- The Washington Times - Monday, October 13, 2003

A surefire applause line on the Democratic campaign trail these days is a poke at Attorney General John Ashcroft, supposedly the Attila the Hun of the Bush administration.

In his “first five seconds” as president, asserts Rep. Richard Gephardt, he would fire Mr. Ashcroft (as if there were any prospect a Republican attorney general would be retained by any Democratic president). Mr. Ashcroft is “trampling on the Bill of Rights,” thunders Sen. John Kerry of Massachusetts. Former Vermont Gov. Howard Dean warns that the U.S.A. Patriot Act Mr. Ashcroft undertook to support in a nationwide speaking tour starting in Detroit is eroding “the rights of average Americans.”

The nation’s editorial pages aren’t far behind. The New York Times recently went ballistic about the attorney general’s supposed desire “to roll back civil liberties,” as evidenced by Mr. Ashcroft’s insistence that library records of unsuspecting readers could be seized willy-nilly by government as part of a terrorist investigation. Others have suggested he is in cahoots with Pat Robertson to establish some sort of theocracy on American soil.

The fevered attacks are part of the left’s desire to portray anybody who disagrees with it as a dangerous extremist. Never mind that a majority of Democrats in the House voted in favor of the U.S.A. Patriot Act or that the new world of terrorism ushered in on September 11, 2001, might call for tightening security procedures a bit. If Mr. Ashcroft and President Bush weren’t taking a tough line against terrorism, you can imagine what their critics would be saying about them.

But where there is smoke, there is sometimes a little fire as well. Mr. Ashcroft does seem a tad tone-deaf when he lashes out against librarians for protesting the Patriot Act’s power to grab the reading lists of citizens. And though most prosecutors are well aware of the dangers of ad-libbing about criminal cases in which they are involved, Mr. Ashcroft couldn’t resist the temptation in April 2002 of remarking that the testimony of the key — indeed, virtually the only — witness against four men on trial in Detroit federal court “has been of value, substantial value.”

Had jurors seen the remark, they might reasonably have concluded that Youssef Hmimssa’s claims the defendants were plotting violent attacks on an American military base should be taken at face value. As it happens, two of the defendants were convicted of conspiring to aid foreign terrorists, one was convicted of false document charges and one was acquitted. The witness, Mr. Hmimmsa, in hopes of a lenient sentence, already had pleaded guilty to falsifying documents.

The lawyers for the defendants, whose sentencing is still pending, have asked federal district Judge Gerald E. Rosen to hold Mr. Ashcroft in contempt. A decision about whether to order Mr. Ashcroft to appear in Detroit to face the charge is expected soon. But the fact Judge Rosen hasn’t granted the Justice Department’s demands that the case be dismissed outright may suggest the judge himself finds merit in the accusation. A public hearing with the attorney general in the dock will only give the left new ammunition against the Bush administration.

The charge of contempt does seem somewhat overwrought. The jurors, when polled, denied having learned of the attorney general’s remarks. And it assumes jurors are unable to sort out the facts from the usual hyperbole surrounding any high-profile case.

Nonetheless, a rule is a rule — and the rules in criminal cases deserve to be closely adhered to. The claim by Mr. Ashcroft’s underlings that his remark was “inadvertent” won’t wash. If the top prosecutor in the land isn’t aware of the rules, much less basic fairness, he should find another job.

Rather than fight the charge, reinforcing his image as a stiff-necked threat to civil liberties, Mr. Ashcroft should simply confess his error, apologize to the court and hope for the best. Judge Rosen, an appointee of the first President Bush, probably isn’t looking for a fight. (The judge wouldn’t comment on his likely disposition of the case.) But lifetime tenure gives a judge plenty of room to insist that even the attorney general of the United States must play by the rules.

Tom Bray is a Detroit News columnist.

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