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Thursday, March 15, 2007
By Steven L. Taylor

As I read, watch and listen to the coverage of the USA firings, I continue to be amazed at the dismissive approach that many are taking of the issue. Now, is this the end of the Republic? Hardly–but it is important and it is, as best I can tell, unprecedented.

Writing in Slate Lincoln Caplan gets to a central issues that is among many being forgotten in the discussion (What’s really wrong with the Bush Justice Department)–the emphasis is mine:

The attorney general and the lawyers who work for him represent the administration that picks them. But their client is the United States, and the oath they swear is to uphold the nation’s laws and the Constitution. The country’s 93 U.S. attorneys transform from political appointees into public servants when they join the Justice Department. Once in place, they gain a significant measure of independence. For most crimes, they have the power to indict without approval from “Main Justice,” the Washington, D.C. headquarters. This independence is “vital to ensuring the fair and impartial administration of justice,” in the words of Mary Jo White, a former U.S. attorney who worked in the Justice Department for both Republican and Democratic attorneys general.

The bolded words above should seek to underscore why it is problematic to have DoJ functionaries ranking USAs based on their loyalty to the President. Further it should underscore why forcing USAs from their jobs for reasons other than actual job performance is similarly problematic.

Caplan continues:

The White House and DoJ are now under fire because, in disrespecting the post of U.S. attorney, they appeared to interfere with the independence of that office in a way that’s unprecedented. In the previous quarter-century, according to the Congressional Research Service, no more than five and perhaps only two U.S. attorneys, out of 486 appointed by a president and confirmed by the Senate, have been similarly forced out—in the middle of a presidential term for reasons not related to misconduct. “It would be unprecedented for the Department of Justice or the president to ask for the resignations of United States attorneys during an administration, except in rare instances of misconduct or for other significant cause,” White said when she testified in February about the Bush firings before much was known about them. Previous midterm removals include those of a Reagan U.S. attorney fired and convicted for leaking confidential information and a Clinton appointee who resigned under pressure after he lost a major drug case and allegedly went to an adult club and bit a topless dancer on the arm.

This re-iterates a point that Ed Morrissey made, and that I noted, last night.

Small government conservatives/libertarians and the like who might find a partisan harbor in the GOP and therefore be inclined to have defense of a Republican administration as their default position should seriously consider the following:

Why should U.S. attorneys be insulated from presidential politics? White quoted from a 1940 speech to U.S. attorneys by Robert Jackson, then attorney general and later Supreme Court justice: “The prosecutor has more control over life, liberty, and reputation than any other person in America. His discretion is tremendous.” The power of law enforcement to tarnish reputations, end people’s liberty, and ruin lives, in other words, is so great that it has to be exercised judiciously and, above all, nonpolitically. That’s one basic element of the rule of law. U.S. attorneys and other Justice Department lawyers have lived by the declaration of evenhandedness carved into the rotunda of the attorney general’s office: “The United States wins its point whenever justice is done its citizens in the courts.”

Indeed.

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59 Responses to “More on the USAs (My Ongoing Attempt to Understand, Inform and Persuade)”

  1. Minor Ripper Says:

    Quite frankly I’ve found this Dept. of Justice firings business very complicated, and a bit boring. Thankfully, Jon Stewart explains it to me in this video:
    http://minor-ripper.blogspot.com/2007/03/jon-stewart-explains-department-of.html

  2. ProfessorBainbridge.com ® Says:

    Taylor on the US Attorney Mess

    Steven Taylor has been blogging up a storm on the US Attorney firings. Here’s his latest post with links to his earlier commentary.

  3. kim Says:

    How is the executive to carry out his sworn duty to enforce the laws if his prosecutors do not serve at his will, alone. The deputies are protected from political influence, but it is a liberal argument that the prosecuting authority be subject to political will. Would you really have it otherwise?

    Think carefully.
    ======

  4. Dr. Steven Taylor Says:

    Kim,

    I am a little unclear on your point.

    My point would be that prosecutors should have their primary allegiance to the law and the Constitution, not to a specific man (e.g., a specific President).

