully up to date on his tax payments.) While Thune has a lot of momentum going his way right now, and a sizeable war chest, it remains to be seen whether that momentum is sustainable and whether he in fact decides he wants to make a run for president. He also will have to explain why he decided to vote for the Troubled Asset Relief Program even though he fancies himself a fiscal conservative.

5) Governor Haley Barbour – Despite Mississippi Governor Barbour’s crummy ending to 2010, thanks to his unfortunate comments about growing up in the segregated south and to his controversial decision to commute the sentence of a woman sentenced to life in prison on the sole condition that she donate a kidney to her sister, Barbour should not be underestimated as a potential presidential candidate. Think a Republican version of Bill Clinton. He’s a governor from the south (the only serious one to be mentioned as a presidential candidate) who can work wonders on the campaign trail and never met a person he didn’t want to talk to.

6) Governor Tim Pawlenty – Minnesota Governor Tim Pawlenty is the kind of candidate that will join the race because everyone is telling him to join the race (and because he's been working at laying the foundation for a race the last two years), but is most likely not the kind of candidate who will get the GOP nod (he could make an attractive running mate however!). On the positive side of the ledger sheet for Pawlenty – he is a former governor of Minnesota who succeeded in governing a state with a maverick reputation and with a healthy mix of both Democrats and Republicans. On the other hand, Pawlenty has had a hard time shedding his “nice guy” image and may have a problem getting national support and momentum to turn in his favor.

7) Governor Mitch Daniels – As one of the few governors on the list, Mitch Daniels already has a strong argument in his favor for the GOP nod. While he may be one of the darker horse candidates, he’s also considered a rising star in Republican circles, has successfully governed the state of Indiana, is a credible fiscal conservative and could get an early win in his almost-neighbor, Iowa. He also remains an enigma on social issues, which could make him appeal to a broader segment of the population, even at the risk of alienating his conservative base.

8) Congressman Mike Pence – The House Republican from Indiana is clearly positioning himself for a run for President. He voted against the bi-partisan tax compromise in December because it wasn't fiscally conservative enough and is trying to snag the role of the party's conservative standard bearer in the House. Unfortunately for him, all conservative roads lead to bigger names like Sarah Palin, and how many candidates from Indiana can the GOP consider? Governor Daniels, if he decides to run, will definitely have an edge over Congressman Pence.

9) Mike Huckabee - Mike Huckabee will almost certainly toss his hat into the ring to run for president, but he faces long odds at replicating the success he had in 2008. While he has a base of support among social conservatives, he's proven himself more as a successful Fox News commentator the last two years than as a politician. He also lacks support among the GOP establishment.

10) Mayor Michael Bloomberg – Since Bloomberg is a recovering Republican, I figured I’d include him in this list. Given his massive fortune and his success as mayor, Bloomberg’s name has been on the lips of every political pundit since he took office nearly ten years ago. That being said, Bloomberg may very well have gotten in his own way this time. His decision to extend term limits so that he could be mayor for a third term rubbed some of the polish off his tenure. And, most recently, he flubbed the selection process for a new school chancellor and was too busy playing in the snow during the Christmas weekend blizzard to properly mobilize snow clearing efforts. On top of all that, Bloomberg might have announced one too many times that he’s not interested in running for president. By now, people just might have started believing him.

11) Ambassador Jon HuntsmanThe New Republic's profile of then-Governor Huntsman during the last election cycle on top of a lot of other media buzz made Huntsman a frequently mentioned future presidential candidate. And then…..Huntsman joined the Obama administration as the Ambassador to China. Rumors are swirling that Huntsman is considering a run in 2012, but I can’t see how he overcomes the Himalayan sized speed bump sitting in front of him – which is justifying running against an administration in which he is currently an integral part. Also, I think it’s fair to say that the 7,000 mile rule applies here - American voters aren’t likely to remember much about Ambassador Huntsman when he’s living and working all the way around the world.

12) Rick Santorum – Prospective GOP presidential candidates can be categorized several ways, one of them being where they fall along the moderate to conservative spectrum. Santorum has positioned himself as a tried and true conservative, and has been testing the waters for a presidential run since he lost his Pennsylvania Senate seat to Bob Casey, Jr. in 2006. Santorum’s bid however faces long odds. To snag the GOP nomination he’ll have to beat out other, more well-known, conservatives, and figure out how to expand his reach to moderate Republicans whom he's ignored for his entire career.

Honorable Mention:

These three individuals almost made my list but for the reasons explained below, did not.

Jeb Bush – One of the most striking aspects of my list is that it does not include anyone from the Bush administration: no former VP, no former Secretary of State or any other former cabinet member or political advisor. (Detractors of President Bush would of course point to this fact as a sign that his legacy is not a proud one). Jeb Bush presents an intriguing choice as a presidential candidate. He’s generally considered to have had a successful tenure as Florida’s governor before Charlie Crist. And, his last name is Bush, so he has political connections up the wazoo and an established political pedigree. Lastly, while he has the Bush family name, he was never a member of either Bush administration, so any criticism he might attract for W’s policies probably won’t gain traction. That being said, Jeb Bush has repeatedly disavowed any intention to run for president, and I think he’s sincere.

Scott Brown – Since upstaging the political order by winning the late Senator Ted Kennedy's seat in Massachusetts, Senator Brown has, by all indications, managed his time in the spotlight effectively. He hasn’t made any major gaffes, he’s established his independence from both political parties and he’s seemingly well-liked by his constituents, no small feat considering he’s a Republican in the land of the Kennedys. That being said, Scott Brown will have a much easier time running as a more seasoned politician. He'd also have some difficulty making the case now why Obama shouldn’t be in office, since he’s supported some of Obama’s signature legislative accomplishments (even though he voted against the health care bill). Keep an eye out for Scott Brown in 2016.

Marco Rubio – There’s no doubt that after the 2010 Senate race, Marco Rubio is a shining star among tea party enthusiasts. He’s also from Florida, which is always a plus when calculating which states’ electoral votes a candidate will have an easy time winning. But, it’s hard to see how Rubio transitions from recently winning a very expensive Senate race to running for President without having a moment’s pause to catch his breath, to prove himself as an able politician and to allow his donors to re-fill their coffers. Like Scott Brown, keep an eye out for Rubio for 2016.