The Seventh Sense

U.S. Attorneys Vindicated

The U.S Attorney hiring/firing scandal was a big issue in the latter years of the Bush presidency.  I blogged about it often.

Basically, it was this: The Department of Justice hired and fired U.S. attorneys based not on their merit, but on political considerations, thus politicizing the DOJ.  The Bush White House, and Karl Rove in particular, denied any involvement.

Then the 2009 election came along, and the issue seemingly went away.

But it didn't.  There was still an investigation going on in the House of Representatives.  Karl Rove and Harriet Miers, who had ducked the subpeonae (citing executive privilege) while they were in office, no longer were able to duck the subpeonae.

And with this week's release of documents, we now know the truth.  The White House was heavily involved in the hiring and firing of U.S. attorneys, with the criteria being -- not merit -- but loyalty to Bush politics.

For the fired (Democratic) U.S. attorneys, there is vindication.

The Final Word On The DOJ

Remember this scandal?  Verdict (of a sort) is in:

Former Justice Department counselor Monica M. Goodling and former chief of staff D. Kyle Sampson routinely broke the law by conducting political litmus tests on candidates for jobs as immigration judges and line prosecutors, according to an inspector general's report released today.

Goodling passed over hundreds of qualified applicants and squashed the promotions of others after deeming candidates insufficiently loyal to the Republican party, said investigators, who interviewed 85 people and received information from 300 other job seekers at Justice. Sampson developed a system to screen immigration judge candidates based on improper political considerations and routinely took recommendations from the White House Office of Political Affairs and Presidential Personnel, the report said.

Goodling regularly asked candidates for career jobs: "What is it about George W. Bush that makes you want to serve him?" the report said. One former Justice Department official told investigators she had complained that Goodling was asking interviewees for their views on abortion, according to the report.

Taking political or personal factors into account in employment decisions for career positions violates civil service laws and can run afoul of ethics rules. Investigators said today that both Goodling and Sampson had engaged in "misconduct."

The improper personnel moves deprived worthy candidates of promotions and damaged the credibility of the Justice Department, investigators wrote. An experienced counterterrorism prosecutor, for example, was kept from advancing in favor of a more junior lawyer who lacked a background in terrorism.

The procedures imposed on immigration judge candidates caused serious delays in appointing judges at a time when the courts suffered under a heavy workload, the report said.

Of all the Bush adminsitration scandals, and there have been many, this particular scandal will probably be a footnote.  But sadly, it should be remembered more fervently.  We get into very dangerous grounds will the law, and those oblligated to enforce, are politicized.

The final report from the DOJ (PDF format) contains goodies like this:

We interviewed Angela Williamson, who was the Department’s Deputy White House Liaison and reported to Goodling during most of Goodling’s tenure as White House Liaison. Williamson attended numerous interviews conducted by Goodling and told us that Goodling asked the same questions “all the time” and tried to ask the same questions of all candidates. [...] After Goodling resigned, Williamson typed from memory the list of questions Goodling asked as a guide for future interviews. Among other questions, the list included the following:

• Tell us about your political philosophy. There are different groups of conservatives, by way of example: Social Conservative, Fiscal Conservative, Law & Order Republican.

• [W]hat is it about George W. Bush that makes you want to serve him?

• Aside from the President, give us an example of someone currently or recently in public service who you admire.

We found that this last question often took the form of asking the candidate to identify his or her most admired President, Supreme Court Justice, or legislator. Some candidates were asked to identify a person for all three categories. Williamson told us that sometimes Goodling asked candidates: “Why are you a Republican?”

Several candidates interviewed by Goodling told us they believed that her question about identifying their favorite Supreme Court Justice, President, or legislator was an attempt to determine the candidates’ political beliefs. For example, one candidate reported that after he stated he admired Secretary of State Condoleezza Rice, Goodling “frowned” and commented, “but she’s pro-choice.”

Greenwald Is Good Today

He's on a rant about the Justice Department under the Bush Adminsitration -- people who seem to think they work for the President and not for the people of the United States:

The core attribute of the Justice Department is independence, not allegiance to the President as "client." The President has his own lawyers in the White House Counsel's Office. The Attorney General is not and never was one of those lawyers. To the contrary, the Attorney General represents the people of the United States -- if he has any "client," that's who it is -- and is often required to take positions and actions adverse to the President. Few things could subvert -- and have subverted -- the American justice system more than thinking of the President as being the "client" of the Attorney General.

This all used to be so basic. But the belief that the DOJ exists to advance the interests and wishes of the President has become a central premise of how our Government now works. The Justice Department has been transformed into but another cog in the instruments of Government that protect and serve the President. And that transformation isn't unique to Alberto Gonzales (who, during a CNN interview while Attorney General, actually referred to Bush as "my client"), as The Washington Post's Dan Froomkin pointed out yesterday:

Michael Mukasey has President Bush's back.

Mukasey succeeded toady Alberto Gonzales as attorney general last fall. But the notion that he would restore independence to that post took a big hit yesterday when he refused to turn over to a House committee key documents related to the CIA leak investigation.

This isn't just ranting for the sake of ranting.  The people who think they work for Bush literally have no idea who they seem to actually work for or what their allegience is to, even though it's spelled out in their oath. 

Exhibit A from last year -- former White House official Sara Taylor actually went before the Senate and testified that she understood that she took an oath when she went to the White House that was "an oath to the President":

That's quite disconcerting...

Inspector General's Report: DOJ Politicized Hiring

This just in: A report from the inspector general — the result of an investigation into DOJ hiring practices over the last six years — alleges that “many qualified candidates” were rejected from an elite recruitment program because of perceived liberal bias. Here’s a story from the NYT’s Eric Lichtblau, and here’s an AP report. Click here for the 115-page report.

The hiring practices, which reportedly took place under both AG Ashcroft and AG Gonzales, “constituted misconduct and also violated the department’s policies and civil service law that prohibit discrimination in hiring based on political or ideological affiliations,” the report says.

Some snippets from the summary:

...[W]e concluded that McDonald committed misconduct and violated Department policies and civil service law by considering political or ideological affiliations in assessing Honors Program and SLIP candidates. (93)

[W]e concluded that Elston violated federal law and Department policy by deselecting candidates based on their liberal affiliations. (94)

We also concluded that Elston committed misconduct, and violated federal law and Department policy, when he deselected candidates and denied appeals based on his perception of the political or ideological affiliations of the candidates. (96)

We also concluded that OARM Director DeFalaise did not adequately or timely address the concerns that were brought to his attention concerning the Screening Committee's deselections. (96)

Finally, we concluded that Acting Associate Attorney General Mercer did not adequately address the concerns that were brought to his attention by several senior Department officials that the Screening Committee's deselections appeared to have been politicized. (97)...

When Fridman asked McDonald how she obtained the additional information, she told him she conducted searches on Google and MySpace, and read law review articles written by the applicants. For example, Fridman recalled that one candidate had written a law review article about the detention of individuals at Guantánamo, and McDonald noted on the application that she perceived the applicant's viewpoint to be contrary to the position of the administration. On another application, McDonald noted that she found information on the Internet indicating that a candidate was an "anarchist." (78)

The OIG report also notes the destruction of documents pertaining to its investigation by the DOJ.

UPDATE:  Kevin Drum notes a graph showing the number of students from the American Constitutional Society (a liberal legal organization) who were approved/deselected from the "non-political program, as compared to those who were members of the Federalist Society.

Overall, of the applicants nominated, 70% of those who identified as Democrats were de-selected, 32% who identified as Neutral were deselected, and just 11% who identified as Republicans were deselected.

Yup.  A bit of a political bias there.

Attorney Firing Probe Deepens

With Iraq, the economy and the elections, we seem to forget the Bush scandals.  And the attorney firing scandal, which has been festering in the background, is about ready to blow (some say), with allegations of perjury, witness tampering and the like:

The federal investigation into the firing of nine U.S. attorneys could jolt the political landscape ahead of the November elections, according to several people close to the inquiry.