  5. kim Says:

    Imagine a prosecutor not subject to recall, like Fitzgerald. Look at how he has abused process. The judiciary should be beyond political influence, not the prosecuting authority. This is basic. Please.
    ================================

  6. kim Says:

    Historically, look at the liberal arguments against Ervin’s proposals after Watergate. This is not my thinking. The giantess whose shoulders I stand on is Clarice Feldman.
    =================================

  7. kim Says:

    Ah, you must distinguish between the ‘Executive’ and ‘this specific President’. Your argument devolves to BDS, I’m sorry to point out.
    ======================================

  8. Dr. Steven Taylor Says:

    That isn’t what I am suggesting. The way it is supposed to work is that the USAs are appointed for 4 year terms with Senate confirmation and their job is to prosecute crimes in their jurisictions–that isn’t what Fitzgerald was doing, who was tasked with investigating something before a crime had been identified.

    The problem with the current situation (the firings) is that it exploits a portion of the Patriot Act to allow the AG to appoint USAs for indefinite periods of time without Senate confirmation. And if the AG wants to use that power to appoint USAs who see their primary loyalty as to the President instead of to the law and the Constitution, then there is a serious problem.

    I think you are missing what “independent” means here. The idea is not “independent” from all controls, but “independent” from partisan political manipulation. There is a substantial difference.

  9. Dr. Steven Taylor Says:

    Ah, you must distinguish between the ‘Executive’ and ‘this specific President’. Your argument devolves to BDS, I’m sorry to point out.

    It’s called speaking in the general. And you misread my comment–I said “a specific president”–I don’t think any functionary within the federal government should see his or her primary loyalty as being to a specific president–that’s dangerous.

    And if you are going to assert BDS then I really have a hard time taking your position seriously.

  10. Dr. Steven Taylor Says:

    And you are clearly mixing the notion of independent/special counsels with the notion of USAs independent of partisan politics–those are very, very different issues.

    Indeed, the irony is that independent/special counsels often weren’t independent of partisan influence, and hence the problem. As such you are undermining your own argument and agreeing with me more than you realize.

  11. kim Says:

    The law and the Constitution say that the US Attorney serves at the will of the President. It is geschribben. How is the executive to enforce the law if the prosecutors do not follow its will? How are you going to allow policy input to the process without this mechanism. You are proposing prosecution with overview.

    I’m sorry I introduced Fitzgerald. He has been a magnificent prosecutor of criminal conspiracies, rolling them up with unparalleled technique. But once he was placed in a position without overview, and facing the absence of a criminal conspiracy, he proceeded to make a mockery of Federal prosecutorial powers, and no one, no not Congress, can do anything about it. That’s what you get when prosecutors are not subject to policy review. You really don’t want to go there, do you? Think, Doctor, think.
    ========================================

  12. Dr. Steven Taylor Says:

    One more time: I have not argued that USAs should not be subject to firing–that is not, and has never been the point.

    Please go read all of my posts on the subject and then come back if you still want to argue. You have an ill-formed definition of “independent” in this context and you really don’t understand my position.

  13. kim Says:

    Wow, you really are wild. You want to completely emasculate the executive? You propose no federal functionary with primary loyalty to the executive branch?

    Read the Constitution, or someone, about separation of powers.
    =========================

  14. kim Says:

    Leave ‘independent’ out of it. How is policy supposed to impact prosecutors if they are not subject to political will? I don’t need to read anything more to ask that question.
    ===============

  15. Dr. Steven Taylor Says:

    Loyalty should be to the law and US Constitution.

    However, I said noting about emasculating the executive.

    And yes, I think some reading would be of use to you.

  16. kim Says:

    Well, if it’s not BDS, then would you agree that some other President has authority to bend the US Attorney to his, or her, will? It’s in the Constitution as such. Read. With understanding. It was put there in response to a very liberal idea and that is that the people would have impact on the prosecutors.
    =================================

  17. kim Says:

    Sure, I’m the one who mentioned ‘emasculating the executive’. You’re the one who mentioned not allowing any Federal functionary to have loyalty to the executive branch.
    ===================================

  18. Dr. Steven Taylor Says:

    A president (including this one) has the authority to remove a USA–I have never disputed that fact (again, if you would read all of posts, it would help you comprehend my position).

    Given that I have already written hundreds of words on this subject, I don’t really have the time to full replicate them here.

    There are 8 links above that will answer some of your questions.

