Gadfly is Marty Aussenberg, a columnist for the weekly Memphis Flyer. Marty is a former SEC enforcement official, currently in private law practice in Memphis, Tennessee. (A full bio is below the fold.) Cross-posted at The Memphis Flyer.

Given the revelations over the weekend that the government
is back in the business of spying on American citizens, and the
gauntlet-throwing admission by Bush that he authorized such action, and

would do it again
, the question now is, who can reign in this outlaw
administration, and who can do it before any more damage is done. My answer to
that question is: Patrick Fitzgerald.

Sadly, the Special Prosecutor’s mandate does not include
violations of the Foreign Intelligence Surveillance Act, which

criminalizes domestic spying
, but count me among those who believe that this
straight-shooting, law-enforcing, righteous American hero was probably one of
the most shocked, and possibly even outraged, recipients of the news that our
President believes he is above the law.  As Fitzgerald has already concluded,
this attitude of arrogance and nose-thumbing is endemic in the Bush White
House.  It manifests itself in the leaking of national security information and
in the belief that truth and the rule of law are considered dispensable by the
current occupants of the White House.

Fitzgerald already knows that Libby and Rove lie when it
suits them (and, of course, we all know that Bush, Rice, Cheney, Rumsfeld, et
al. have a history of doing so as well), and that they regard the law as
something that applies to them only when they decide it does.  He also knows
that Cheney was in the Plame leak up to his ears, and that he knew, when he told
Libby about Plame’s employment, that she was a covert CIA operative (Paragraph
9 of the Libby Indictment
). Whether Fitzgerald has enough now, with the
benefit of his second grand jury (and remember, I predicted that he wasn’t

when he announced his first go-round of indictments
—  to modify the Libby
indictment, or to indict Rove and/or Cheney, he clearly has the power to send an
arrow through the lying heart of the renegade White House.  An indictment of
Rove, even if it’s only for lying to federal agents and/or to a grand jury, will
burst the balloon inflated by the hubris of an administration that recognizes no
strictures on its conduct, legal or otherwise. 

Remember, too, that we still don’t know what Fitzgerald
knows about Bob Novak’s source for the leak which first appeared in his column,
and set off the firestorm that culminated with Fitzgerald’s appointment.  But,
we now have a clue about that, given Novak’s surprising

revelation that Bush knows who his source was
, raising the possibility that
Bush himself may have been involved in the leak, and if so, that he may have
some criminal responsibility for breaking that law.  And while Bush can’t be
indicted by a grand jury, he can certainly be named an unindicted
co-conspirator, which is, after all, the treatment Cheney received in the Libby

Given that the Republican congress has shown itself to be
nothing more than a rubber stamp for Bush’s policies, whether it was treatment
of prisoners in Guantanamo, sweetheart contracts with Halliburton, kissing the
oil companies’ butts or the other demonstrable excesses of this administration,
there is absolutely no reason to believe the congress will be any more effective
at reigning in, much less holding to account, the Bush domestic wiretapping
program.  This is especially so given that

some congressional leaders were, in fact, informed of this illegal program and
did nothing to stop it
. The last thing we need here is another congressional
show hearing, as

Senator Specter is promising to do

Mr. Fitzpatrick, where are you now that we need you?


Mr. Aussenberg is an attorney practicing in his own firm in Memphis, Tennessee. He began his career in the private practice of law in Memphis after relocating from Washington, D.C., where he spent five years at the Securities and Exchange Commission as a Special Counsel and Trial Attorney in its Enforcement Division, during which time he handled or supervised the investigation and litigation of several significant cases involving insider trading, market manipulation, and management fraud. Prior to his stint at the S.E.C., he was an Assistant Attorney General with the Pennsylvania Department of Banking in Philadelphia and was the Attorney-In-Charge of Litigation for the Pennsylvania Securities Commission, where, in addition to representing that agency in numerous state trial and appellate courts, he successfully prosecuted the first case of criminal securities fraud in the state’s history.

Mr. Aussenberg’s private practice has focused primarily on investment, financial, corporate and business counseling, litigation and arbitration and regulatory proceedings. He has represented individual, institutional and governmental investors, as well as brokerage firms and individual brokers, in securities and commodities-related matters, S.E.C., NASD and state securities regulatory proceedings, and has represented parties in shareholder derivative, class action and multi-district litigation, as well as defending parties in securities, commodities, and other “white-collar” criminal cases.

Mr. Aussenberg received his J.D. degree from the University of Pittsburgh School of Law, and his B.A. degree in Honors Political Science from the University of Pittsburgh. Immediately following law school, he served as a Reginald Heber Smith Community Lawyer Fellow with the Delaware County Legal Assistance Association in Chester, Pennsylvania.

He is admitted to practice in Tennessee, Pennsylvania and the District of Columbia, before the United States Supreme Court, the Third and Sixth Circuit Courts of Appeals, and the United States Tax Court, as well as federal district courts in Tennessee, Arkansas, Mississippi and Louisiana. He is an arbitrator for the NASD, New York Stock Exchange and American Arbitration Association, has published articles (“Stockbroker Fraud: This Kind of Churning Doesn’t Make Butter”, Journal of the Tennessee Society of C.P.A.’s,; Newsletter of the Arkansas Society of C.P.A.’s; Hoosier Banker (Indiana Bankers Association), and been a featured speaker on a variety of topics at seminars in the United States and Canada, including: Municipal Treasurers Association of the United States and Canada, Ottawa, Canada; Government Finance Officers Association; National Institute of Municipal Law Officers, Washington, D.C. ; Tennessee Society of Certified Public Accountants, Memphis, TN; Tennessee Association of Public Accountants, Memphis, TN (1993)

Mr. Aussenberg has two children, a daughter who is a graduate of Columbia University and holds a Masters in Public Health from Johns Hopkins University and is currently a student at the University of Pittsburgh School of Law, and a son who is a graduate of Brown University and is working with a conservation organization in Marin County, California while he decides what to do with the rest of his life.

Mr. Aussenberg is an avid golfer whose only handicap is his game, an occasional trap shooter whose best competitive score was a 92, and an even less frequent jazz drummer.

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