Washington’s attention has been diverted from the scandal since the August resignation of Alberto Gonzales as attorney general, and has focused instead on Democrats’ efforts to hold White House officials in contempt for ignoring congressional subpoenas to testify on Capitol Hill about the firings.

But recent behind-the-scenes activity in several investigations suggests that the issue that roiled Congress in 2007 could re-emerge in the heat of the election year. Two inquiries by the House and Senate ethics committees are examining whether several congressional Republicans, including one running for the Senate this year, improperly interfered with investigations.

As potent as the congressional probes might be, they appear to be far narrower than a sprawling inquiry launched by the Justice Department’s Office of Inspector General (OIG) and the Office of Professional Responsibility (OPR).

Investigators from these offices have been questioning whether senior officials lied to Congress, violated the criminal provisions in the Hatch Act, tampered with witnesses preparing to testify to Congress, obstructed justice, took improper political considerations into account during the hiring and firing of U.S. attorneys and created widespread problems in the department’s Civil Rights Division, according to several people familiar with the investigation.

I'm not quite sure how this will effect the November elections, since it doesn't impute any of the standing Presidential candidates.  But still, it sounds like it is going to bhe nasty.

Recommended Reading

Slate's Top Ten Bush Administration's Dumbest Legal Arguments of the Year.  It's a doozy.

Number one:

1. The United States does not torture.

First there was the 2002 torture memo. That was withdrawn. Then there was the December 2004 statement that declared torture "abhorrent." But then there was the new secret 2005 torture memo. But members of Congress were fully briefed about that. Except that they were not. There was Abu Ghraib. There were the destroyed CIA tapes. So you see, the United States does not torture. Except for when it does.

DOJ Investigating Gonzalez For Lying To Congress

Good:

The Justice Department's inspector general indicated yesterday that he is investigating whether departing Attorney General Alberto R. Gonzales gave false or misleading testimony to Congress, including whether he lied under oath about warrantless surveillance and the firings of nine U.S. attorneys.

I guess it'll be easier for the DOJ to investigate the DOJ, now that Gonzalez no longer runs the DOJ.

The DOJ is also widening its internal probe into the U.S. Attorney firing scandal.

More Cracks In The Wall: Rove Subpoenaed

Breaking news from CNN: they have issued a subpoena to Karl Rove to testify about his role in the Department of Justice attorney firings.

If he goes the route of Harriet Miers and Joshua Bolton -- i.e., refusing to comply -- he (like them) faces contempt of Congress charges.

Contempt!

MSNBC:

WASHINGTON - The House Judiciary Committee voted contempt of Congress citations Wednesday against White House Chief of Staff Josh Bolten and President Bush’s former legal counselor, Harriet Miers.

The 22-17 vote, which would sanction the pair for failure to comply with subpoenas on the firings of several federal prosecutors, advanced the citations to the full House.

The full House will take it up after the August recess.

Fun fact:

The last time a full chamber of Congress voted on a contempt citation was 1983. The House voted 413-0 to cite former Environmental Protection Agency official Rita Lavelle for contempt of Congress for refusing to appear before a House committee. Lavelle was later acquitted in court of the contempt charge, but she was convicted of perjury in a separate trial.

413-0.  That was back in the day when the GOP had enough principles to put down its partisanship and simply enforce the law.  I don't that could happen with today's Republican Party.

Constitutional Showdown

It's brewing:

The House Judiciary Committee announced yesterday that it will press toward a constitutional showdown with the Bush administration over the U.S. attorney firings scandal, even as embattled Attorney General Alberto R. Gonzales vowed to stay on and "fix the problems" that have damaged the reputation and morale of the Justice Department.

John Conyers Jr. (D-Mich.), chairman of the committee, said it will vote on Wednesday on contempt citations for the White House chief of staff, Joshua B. Bolten, and former White House counsel Harriet E. Miers. Both refused congressional demands for information on the dismissals after President Bush invoked executive privilege.

The move puts House Democrats on a legal collision course with the White House, which said last week that it will not allow the Justice Department to prosecute executive branch officials for being in contempt of Congress.

For those of you not paying attention to this story (of only half-paying attention), these are the bulletpoint facts:

• Failure to appear pursuant to a subpoena is a federal crime
• This includes subpoenae issued by Congress for their congressional investigations
• You can appear and refuse to testify to certain questions (i.e., plead the 5th Amendment privilege, or the executive privilege, or some other privilege), but you have to appear
• If you invoke the privilege, it has to be, you know, a bona fide reason, and it must be in response to questions that are asked; there is no such thing as a "blanket" privilege
• Congress was investigating the Department of Justice for their (alleged) use of hiring and firing attorneys based on their political party affiliation (and/or their willingness to prosecute Democrats)
• Congress issued to subpoenae to (among others) Joshua Bolton and Harriet Miers
• Both refused to appear (invoking a blanket "executive privilege")
• Failing to appear in response to a subpoena is, on its face, "contempt of Congress" -- a crime
• But the Department of Justice (the object of the investigation) is the body that prosecutes such crimes
• The Bush Administration has said that the DOJ will not prosecute itself, nor will Bush appoint a special independent prosecutor

In other words, if there is corruption in the Department of Justice, nobody can be brought to trial or charged, because the Department of Justice is the fox guarding the henhouse.

A serious constitutional problem.  In the past, other Presidents have put partisanship aside and appointed special prosecutors.  Bush is not doing that.

So who watches the watchers?

UPDATE:  Law Professor Frank Astin says Congress doesn't need the Executive Branch or the DOJ to enforce their own subpoenae:

Yet under historic and undisturbed law, Congress can enforce its own orders against recalcitrant witnesses without involving the executive branch and without leaving open the possibility of presidential pardon.

And a Supreme Court majority would find it hard to object in the face of two entrenched legal principles.

First is the inherent power of Congress to require testimony on matters within its legislative oversight jurisdiction.

So long as Congress is investigating issues over which it has the power to legislate, it can compel witnesses to appear and respond to questions. That power has been affirmed over and over in prosecutions for contempt.

In modern times, this congressional power has been enforced by referring contempt cases to the U.S. attorney for the District of Columbia for indictment and prosecution. That, of course, is the rub. It allows the president to exercise his plenary power under the Constitution to issue pardons "for offenses against the United States."

But no law says that indictment and prosecution by the Justice Department is the exclusive means to enforce congressional prerogative.

***

Instead of referring a contempt citation to the U.S. attorney, a house of Congress can order the sergeant-at-arms to take recalcitrant witnesses into custody and have them held until they agree to cooperate -- i.e., an order of civil contempt. Technically, the witness could be imprisoned somewhere in the bowels of the Capitol, but historically the sergeant-at-arms has turned defendants over to the custody of the warden of the D.C. jail.

That was what was done in the landmark 1876 case Kilbourn v. Thompson, when the Supreme Court ruled that Congress had overstepped its bounds by investigating the private activities of the defendant in a matter in which it had no jurisdiction.

That decision, however, left no doubt of Congress's power to punish for contempt those who defy lawful investigations.

So, far from being defenseless against the president's refusal to prosecute or the threat of presidential pardon, Congress could take into its own custody defiant administration officials who refuse to cooperate with legitimate inquiries into executive malfeasance. Those targets would have the right to seek writs of habeas corpus from the federal courts, but as long as Congress could show a legitimate need for the information it was seeking pursuant to its legislative oversight functions, it would be standing on solid legal ground.

Is Bush Committing A Felony?

Bush has order his former counsel Harriet Miers to not respond to the Congressional subpoena.

You can't do that.

You can show up in response to the subpoena and claim some sort of executive privilege (see Taylor, Sara), or you can show up and lie (see, Gonzales, Alberto).  But you just can't order someone to not show up, because that's a felony:

18 U.S.C. Sec. 1505 : ... Whoever corruptly ... influences, obstructs, or impedes ... the due and proper exercise of the power of inquiry under which any inquiry or investigation is being had by either House, or any committee of either House or any joint committee of the Congress ... [s]hall be fined under this title, [or] imprisoned not more than 5 years ... or both.