    Asserting “liberal” ideas of BDS or whatever demonstrates that a) you are coming from a decided partisan POV and b) you really know nothing about me or my politics.

    Again: read what I have written. Indeed, here they are again, the start at the bottom and read up.

  19. kim Says:

    So, don’t answer the question. In your world, how does public policy, as determined by elections, impact prosecutors?
    =====================

  20. Dr. Steven Taylor Says:

    You are missing the point.

  21. A.S. Says:

    “But their client is the United States, and the oath they swear is to uphold the nation’s laws and the Constitution.”

    Oh, please. Their oath is no different than the oath of EVERY SINGLE PRESIDENTIAL APPOINTEE. The Treasury Secretary also swears to uphold the Constitution, and not the President who appointed him - how is that any different?

    This post is just more proof that this entire “controversy” is completely bogus.

  22. Brett Says:

    Steven:

    Everyone believes, I think, that US Attorneys are subject to some amount of political will; everyone believes that presidents do have the power to fire US Attorneys; everyone also believes, I hope, that some kinds of reasons for firing US attorneys would be entirely improper, a bad idea, and only defensible if you’re on the political side of the firer.

    A President who fired a US Attorney because he or she filed charges against a member of the President’s family, for example, would be engaging in abuse of the power to fire, even if the President could point to pretextual reasons for the firing. Proving that the reasons are pretexts is hard, but as an objective matter, we don’t want Presidents who do that sort of thing.

    The situation is similar with politically motivated firings, I think. Defenders of the President would have to admit that there is some point at which the power to fire has been abused, even if there is no institutional mechanism short of impeachment to punish the President for that abuse.

    The last time a President got into really hot water for this sort of thing was when AG Bell fired David Marston (no relation) in 1978 for political reasons. And that was one guy; here we’re talking about several of them.

    Several people in Congress, including Don Young and Trent Lott, were really upset about the firing at the time. I wonder if they remember it now.

  23. kim Says:

    I’m not missing your point. I’m saying it is illiberal, and unconstitutional.
    ===========================================

  24. Dr. Steven Taylor Says:

    A.S.:

    The point is that the AG’s office was ranking USAs based on their loyalty to the President, rather than removing them based on how well they executed their constitutional oath.

  25. Dr. Steven Taylor Says:

    I’m not missing your point. I’m saying it is illiberal, and unconstitutional.

    I stand corrected: you don’t understand it.

  26. Dr. Steven Taylor Says:

    Bret:

    Indeed–there is line between exercising legitimate powers and abusing said powers.

    That, of course, is the overall point.

  27. A.S. Says:

    “The point is that the AG’s office was ranking USAs based on their loyalty to the President”

    Which is the exact same reason that Clinton fired all 93 USAs - because they were Republicans not loyal to Clinton. I mean, if the only issue were “how well they executed their constitutional oath”, rather than their loyalty to the President, then Clinton would never have fired the 93.

  28. Brett Says:

    Agreed. It’s a point that’s really hard to understand amidst all the noise from folks yelling “Clinton! Clinton!” or “Presidential Power!” Fun stuff.

  29. Matt T Says:

    This issue can be looked at through different lenses:
    1.)Law
    2.)Practice/precedent
    3.)Common Sense

    From a purely legal perspective, the President and AG did nothing wrong. Nobody, including Dr. Taylor, disputes this. The “see no evil” argument from many on the right relies completely on this fact, and then goes on to claim that this is a media manufactured debacle.

    But, actions that are technically legal may still be unwise, abusive, or contrary to the intent of the law. Precedent helps us here, and we see that USA’s are almost never fired mid-Presidential term. 8 firings in one fell swoop clearly is a marked departure from precedent. Clinton’s mass firing is clearly and completely inalagous to this situation.

    Finally, common sense sometimes must bring an argument back down to Earth. To argue that any federal prosecutor, who is responsible for the life, liberty, and property of so many individuals, should be treated the same as any other political appointee is just not sensical. Further, when you see dissent from both parties about an issue, this is a clear indication that something foul is probably afoot, and that the MSM is not solely responsible.

  30. Dr. Steven Taylor Says:

    A.S.:

    Actually, the scenarios are rather different.

    Those USAs’ terms had expired–they were going to be replaced in any event. The oddness of Clinton’s move was that he didn’t allow them to stay on until replacements were named.