18 U.S.C. Sec. 1515(b): As used in section 1505, the term "corruptly" means acting with an improper purpose, personally or by influencing another, including ... withholding, [or] concealing ... information.

Just saying....

House Interim Staff Report on RNC Emails

House investigators have learned that the Bush administration’s use of Republican National Committee email accounts is far greater than previously disclosed — 140,216 emails sent or received by Karl Rove alone — and that the RNC has overseen “extensive destruction” of many of the emails, including all email records for 51 White House officials.

The Presidential Records Act requires the President to “take all such steps as may be necessary to assure that the activities, deliberations, decisions, and policies that reflect the performance of his constitutional, statutory, or other official or ceremonial duties are adequately documented … and maintained as Presidential records.” To implement this legal requirement, the White House Counsel issued clear written policies in February 2001 instructing White House staff to use only the official White House e-mail system for official communications and to retain any official e-mails they received on a nongovernmental account.

The evidence obtained by the Committee indicates that White House officials used their RNC e-mail accounts in a manner that circumvented these requirements. At this point in the investigation, it is not possible to determine precisely how many presidential records may have been destroyed by the RNC.

They are sooooo busted:

The number of White House officials given RNC e-mail accounts is higher than previously disclosed. In March 2007, White House spokesperson Dana Perino said that only a “handful of officials” had RNC e-mail accounts. In later statements, her estimate rose to “50 over the course of the administration.” In fact, the Committee has learned from the RNC that at least 88 White House officials had RNC e-mail accounts. The officials with RNC e-mail accounts include Karl Rove, the President’s senior advisor; Andrew Card, the former White House Chief of Staff; Ken Mehlman, the former White House Director of Political Affairs; and many other officials in the Office of Political Affairs, the Office of Communications, and the Office of the Vice President.

White House officials made extensive use of their RNC e-mail accounts. The RNC has preserved 140,216 e-mails sent or received by Karl Rove. Over half of these e-mails (75,374) were sent to or received from individuals using official “.gov” e-mail accounts. Other heavy users of RNC e-mail accounts include former White House Director of Political Affairs Sara Taylor (66,018 e-mails) and Deputy Director of Political Affairs Scott Jennings (35,198 e-mails). These e-mail accounts were used by White House officials for official purposes, such as communicating with federal agencies about federal appointments and policies.

There has been extensive destruction of the e-mails of White House officials by the RNC. Of the 88 White House officials who received RNC e-mail accounts, the RNC has preserved no e-mails for 51 officials. In a deposition, Susan Ralston, Mr. Rove’s former executive assistant, testified that many of the White House officials for whom the RNC has no e-mail records were regular users of their RNC e-mail accounts. Although the RNC has preserved no e-mail records for Ken Mehlman, the former Director of Political Affairs, Ms. Ralston testified that Mr. Mehlman used his account “frequently, daily.” In addition, there are major gaps in the e-mail records of the 37 White House officials for whom the RNC did preserve e-mails. The RNC has preserved only 130 e-mails sent to Mr. Rove during President Bush’s first term and no e-mails sent by Mr. Rove prior to November 2003. For many other White House officials, the RNC has no e-mails from before the fall of 2006.

There is evidence that the Office of White House Counsel under Alberto Gonzales may have known that White House officials were using RNC e-mail accounts for official business, but took no action to preserve these presidential records. In her deposition, Ms. Ralston testified that she searched Mr. Rove’s RNC e-mail account in response to an Enron-related investigation in 2001 and the investigation of Special Prosecutor Patrick Fitzgerald later in the Administration. According to Ms. Ralston, the White House Counsel’s office knew about these e-mails because “all of the documents we collected were then turned over to the White House Counsel’s office.” There is no evidence, however, that White House Counsel Gonzales initiated any action to ensure the preservation of the e-mail records that were destroyed by the RNC.

Replacing Ethnic Women With "Good Americans" (White Christian Men)

Bradley Schlozman, a Bush political appointee to the Department of Justice, reportedly tried to remove many female minority attorneys (who came on board under Democratic presidents) and replace them with -- his alleged words -- "good Americans".

An anonymous phone call in 2005 led to an internal investigation, which resulted in these words from the Inspector General:

The full report is here.  The report also says:

"Bradley J. Schlozman is systematically attempting to purge all Civil Rights appellate attorneys hired under Democratic administrations . . . Schlozman told one recently hired attorney that it was his intention to drive these attorneys out of the Appellate Section so that he could replace them with 'good Americans'"

And here's the irony: this all happened within the DOJ's Appellate Section of Civil Rights Division!!!

Was there fallout?  Apparently not -- until now.  TPMmuckraker writes:

It's unclear if the Department's inspector general ever pursued the allegations from the December, 2005 letter at the time. But the office certainly is now. In a letter to the judiciary committee chairmen last month, Glenn Fine and Office of Professional Responsibility counsel Marshall Jarrett announced that their joint probe into the U.S. attorney firings had been expanded to include hiring practices in the Civil Rights Division. Schlozman has been accused of recruiting Republicans for career spots and then asking them to scrub mentions of their GOP bona fides from their resumes.

To be continued... no doubt.

AG AG Under Another Investigation

Not only was a knee-deep in the whole attorney firing issue, but now it looks like he may have obstructed justice in the attorney firing investigation:

The Justice Department is investigating whether Attorney General Alberto R. Gonzales sought to influence the testimony of a departing senior aide during a March meeting in Gonzales's office, according to correspondence released today.

In a letter to the Senate Judiciary Committee, the two officials who are leading an internal Justice Department investigation of the dismissal of nine U.S. attorneys last year said their inquiry includes the Gonzales meeting, which was revealed during testimony last month from former Gonzales aide Monica M. Goodling.

The Post reports, "The disclosure could represent a serious legal threat to the embattled attorney general. [Inspector General Glenn] Fine's office is empowered to refer matters for criminal prosecution if warranted."

It must be pretty bad for the Attorney General to be investigated by his own Justice Department.

Another Document Dump

Yesterday saw even more documents from the White House in the attorney purge scandal, and this one, while small, provides far more proof that the White House was heavily involved in the DOJ's hiring and firing decisions of federal prosecutors.  Carpetbagger sums it up.

UPDATE:  The lastest doc dump has sparked two significant subpoenae -- one to Harriet Miers, and one to Sara Taylor. 

CNN’s legal analyst Jeffrey Toobin reports, “The White House has made clear it will cite executive privilege for conversations that took place within the White House on the U.S. attorney matter, and if the people with those conversations happen to have subsequently left the White House, that doesn’t matter. They’re still going to cite executive privilege, and these people are not going to be allowed to testify anytime soon, it appears, if the White House remains as it has been. … Even if they want to testify.”

This thing ain't over yet.

Outside The System

Released yesterday:

She wanted the memo giving her unprecedented and virtually unchecked hiring and firing authority over non-civil service DoJ employees (the existence of this memo was revealed only last month by Murray Waas of the National Journal).

Moreover, she okayed the memo to be sent to her "outside the system".  Why would she ask that?  Because she knew that it was, shall we say, not kosher.

Flashback to Monica's testimony before Congress a few weeks ago:

"I believe I crossed the line, but I didn’t mean to"

Not "mean to"?  Honey, when you take steps to cover up what you did, then you know it was wrong.

Think Progress has more.

Goodling Answers Questions

Monica Goodling, a 33-year-old graduate of Pat Robertson’s Regent University with six months of prosecutorial experience -- the woman who helped purge prosecutors who failed to be partisan enough -- the woman who refused to hire attorneys because they were "too liberal" (a violation of federal law) -- is testifying today.