    Even setting aside that, as Ed Morrissey noted yesterday: since when has Clinton become the standard for proper behavior?

    More to the point, this situation is different because of the Patriot Act and the way it changes the power of the AG in naming a “temporary” replacement.

    Like Kim, I really wish you would read everything that I have written if you are going to argue. I would note, in particular, these two posts:

    And I would point to this post (Like it or Not, the USA Story is Serious and Should Not be Dismissed as Unimportant) which notes one of several posts at Captain’s Quarters (a very conservative blog) that share many of my concerns with this issue.

  31. Brett Says:

    I suspect that the problem that some of your readers are having is that your Shakespeare references are too highbrow.

    You should ditch the literary metaphors and write about “an inconvenient boot.” Or something.

  32. kim Says:

    By the way, Patterico has the skinny on the performance issues that led to the firings, if you really want to read what’s going on.
    =================================

  33. A.S. Says:

    Dr. Taylor,

    I read the linked posts, but find them inapposite to the questions at hand.

    “Those USAs’ terms had expired–they were going to be replaced in any event.”

    No, I don’t think they had all expired. They were going to expire shortly. But the length of time remaining in the term of the USA is irrelevant to the issue of whether a President may appropriately fire USAs for political reasons. You seem to want to have it both ways: it’s OK for a President to fire USAs in the beginning of a term (regardless of “how well they executed their constitutional oath” during the term of the prior President), but it is not OK for a President to fire USAs mid-term (because then the only appropriate issue is “how well they executed their constitutional oath”). Sorry, but I find that inconsistent.

    “since when has Clinton become the standard for proper behavior?”

    Why wouldn’t it be? A good way to judge the propriety of the action is to look at the reactions of everyone else at the time - and at the time of Clinton’s firings (which, again, were purely for political reasons, and had nothing to do with how well they executed their constitutional oath), very few people thought firing a USA for political reasons was improper.

    “More to the point, this situation is different because of the Patriot Act and the way it changes the power of the AG in naming a “temporary” replacement.”

    Firing and hiring are separate issues. If there is a problem with the firings, then fine, let’s discuss that, not the change in the power to hire (appoint) new USAs. If the issue is the HIRING of USA’s without Senate confirmation, then stop talking about the firing and move on to that topic.

  34. kim Says:

    Oh boy, “Captain’s Quarters(a very conservative blog).” Why don’t you keep Shakespeare and ditch the ad homs.
    ==========================

  35. Dr. Steven Taylor Says:

    A.S.:

    The USA terms are linked to the four year terms of a President, so yes, their terms had expired.

    And if one fires so that one can hire under new rules, the two are linked.

    Kim,

    Oh boy, “Captain’s Quarters(a very conservative blog).” Why don’t you keep Shakespeare and ditch the ad homs.

    I’m afraid I don’t follow: are you suggesting that calling CQ a “very conservative blog” somehow an ad hominem attack? Is being called “conservative” an insult? I don’t understand your point.

  36. kim Says:

    Is an ad hominem necessarily an insult? No, it’s just an irrelevancy to the point of the argument, which yours was.
    ==============================

  37. kim Says:

    You are right, we don’t understand each other.
    ===========================

  38. Dr. Steven Taylor Says:

    The only reason that CQ’s conservative leanings might be a relevance is that you have attacked my position as “liberal” (and, ironically, “illiberal”) and as the result of BDS. As such, I thought you might be willing to note that someone who is known to be conservative had a stance not dissimilar to mine.

    The fundamental problem in this entire interchange is that you have not fully reviewed my position before attacking.

  39. kim Says:

    No, the fundamental problem is that you reason from the belief that these attorneys were fired for reasons other than performance. Your illiberality shows in your contention that they should not be fired for reasons other than performance.
    ===================================

  40. Dr. Steven Taylor Says:

    Then why were at least three (I think that is the right number) of the fired attorneys highly ranked by the DoJ on their performance reviews? Part of the problem here is that the AG and others have said that these firing were for performance, when the e-mails released by the DoJ don’t demonstrate this to be true.

    I just don’t think you have as much information about the situation as you think you do.

  41. kim Says:

    You haven’t read Patterico, have you?