She's weaseled her way to receiving immunity, so one wonders whether or not, and to what extent, she'll implicate the White House (Karl Rove, Harriet Miers, etc).  I don't hold out much hope.  [UPDATE: Kevin Drum notes that she is expected to be "forthcoming" today]

Firedoglake, once again, outdoes the mainstream media with its liveblogging coverage.

UPDATE:  Well, so far she's merely suggesting White House involvement, but it's early in the day.

One observer's   so far: "There seem to be two narratives going on in Goodling’s testimony. The first is that she was a nobody with little power who may have inadvertently overstepped her authority occasionally. The second narrative line intrudes into the other from time to time. In this one (call it the Type A narrative), Goodling has the power to make and break people, a power that she repeatedly exercises."

Why The Scandal Matters

N.Y. Times editorial:

The Justice Department is no ordinary agency. Its 93 United States attorney offices, scattered across the country, prosecute federal crimes ranging from public corruption to terrorism. These prosecutors have enormous power: they can wiretap people’s homes, seize property and put people in jail for life. They can destroy businesses, and affect the outcomes of elections. It has always been understood that although they are appointed by a president, usually from his own party, once in office they must operate in a nonpartisan way, and be insulated from outside pressures.

This understanding has badly broken down. It is now clear that United States attorneys were pressured to act in the interests of the Republican Party, and lost their job if they failed to do so. The firing offenses of the nine prosecutors who were purged last year were that they would not indict Democrats, they investigated important Republicans, or they would not try to suppress the votes of Democratic-leaning groups with baseless election fraud cases.

The degree of partisanship in the department is shocking. A study by two professors, Donald Shields of the University of Missouri at St. Louis and John Cragan of Illinois State University, found that the Bush Justice Department has investigated Democratic officeholders and office seekers about four times as often as Republican ones.

What's shocking, to be honest, is that the New York Times HAS TO write an editorial which states the obvious.  The subversion of not just justice, but the whole justice department of the federal government, shouldn't require an explanation of why it is bad.  It is, on its face, very very bad.

The Attorney Firing Scandal In A Nutshell

Nice summary by Marty Lederman:

1. There is little, if any, reliable evidence of any serious problem of voter fraud in the United States.

2. After the 2000 election, if not before, Karl Rove and other Republican operatives decided that Republican political prospects would be immeasurably improved if they would only repeat, as often as possible, the unsupported claim that voter fraud is rampant, and take substantial steps to stem such nonexistent voter "fraud" -- all in an attempt to suppress Democratic votes.

3. The bogus claim of a "voter fraud" crisis has been successfully invoked in many states to withstand initiatives to ease voter registration and, even more prominently, to justify unneeded and damaging "Voter ID" legislation. All of which has the effect of suppressing votes, primarily of Democratic constituencies, while doing very little, if anything, to protect against any actual voter fraud. (See, e.g., the links in the middle of this post to the New York Times, Bob Bauer, hilzoy, Rick Hasen and publius.)

4. Karl Rove and others went further: They decided to use the levers of federal governmental power -- the prosecution power, in particular -- to go after nonexistent voter fraud, and thereby to further suppress voter turn-out in closely contested elections, all in order to enhance Republican electoral prospects. (Simultaneously, other sorts of decisions at DOJ (e.g., pursuant to the Voting Rights Act) were also substantially influenced by partisan electoral considerations.)

5. Until this Administration, White House officials such as Rove would not have been permitted to contact persons in the Justice Department in connection with prosecutorial decisions. But those rules were rescinded by the Bush Justice Department.

6. Rove and other White House officials urged DOJ to bring "voter fraud" prosecutions in many contested states and districts -- and even to do so close to the date of elections, contrary to longstanding DOJ policies.

7. Some U.S. Attorneys -- loyal Republicans all -- after concluding that there was, after all, no basis in fact for bringing such prosecutions, especially not so close to elections, when such prosecutions could have an unwarranted impact on election outcomes, understandably declined to prosecute.

8. The President unceremoniously removed many of those U.S. Attorneys -- not because anyone at DOJ thought they were doing a bad job (everyone of note in DOJ has disclaimed responsibility for having identified these officials for removal), but instead because Rove and his operatives in the White House were frustrated at the prosecutors' unwillingness to bring unwarranted voter-fraud prosecutions. (Other U.S. Attorneys were cashiered for analogous partisan electorial reasons, such as their refusal to bring charges against local Democratic officials, or their peristence in investigating Republican officials.)

9. In order to further ensure that the White House has much greater, unfettered, influence over the machinations of the criminal justice system, the Attorney General determined that personnel decisions at DOJ would no longer be subject to the institutional and professional screens that had long been in place, but would instead be delegated almost entirely to undistinguished, inexperienced young attorneys whose only qualification for being assigned that important responsibility was that they were loyal Republican foot soldiers, unequivocally responsive to the direction of Rove, et al.

10. The attempts by government officials to bring pressure on U.S. Attorneys to bring prosecutions -- or to forego ongoing investigations -- for partisan electoral objectives may well have constituted criminal violations of 18 U.S.C. 1505 ("Whoever corruptly . . . influences, obstructs, or impedes or endeavors to influence, obstruct, or impede the due and proper administration of the law under which any pending proceeding is being had before any department or agency of the United States, . . . Shall be fined under this title, imprisoned not more than 5 years"); and/or 18 U.S.C. 1512(c)(2) ("Whoever corruptly . . . obstructs, influences, or impedes any official proceeding, or attempts to do so, shall be fined under this title or imprisoned not more than 20 years, or both.").

At the very least -- and more significantly -- such efforts constituted a breach of the President's constitutional obligation to "take Care that the Laws be faithfully executed."

* * * *

For the most part, the media have understandably been focused thus far on Point No. 8. But the real heart of the scandal -- the much more important long-term outrage -- is Point No. 4, the abuse of governmental authority for partisan ends.

RELATED:  Gonzales's Harvard Law School classmates write him a letter.  Heh.

In Other Words: Obstruction

Murray Waas has a new story out:

"The Bush administration has withheld a series of e-mails from Congress showing that senior White House and Justice Department officials worked together to conceal the role of Karl Rove in installing Timothy Griffin, a protégé of Rove's, as U.S. attorney for the Eastern District of Arkansas."

TPM has the analysis -- the emails lead:

to the inescapable conclusion that the administration was complicit in attempts to cover up White House involvement in the firings.

***

So what documents are we talking about? The story deals with two separate letters that the Justice Department sent to Congress about the firings.

The first was a January 31 letter to Sen. Mark Pryor (D-AK) assuring him that "not once" had the administration considered using the Patriot Act provision to install Tim Griffin, Karl Rove's former aide, as the U.S. attorney for Little Rock. The provision allowed the attorney general to appoint interim U.S. attorneys indefinitely without Senate confirmation.

Of course, Kyle Sampson had been pushing to use the provision for months -- and had communicated the plan to the White House.

But when it came time to answer questions about it, the White House signed off on a letter saying that they had never contemplated such a thing. And the withheld documents show that Christopher Oprison was the White House official who signed off on the letter -- that's funny because Kyle Sampson had layed out the plan to use the Patriot Act provision to appoint Griffin in an email to Oprison just a month before.

The second letter in the piece is a February 23rd letter to Congress that claimed that Karl Rove hadn't had any role in appointing Griffin. Fittingly, Oprison also signed off on that one -- even though Sampson had written him in an email in December that Griffin's appointment was "important to Karl."

White House spokesman Tony Fratto tells Waas that "Chris did not recall Karl's interest when he reviewed the letter."

But Fratto also says that "We have no record of that letter ever leaving the White House counsel's office." In other words, they never bothered to ask Karl Rove or any one in his office to check whether the statement was true. And they just forgot that Sampson earlier had boasted about Rove's interest. Huh.

UPDATE:  Another bombshell -- Gonzales reveals that Bush and Tony Snow lied about Bush’s role in the sacking of federal prosecutors.