    You can lead a horse, etc.
    ==========================

  42. A.S. Says:

    “The USA terms are linked to the four year terms of a President, so yes, their terms had expired.”

    No. Their terms are for four years. Period. They aren’t appointed on the first day of a President’s term, and thus their terms do not end on the last day of the President’s term.

    But this is nitpicking. You completely ignore the substance of the argument. Which is telling.

  43. kim Says:

    Bye, bye. You are unpersuadable.
    ======================

  44. Dr. Steven Taylor Says:

    I suppose I could say the same thing, as you clearly haven’t read all of my posts.

    And I will, no doubt, get to Patterico at some point.

    Although why you can assert that I should go read someone else, but when I suggest CQ (which I presume you also have not read) you accuse me of ad hominem is curious.

  45. Brett Says:

    A.S.:

    Let’s see how Trent Lott and Don Young react, then. They were angry enough about Carter’s AG’s actions to cosponsor a resolution about it.

    Time magazine, by the way, castigated Carter as well, as did much of the rest of the media.

    The more important point, at any rate, is whether a President should do this kind of thing. The answer is almost certainly no. Why one would need to look to the reactions of others to figure that out is mysterious.

  46. Reg Says:

    Jackson’s quote is a good argument against politically motivated prosecutions. But that hasn’t been alleged has it?

    Prosecutor’s have always had a lot of discretion, and pursue the policies of the president. Under Clinton, lots of deadbeat dad cases were brought. Those cases have been ignored in favor of other policies under Bush. Under Bush, corruption has been made a priority. Lots of Republicans have been indicted as well as Democrats. Governor Ryan and Congressman Ney spring to mind. If a prosecutor has been dragging his heels pursuing the priorities of the president, he ought to replace them. Also, I don’t see how replacing attorneys to bring in fresh blood, that is, giving promising young attorneys the experience, is at all harmful. Jackson’s argument doesn’t apply to that case.

  47. Dr. Steven Taylor Says:

    The point isn’t about the USAs that were in place, as much as it is about what kind of USAs you are going to get if you base their appointments solely on factors like loyalty to the President.

    There is a difference between having a general policy focus and direction from the AG, yet another to use the USAs as a partisan political tool.

  48. kim Says:

    You still haven’t read Patterico or you would know how the LATimes used a propaganda technique to show the ‘useful idiots’ how this was all about loyalty to the President, and not about performance.

    You can lead a horse to water, but you can’t make him say neigh.
    ========================================

  49. kim Says:

    You might as well read it. And do you really find analogy in the way you referred me to CQ as an authority, and the way I’m referring you to Patterico as an authority? Please try to understand that an ad hominem is not necessarily pejorative; it is merely an irrelevancy.
    =====================================

  50. kim Says:

    Remember, to persuade, you must be persuadable yourself.
    ===================================

  51. Dr. Steven Taylor Says:

    The irony is great, I must say.

    I am not certain what the LAT has to do with my post, as I didn’t cite the LAT.

    And ultimately I have come to my own conclusions looking at the actual e-mails from Sampson and co. Have you?

    New e-mails were released last night, which I have not had the time to comment upon, which specifically point to ferreting out USAs who weren’t “loyal Bushies”–that doesn’t sound like a performance-related process to me.

    Make your argument, don’t point to someone else’s.

    In pointing to CQ I was not trying to have his post argue for me, I have more than laid out my position (which you continue to refuse to read), but rather was noting that ther are conservatives who find this situation problematic. You, however, don’t make an argument, call names (e.g., BDS, “liberal,” “illiberal”–all of which is ad hominem in the negative sense), and engage in the logical fallacy of appeal to authority (”The giantess whose shoulders I stand on is Clarice Feldman”) and telling me to go read someone else’s thoughts on the subject. Where are your thoughts on the subject?

    Horses, water and neighing aren’t argument. Admonitions to go read Patterico aren’t arguments, slinging questions that, once answered, are ignored, isn’t an argument.

    Feel free to read and comment–but try to make an actual argument. If you are going to effectively rebut my position, you have to understand it and you have not demonstrated such understanding.

  52. Dr. Steven Taylor Says:

    This is rich. I read some of Paterico’s posts on the subject.

    In this one he agrees with a lot of the points I have been making and specifically states “I had a great time on CQ Radio, and ended up agreeing with Ed Morrissey on a number of issues surrounding the U.S. Attorney firings.”