Attorney Purge Updates

This scandal is getting out of control. hard to keep up:

(1) Monica Goodling is now facing a Justice Department investigation for her role in screening career attorneys for party affiliation.

The Justice Department has launched an internal investigation into whether Attorney General Alberto R. Gonzales’s former White House liaison illegally took party affiliation into account in hiring career federal prosecutors, officials said yesterday.

The allegations against Monica M. Goodling represent a potential violation of federal law and signal that a joint probe begun in March by the department’s inspector general and Office of Professional Responsibility has expanded beyond the controversial dismissal of eight U.S. attorneys last year.

The bad news is that this internal DOJ investigation may prevent her from testifying to Congress.  But at least the spotlight is on her, as it should be.

(2)  A top Justice Department official has now been accused of trying to bully fired prosecutors into silence.

In newly released statements, [two dismissed U.S. attorneys] alleged that they were threatened by Deputy Attorney General Paul J. McNulty’s chief of staff immediately before Gonzales testified in the Senate in January.

Paul K. Charlton of Phoenix and John McKay of Seattle said that Michael J. Elston called them on Jan. 17 and offered an implicit agreement of Gonzales’s silence in exchange for their continuing not to publicly discuss their removals. Gonzales testified before the Senate Judiciary Committee the next day and refused to provide details about the firings.

“My handwritten and dated notes of this call reflect that I believed Mr. Elston’s tone was sinister and that he was prepared to threaten me further if he concluded I did not intend to continue to remain silent about my dismissal,” McKay wrote in response to questions from the House Judiciary Committee.

(3) The Senate Judiciary Committee subpoenas Karl Rove's emails.

Also yesterday, the Senate Judiciary Committee issued a subpoena to Gonzales seeking all of Rove’s e-mails in Justice Department custody related to the firings. They include e-mails turned over to Special Counsel Patrick J. Fitzgerald as part of his investigation of the leak of CIA officer Valerie Plame’s identity. The subpoena is the second to be formally served on Gonzales in the probe of the prosecutor dismissals.

The subpoena to Gonzales from Senate Judiciary Chairman Patrick J. Leahy (D-Vt.) demands copies of any e-mails sent by Rove — through either the White House or the Republican National Committee — related to the appointment, performance or replacement of U.S. attorneys and career or political personnel at Justice.

The fact that the emails were sent to the Justice Department makes it hard to assert an executive privilege claim.  Heh.

(4)  Paul Kiel writes about Carol Lam’s firing: “In her written answers to questions from Congress, Lam recounted a conversation with Justice Department official Michael Elston after she was fired in which Elston made it clear to her that she would be gone within ‘weeks’ regardless of the fate of certain cases, and that this order came ‘from the highest levels of the government.’”

"Highest levels of government"?  Doesn't sound like an apt description of Sampson and Goodling, does it.

Secret Order To Politicize DOJ Uncovered

Murray Waas has a fascinating article in the National Review describing a secret order by Alberto Gonzales that delegated unprecedented control over the hiring and firing of senior Justice Department officials--including those who oversee the DOJ criminal division--to Kyle Sampson and Monica Goodling.

This order bypassed the traditional authority given to the deputy attorney general, the associate attorney general, and other senior Justice Department officials to control their own staffs and placed this important authority in the hands of two inexperienced and highly partisan individuals who, by all accounts, worked very closely with the White House.

In other words, Gonzales took himself out of the loop intentionally, allowing the White House’s political office and some DoJ hacks to call the shots.  This puts Gonzales in an awfully awkward position. All that forgetfulness, all the claims that he was only marginally informed make sense, now. But they make sense for the very good reason that Gonzales was marginally informed only after being very well informed that he was about to become very marginally informed. His lack of recall looks all the more pathetic the more deliberate it appears.

And consider this -- Sampson graduated from law school in 1996, and has tried only one criminal case.  Goodling graduate from Pat Robertson's Law School in 1999, after which she became a low-level analyst for the Republican National Committee.  Later she spent three years at the U.S. Attorney's Office in Virginia.  And those two -- Sampson and Goodling -- were handed the keys to the entire justice department of the United States, deciding who would and would not become U.S. attorneys throughout the entire country.

Senator Leahy is not amused.

Comment of Senator Patrick Leahy, D-Vt.,
Chairman, Senate Judiciary Committee
On Reports of Confidential Memo Granting Sweeping Hiring/Firing Authority To DOJ Political Officials
April 30, 2007

"It is disturbing to learn that the Attorney General was granting extraordinary and sweeping authority to the same political operatives who were plotting with the White House to dilute our system of checks and balances in the confirmation of U.S. Attorneys.

"This development is highly troubling in what it seems to reveal about White House politicization of key appointees in the Department of Justice. The mass firing of U.S. attorneys appeared to be part of a systematic scheme to inject political influence into the hiring and firing decisions of key justice employees. This secret order would seem to be evidence of an effort to hardwire control over law enforcement by White House political operatives.

"This memorandum should have been turned over to Senate and House committees as part of requests made in ongoing investigations. I expect the Department of Justice to immediately provide Congress with full information about this troubling decision as well as any other related documents they have failed to turn over to date."

It is truly alarming the lengths to which this White House has gone to politicize our criminal justice system. They apparently have been successful -- the NYT chronicles the partisan pattern of criminal prosecutions.  I wonder how long it will take to undo the institutional damage wrought by this administration.

Goodling's Got Immunity

Now that she won't go to jail, will the graduate of Pat Robertson's Regent University come to Jesus and, you know, tell the truth?

By 21-10, the House oversight committee voted to issue a subpoena to Rice to compel her story on the Bush administration's claim, now discredited, that Iraq was seeking uranium from Africa.

Moments earlier in the committee chamber next door, the House Judiciary Committee voted 32-6 to grant immunity to Monica Goodling, Gonzales' White House liaison, for her testimony on why the administration fired eight federal prosecutors. The panel also unanimously approved — but did not issue — a subpoena to compel her to appear.

Fired prosecutor David Iglesius believes that Goodling holds "the keys to the kingdom" -- i.e., she knows the behind-the-scenes political machinations that led to the politically motivated firing of the U.S. attorneys, as well as the development of the cover story to hide the truth.  Let's hope this fine Christian woman puts her hand on the Bible ans swears to tell the truth.

Gonzales Resignation Watch

I have little to say about this.  By all accounts, he tanked yesterday.  His story was a concoction of "mea culpa" combined with "I'm not responsible" combined with "I don't recall".  Bottom line is that Gonzales is either lying about his role in the U.S. Attorney firings, or he is incompetent in that he was "out of the loop" about the firings.

He was so bad that Republican senators on the committee openly suggested that he should resign.  In fact, he was so bad that one (unnamed) White House people insider said that his appearance before the Senate Judiciary Committee was like "clubbing a baby seal" and that his tesimony was "going down in flames".  Ouch.

The official White House statement given late yesterday is one of unflinching support for Gonzales, but it doesn't take much to see that his resignation is imminent.  I would expect it today, or possibly tomorrow.  There's no way he can survive.

Too bad I'm not a betting man.

UPDATE:  The New York Times is rather blunt about Gonzales's performance yesterday, beginning with:

If Attorney General Alberto Gonzales had gone to the Senate yesterday to convince the world that he ought to be fired, it’s hard to imagine how he could have done a better job, short of simply admitting the obvious: that the firing of eight United States attorneys was a partisan purge.

Mr. Gonzales came across as a dull-witted apparatchik incapable of running one of the most important departments in the executive branch.

and ending with:

We don’t yet know whether Mr. Gonzales is merely so incompetent that he should be fired immediately, or whether he is covering something up.

But if we believe the testimony that neither he nor any other senior Justice Department official was calling the shots on the purge, then the public needs to know who was. That is why the Judiciary Committee must stick to its insistence that Mr. Rove, Ms. Miers and other White House officials testify in public and under oath and that all documents be turned over to Congress, including e-mail messages by Mr. Rove that the Republican Party has yet to produce.

The Dog Ate My Homework

As an attorney who deals with subpoenas and requests for electronic documents on a regular basis, I can tell you that if a private company -- especially one that is required by law or court order to retain documents, emails, and other information -- told the government that it had "mishandled" its email retention system such that business-related emails were now "lost", that company would be in a world of shit.  It would be fined; judges would go apeshit; the proverbial "book" would be thrown at them.  Juries would be instructed by the judge that inferences can be made about the non-preservation of the emails -- i.e., they can (if they want) infer that the emails were intentionally destroyed because they reflected wrongdoing.

So what, then, shall we make of this?

Political advisers to President Bush may have improperly used their Republican National Committee e-mail accounts to conduct official government business, and some communications that are required to be preserved under federal law may be lost as a result, White House officials said Wednesday.

Of the 1,000 White House officials with political duties, 22 — including Karl Rove, the chief political strategist — have Republican National Committee accounts that are supposed to be used only for campaign-related work. But recent revelations that some officials have used those accounts for Bush administration business, including discussions of a plan to dismiss United States attorneys, has prompted a Congressional investigation.

On Wednesday, Scott Stanzel, deputy White House press secretary, said the administration had recently begun its own inquiry, and had concluded that its policy governing political e-mail accounts was unclear, that the White House was not aggressive enough in monitoring political e-mail and that some people who had the accounts did not follow the policy closely enough.

As a result, Mr. Stanzel said, “some official e-mails have potentially been lost.” He said Mr. Bush had told the White House counsel’s office “to do everything practical to retrieve potentially lost messages.”

There is, and should be, a strong presumption of wrongdoing here.

UPDATE:  The email scandal is being compared to the 18-minute gap.

And a Kos diarist thinks he has a good name for this scandal: dogAte.

What SilentPatriot Says

at Crooks & Liars:

LARRY BIRKHEAD IS THE FATHER*

My fellow Americans, our long national nightmare is over. Can we please, please move on to more pressing matters now? Like, say, the Attorney General of the United States being subpoenaed in a scandal that very well may result in his resignation? Please?

*  I told eveybody it wasn't me.  Now do you believe me?

About The Truth

As his testimony before the Senate Judiciary Committee approaches, it looks like Alberto is in deep doo-doo and his cramming sessions are not paying off:

Attorney General Alberto Gonzales has virtually wiped his public schedule clean to bone up for his long-awaited April 17 testimony before the Senate Judiciary Committee—a session widely seen as a crucial test as to whether he will survive the U.S. attorney mess. But even his own closest advisers are nervous about whether he is up to the task. At a recent "prep" for a prospective Sunday talk-show interview, Gonzales's performance was so poor that top aides scrapped any live appearances. During the March 23 session in the A.G.'s conference room, Gonzales was grilled by a team of top aides and advisers—including former Republican National Committee chair Ed Gillespie and former White House lawyer Tim Flanigan—about what he knew about the plan to fire seven U.S. attorneys last fall. But Gonzales kept contradicting himself and "getting his timeline confused," said one participant who asked not to be identified talking about a private meeting.

My mother once told me that telling the truth is always the right thing to do, in part because the truth is easiest to remember*.  Alberto Gonzales, the highest law enforcement person in the country, should know better.

* Okay, I lied.  She didn't really say that, as far as I can recall, but it's the kind of thing she would say.

Tangled Web, And All That

One of the humorous side-stories to the U.S. Attorney purge scandal involves the firing of the U.S. Attorney from the state of New Mexico, David Iglesius.  As former Gonzales chief of staff Kyle Sampson admitted last week, there was no real performance reason to fire Iglesias.   In fact, it’s indisputable at this point that Iglesias was actually fired because he didn’t indict enough Democrats.

But they had to come up with a cover story at the time this scandal broke, so the Department of Justice accused him of absentee landlordism” because he had to take 40 days of annual duty in the naval reserve.

If that's the reason he was fired, then DOJ has a problem: such a dismissal would be a violation of the Uniformed Services Employment and Reemployment Rights Act (USERRA), a federal law that prohibits job discrimination against members of the U.S. military.  In fact, Gonzales himself was promoting the USERRA last summer in an effort make sure reservists and National Guard members didn’t suffer in the workplace when they are called to serve their country.

And now there is a potential investigation into firing Iglesius for that reason.

Newsweek has more.

Sampson Is Screwing Gonzales

I can't watch it live (here's a nice rundown from US News), but the updates I get are pretty cool:

11:37 Update: Schumer's up now for questioning. He wants to know about Gonzales' statements about the process.

Sampson says that there were repeated discussions about the firings, starting in January 2005 through the firings. "I spoke with him every day," Sampson said.

Asked about the November 27 meeting about the firings, Sampson said that Gonzales was present and that he did speak, but that "I don't remember the meeting clearly."

Now we're on to Gonzales' statement that Sampson did not share information about the firing process with senior DoJ officials who subsequently testified to Congress. " I was very open and collaborative in the process," Sampson said. When asked specifically whether Sampson had shared information with the two DoJ officials who testified falsely to Congress about the process, Will Moschella and Paul McNulty, Sampson said that he had.

Schumer: "So the Attorney General's statement is false. How can it not be?" It sounds like that Sampson was about to repeat his line that it was something that wasn't deemed important (the White House involvement in the firing plan), but Schumer cuts him off.

11:44 Update: Schumer's on to the next inaccurate statement, by DoJ spokesperson Tasia Scolinos on March 24 that the AG "did not participate" in the process to select the U.S. attorneyys to be fired. Sampson admits that wasn't an accurate statement.

From E&P:

Specter asked about Attorney General Gonzales' "candor" in saying earlier this month that he was not a part of any discussions on the firings. He asked about the November 27, 2006 meeting "where there were discussions" and Gonzales allegedly attended. Was Gonzales' statement about taking part in no discussions accurate?

"I don't think it's accurate," Sampson said. "He recently clarified it. But he was present at the November 27 meeting."

"So he was involved in discussions in contrast to his statement" this month? Specter asked.

"Yes." Sampson replied.

Sen. Charles Schumer then asked about Gonzales also claiming that he saw no documents on this matter.

Sampson replied: "I don't think it's entirely accurate."

Schumer: "There was repeated discussions??

Sampson: "Yes...at least five."

Schumer then asked if Gonzales was truthful in saying Sampson's information on the firings was not shared within the depaartment.

Sampson: "I shared information with whoever asked."

Schumer: "So the Attorney General's statement is false?"

Sampson: "I don't think it is accurate."

UPDATE:

Too Clever By Half

JMM:

If the president's aides were using RNC emails or emails from other Republican political committees, they can't have even the vaguest claim to shielding those communications behind executive privilege.

Yeah.  I don't see anyway around that.

UPDATE:  The Carpetbagger raises two other issues regarding the White House staffs use of RNC emails:

There’s still the Presidential Records Act to consider. The PRA mandates thorough record-keeping, which Rove & Co. apparently hope to avoid. The law isn’t supposed to be optional.

and also:

As Laura Rozen explained, there are security concerns to consider. Rozen noted earlier this week, that the White House is a huge electronic surveillance target and by announcing that they’re not using their official email accounts anymore, foreign intelligence agencies might “become curious about the 95% of the government’s business that Karl is lobbing outside the system.” Rozen added today:

A reader who has a security role at a federal agency writes, “On the issue of using outside/unofficial e-mail address from official sites, the CIO at [redacted] has expressly forbade the practice for security reasons as it is all too easy to put sensitive information in an e-mail. … Needless to say, hearing that the WH does not mandate that practice and lets [Rove] do 95% of his e-mailing from a blackberry, presumably with access to an unofficial address, is quite shocking. Still find it absolutely amazing that his clearance has not been revoked.”

Good points.

It's Not A Scandal Unless There's A 'Monica' Involved

And now we have one.