    For those of you keeping score at home, Ed is the author at CQ that I was trying to point Kim towards.

    Further, it seems the Patterico is focused on the Carol Lam firing in CA–one of the USAs that I have not focused on. I have commented on the NM and Arkansas cases specifically.

  53. A.S. Says:

    “The more important point, at any rate, is whether a President should do this kind of thing. The answer is almost certainly no.”

    I’m still puzzled by this, as the answer is almost certainly YES. Low performing prosecutors absolutely SHOULD be fired and replaced, with performance measured by the criteria determined by the head of the executive branch.

    Dr. Taylor writes, above, the the issue is “what kind of USAs you are going to get if you base their appointments solely on factors like loyalty to the President”. This, of course, is an issue in the APPOINTMENT of prosecutors, not the firing of them, but nonetheless, I am also puzzled by this (and, perhaps I am wrong, but it appears you have similar concerns). Prosecutors are ALWAYS apponted based, in part, on perceived loyalty to the President, whether they are replaced mid-term or appointed in the beginning of a term. For this purpose, there is no difference that depends upon when the prosecutors are appointed.

    If you have no evidence that the prosecutors were replaced in order to affect the outcome of a specific case (and I’ve seen no evidence of this), I still don’t see what the issue is here.

  54. Matt T Says:

    AS,

    Your comments are verging on the ridiculous. If you equate loyalty with quality of performance, then the logical extension of that reasoning would result in any syncophant with a Republican sticker on his lapel behind a US Attorney desk, regardless of whether that person is competant, impartial, and judicious.

    I could go on about your semantics in trying to separate “appointment” from “termination,” but that argument is too assinine to deal with in a short comment.

    Rather, I just want to reiterate why this issue is a big deal. USAs were fired because they refused to prosecute trumped up charges of voter fraud against Democrats. How anyone does not see this as abuse of power (or at least a really dumb political move) is completely beyond me. If you still don’t understand why even Republican law makers are voicing dissatisfaction with this issue, then no amount of explanation will sway your opinion.

  55. A.S. Says:

    “Rather, I just want to reiterate why this issue is a big deal. USAs were fired because they refused to prosecute trumped up charges of voter fraud against Democrats.”

    Since there is absolutely ZERO evidence of this (other than in Josh Marshall fevered mind), yes, I don’t see why this is a big deal. Sure, Gonzales’s incompetent explanations to Congress are a big deal, but the actual firings - no, not a big deal, on the evidence we have so far.

    And of course Republicans are “voicing dissatisfaction” at Gonzales’s utterly incompetent explanations of the matter - I’m not aware that they are “voicing dissatisfaction” regarding what the USAs were actually fired for.

  56. Matt T Says:

    The may not be incontrovertible PROOF that some of these firings were due to the voter fraud issue, but there is definitely EVIDENCE.

    David Iglesias commenting about Congressmen calling him and requesting voter fraud prosecutions, which he then rebuffed:

    “I didn’t give them what they wanted. That was probably a political problem that caused them to go to the White House or whomever and complain that I wasn’t a team player.”

    Unless you question this man’s credibility, how is this not evidence?

  57. Brett Says:

    A.S.: We’re on to the issue I noted above, then: that at this point it’s hard to prove whether the firings were pretext firings. I agree. I don’t agree that there has been “zero evidence,” though, nor does anyone else as far as I can tell. But at least we’re on to the right question: whether they were pretext firings or not.

  58. Brett Bellmore Says:

    The problem here is, as I see it, that firing due to the vote fraud issue, and firing “because they refused to prosecute trumped up charges of voter fraud against Democrats.” are only the same if you take it as a given that the charges were trumped up.

    There’s not really any question that votes got illegally cast, (In numbers easily sufficent to throw an election.) or that there were a lot of fraudulent registrations. The only real question is whether it was appropriate to prosecute. And this appears to be a policy difference between the fired USAs and the administration, on how ballot fraud cases should be treated. With the fired USAs having some institutional support in the Justice department, and the administration being determined to change Justices’ attitude towards ballot fraud.

  59. kim Says:

    I’ll trump the Shark. Read Steve Sharkansky for evidence for charges McKay should have prosecuted.
    ==============================


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