Attorney General Alberto R. Gonzales's senior counselor, Monica Goodling, yesterday refused to testify in the Senate about her involvement in the firings of eight U.S. attorneys, invoking her Fifth Amendment right against self-incrimination.

The letter sent by Monica's attorneys explains the reasons why.  But here's the thing: none of the reasons pertain to self-incrimination. 

You can't invoke the privilege because you think the investigation is being conducted in a "partisan" fashion (yet this is one of the "reasons" given). 

You can't invoke the privilege because it may lead to criminal charges against someone else (yet this is one of the "reasons" given). 

The real reason that Monica's lawyer want her to avoid testifying is spelled out thusly:

"The potential for legal jeopardy for Ms. Goodling from even her most truthful and accurate testimony under these circumstances is very real. One need look no further than the recent circumstances and proceedings involving Lewis Libby."

The only problem with that sentence is that Lewis Libby was convicted of NOT giving truthful and accurate testimony.  And he was found guilty -- not by a panel of partisan Democrat congressmen -- but by a jury of ordinary American citizens. 

Now, it may be true that a witness innocent of wrongdoing may well refuse to answer a question not because he fears conviction, but because he fears unfounded prosecution.  (UPDATE: Orin Kerr disagrees).  However, since the risk of "unfounded prosecution" one runs at all times (theoretically at least) the 5th Amendment invocation must be asserted in good faith.  I suggest that this is not made in good faith, since the attorneys invoke Scooter Libby -- a man who was NOT unfoundly unprosecuted according to a jury of his peers.

I suspect what is really going on is that she is afraid to testify, in part because there's hardly a consensus in the White House and DOJ as to what the cover story is for the attorney firings.  Nice of her to want to be a part of the loyal team, but she's toast now anyway.  She might as well save her soul and talk.  It's her only key to salvation.

RELATED:  It's worth noting that the deputy AG testified truthfully last month, and that's how this scandal started.  Of course, he testified about the TRUTH, something which the White House urged him not to do.  For the people in the White House, telling the truth is secondary to preserving their power.

Snowjob

White House Press Secretary Tony Snow, 10/6/06:

Members of Congress have their own oversight obligations. They may proceed as they wish. They’re a separate and co-equal branch of government and I’m not going to tell them what they can and can’t do.

White House Press Secretary Tony Snow, yesterday:

There’s another principle, which is Congress doesn’t have the legislative — I mean oversight authority over the White House. [CNN, 3/22/07]

First, the White House is under no compulsion to do anything. The legislative branch doesn’t have oversight. [MSNBC, 3/22/07]

Congress doesn’t have any legitimate oversight and responsibilities to the White House. [Fox, 3/22/07]

Finally Finally Finally, The U.S. Attorney Firing Scandal Has A Sexual Angle

Arizona U.S. Attorney Paul Charlton was one of the 8 U.S. attorneys fired by the Bush Administration.  The Arizona Republic story raises the question of why he was fired:

Two weeks after Arizona U.S. Attorney Paul Charlton was ordered to give up his post, he sent an e-mail to a top Justice Department official asking how to handle questions that his ouster was connected to his investigation of Rep. Rick Renzi, R-Ariz.

Charlton, one of eight federal prosecutors forced to resign last year, never received a written response….

When the first list of U.S. attorneys targeted for ouster was drafted, Charlton’s name was not on it. But his name was on a subsequent list, drafted in September. Although the Renzi inquiry was not yet public, it is likely the Justice Department was aware of the investigation, said a former U.S. attorney who is familiar with the protocol when a sitting lawmaker is involved.

What happened in the interim?  How did Charlton's name end up on the list of U.S. Attorneys to get fired?

Well, as Max Blumenthal explains, Rep. Rick Renzi (R-Ariz.) was in a competitive re-election race. When evidence of influence-peddling and land deals emerged in September 2006, just weeks before Election Day, Charlton opened a preliminary investigation against the Republican.

And that's when, Kyle Sampson -- Gonzales' chief of staff -- identified Charlton as someone “we should now consider pushing out.”

But wait -- I promised a sex angle.  Just sit tight.

You see, having identified Charlton as someone they wanted to let go, they had to come up with a reason.  They couldn't fire Charlton on the merits, because:

a model of professionalism, Charlton’s office was honored with the Federal Service Award and hailed by the Justice Department as a ‘Model Program’ for its protection of crime victims...

So instead, the administration relied on a Justice Department official named Brent Ward, who insisted that Charlton was “unwilling to take good cases.”

What were these "good cases"?  Here comes the sex angle:

Ward first came to prominence in Utah, where as US Attorney during the Reagan era he cast himself as a crusader against pornography. His battles made him one of the most fervent and earnest witnesses before Attorney General Edwin Meese’s Commission on Pornography; he urged “testing the endurance” of pornographers by relentless prosecutions. Meese was so impressed that he named Ward a leader of a group of US Attorneys engaged in a federal anti-pornography campaign, which soon disappeared into the back rooms of adult bookshops to ferret out evildoers. Ward returned to government last year as the chief of the Justice Department’s newly created Obscenity Prosecution Task Force, where his main achievement has been the prosecution of the producer of the Girls Gone Wild film series.

The appointment of the obscure Ward was a sop to the Christian right. His accomplishments, such as they are, have been symbolic at best. But when a paper trail to support the charge that US Attorneys were deficient in their performance was required to cover the reality of political dismissals, the Justice Department finally discovered an important use for its top porn cop.

Ward badgered the U.S. Attorneys’ office about bringing more pornography cases, none of which had anything to do with child porn, and everything to do regular ol’ adult porn.

Apparently, these are the “good cases” Charlton was unwilling to take.

Of course, this is just a sideshow amusement.  The real bill of particulars against the White House was best summed up by The Left Coaster's Steve Soto:

The truth still remains that a political hit list was drawn up inside the White House to rank these attorneys on their loyalty to Bush and not on their performance; that the rationale for these firings has changed several times as each reason fell apart under scrutiny; that the list of targets changed due to pressure from Republicans around the country on corruption cases and petty personal backbiting inside Justice; that there was an organized effort from the White House to provide misleading testimony to Congress; that the White House wants to avoid at all costs going under oath on this; and that the AG and his senior aides not only mismanaged the department but were willing participants in the White House's efforts to politicize the federal prosecutors.

Document Diving & Latest On Purgegate

A lot of people following the U.S. Attorney Firing Kerfuffle are doing a lot of document diving -- i.e., going through the documents and emails released this week by the DOJ (over 3,000 pages) to look BEHIND what the news will tell you tomorrow.

Time doesn't permit me to review documents myself, but for those interested, the documents are now searchable, thanks to the fine work of the people here.

Meanwhile, it looks like we're headed for a showdown, with the House approving the use of subpoenas to get Rove and Miers on the record, and Bush vowing to fight the subpeonas.  The law is on the House's side, and I hope the Bush people are trying to make an argument regarding executive privileged that failed to carry the day when Nixon tried it in United States v. Nixon.  There, the court was quite clear:

The President’s need for complete candor and objectivity from advisers calls for great deference from the courts. However, when the privilege depends solely on the broad, undifferentiated claim of public interest in the confidentiality of such conversations, a confrontation with other values arises. Absent a claim of need to protect military, diplomatic, or sensitive national security secrets, we find it difficult to accept the argument that even the very important interest in confidentiality of Presidential communications is significantly diminished by production of such material for in camera inspection with all the protection that a district court will be obliged to provide.

Glenn Greenwald has the (very readable) skinny on "executive privilege" -- the kind of post I would write if I had the time and considerably better writing skills.

UPDATE:  How Nixonian can you get?  Looks like the DOJ "document dump" has an 18-day gap.  (For those of you under 30, here's the historical reference)

UPDATE:  CNN's Ed Henry, via Atrios, makes an excellent point:

I think also, another thing to look at, I followed up a question about executive privilege. You heard Tony Snow at the end there saying the president has no recollection of being involved in this decision to fire the US attorneys. So we asked the question then, well why are you citing executive privilege - or at least suggesting you will, and yesterday the president said the principle at stake here is candid advice from his advisers to the president - if the president was not involved in the decision, then how can you cite executive privilege on something he was really not involved in? And Tony Snow basically said, it's a good question and I don't know the answer.

More "Purgegate" Fallout

God, I hate myself for using the -gate suffix.  But I don't know what to call it right now (does anybody?)

Anyway, WaPo has a nice op-ed which stops just shy of calling for Gonzales's head.  My favorite bits:

"I am fully committed, as the administration's fully committed, to ensure that, with respect to every United States attorney position in this country, we will have a presidentially appointed, Senate-confirmed United States attorney," Mr. Gonzales assured the Senate Judiciary Committee in January. Deputy Attorney General Paul J. McNulty has also asserted that the administration, in firing the prosecutors, was not trying to abuse its new authority, slipped into the reauthorization of the Patriot Act, to name interim U.S. attorneys who could serve indefinitely without Senate confirmation. "The attorney general's appointment authority has not and will not be used to circumvent the confirmation process," Mr. McNulty testified. "All accusations in this regard are contrary to the clear factual record."

Mr. Sampson's e-mail messages to the White House belie those assertions.

And the closing graf:

Mr. Gonzales can make self-serving declarations about his belief in "accountability," as he did at a news conference yesterday; he can proclaim his plans to "ascertain what happened here . . . and take corrective actions." Nothing in his record gives any reason for confidence that anything will change in a department under his leadership.

Indeed.

Meanwhile, New Hampshire Senator John Sununu was the first Republican to say that Alberto Gonzales has to go:

Sen. John Sununu of New Hampshire on Wednesday became the first Republican in Congress to call for Attorney General Alberto Gonzales' dismissal, hours after President Bush expressed confidence in his embattled Cabinet officer.

"I think the president should replace him," Sununu said in an interview with The Associated Press.

Sununu, whose father served as Chief of Staff to the other President Bush, is running for re-election in 2008.

That said, I think Chuck Schumer (D-N.Y.) is asking the right questions, specifically:

1. In an email to the White House, Mr. Sampson refers to a “problem” with Carol Lam. What was this “problem” and was Lam’s firing motivated by her investigation into former Congressmen Randy Cunningham and Representative Jerry Lewis?

2. What was the involvement of the President and members of the White House staff on the removal of these eight U.S. Attorneys? (White House spokespeople have portrayed the White House as having only limited involvement in the plan to dismiss these U.S. attorneys. Yet the documents released to the Senate Judiciary Committee clearly show that the idea of removing a group of U.S. attorneys originated in early 2005 with Harriet E. Miers, then serving as the President’s Counsel.)

3. Who at the Department of Justice was responsible for inserting a line into the USA PATRIOT Act in March 2006 that allows the appointment of interim U.S. Attorneys without Senate approval? Did the President know of or approve this effort?

4. Was Karl Rove or Ms. Miers involved in lobbying for the appointment of Tim Griffin as U.S. Attorney in Arkansas?

5. When and why did U. S. Attorney David Iglesias become a target for removal? Was President Bush involved in that decision?

TPMMuckraker has the actual wording of the questions.

UPDATE:  Not related to "Purgegate", but certainly bad news for Gonzales, is the story breaking out by Murray Waas.  Last year, there was an internal DOJ investigation.  When Gonzales realized that the investigation might focus on him, he consulted Bush, who put an end to the whole investigation.

UPDATE:  Another "Purgegate" scandal spin-off.  As you may or may not know, the DOJ publicly released e-mails that were sent to and from the DOJ last year, regarding the "purging" of U.S. attorneys.  Some eagle eyes noticed something: the work-related emails of Scott Jennings, Karl Rove's deputy chief of staff, were to and from a non-White House domain.  Rather, they were to a domain owned by the Republican National Committee.  This is illegal, folks, because it is designed to prevent emails from being discovered through, oh, future investigations and Freedom of Information Act requests.

Remember, the government is OF the people, which is why we encourage an open government.  Sure, sometimes the government can't be open about EVERYTHING (i.e., matters involving national security).  But the default position is "open".  Just like shredding documents, hiding their emails is a biiiiiiiig no-no.  More details here.

Gonzales Uses The Passive Deflective Voice

"Mistakes were made", he says, in reference to the US Attorney firing scandal.

Weasel words, if I ever heard them.

Of course, in the same press conference, Gonzales says he stands by the firings.  But he also fired the guy who did the firings, his chief of staff.

So, all in all, it's a little hard to parse.  If I had to guess, Gonzales is saying that the way they were fired was a "mistake", but the fact that they were fired (for partisan political reasons) is okay.  Unfortunately, nobody is really complaining about the firing process, but the apparenbt political motivations of the firings themselves.  The most illuminating example was the firing of Carol Lam, the U.S. Attorney in northern California, who received excellent evaluations, but who had successfully prosecuted Republican congressman Randy Cunningham.  Process be damned -- why was she fired?

Further troublesome for Gonzales is that when he testified before Congress in January, he was adamant that the Administration had no intention of invoking the provision of the Patriot Act allowing them to replace U.S. Attorneys absent congressional input:

And so let me publicly sort of preempt perhaps a question you’re going to ask me, and that is: I am fully committed, as the administration’s fully committed, to ensure that, with respect to every United States attorney position in this country, we will have a presidentially appointed, Senate-confirmed United States attorney.

To mix metaphors, Gonzales' press conference was an attempt to thread a needle -- something that is impossible to do when you're walking on thin ice.

I seriously think his days are numbered.

UPDATE: According to this morning's Times, The White House is turning on him:

With Democrats, including the Senate majority leader, Harry Reid of Nevada, insisting that Mr. Gonzales step down, his appearance underscored what two Republicans close to the Bush administration described as a growing rift between the White House and the attorney general. Mr. Gonzales has long been a confidant of the president but has aroused the ire of lawmakers of both parties on several issues, including the administration's domestic eavesdropping program.

The two Republicans, who spoke anonymously so they could share private conversations with senior White House officials, said top aides to Mr. Bush, including Fred F. Fielding, the new White House counsel, were concerned that the controversy had so damaged Mr. Gonzales's credibility that he would be unable to advance the White House agenda on sensitive national security matters, including terrorism prosecutions.

I really think there's a serious estrangement between the White House and Alberto now," one of the Republicans said.

UPDATE:  Yup, I was right:

Bush says the problem wasn't with the sackings, but with the unclear way Justice and Alberto explained them to Congress. The fact that he used the Patriot Act for political rather than national security reasons to get around Congress doesn't seem to trouble him.

To Bush, they simply didn't spin it well enough.

Prosecutor Firing Scandal Widens

Background here.  [UPDATE: An even better background -- in the form of a timeline]

And this past week, Attorney General Gonzales denied that there was any political involvement relating to the firings of the U.S. Attorneys.

But today we learn differently:

The White House was deeply involved in the decision late last year to dismiss federal prosecutors, including some who had been criticized by Republican lawmakers, administration officials said Monday.

"Deeply involved"?  What does that mean, New York Times?  Perhaps WaPo can illuminate:

The White House suggested two years ago that the Justice Department fire all 93 U.S. attorneys, a proposal that eventually resulted in the dismissals of eight prosecutors last year, according to e-mails and internal documents that the administration will provide to Congress today

All 93?!? Wow!

Last October, President Bush spoke with Attorney General Alberto R. Gonzales to pass along concerns by Republicans that some prosecutors were not aggressively addressing voter fraud, the White House said Monday.

So, it seems there was political involvement, going right to the top of the White House.

By the way, "voter fraud" = Democrats voting.  Seriously.  The reason why prosecutors refused to go after "voter fraud" was simply because there was no evidence of it.  Let's go to Josh Marshall on this one:

The very short version of this story is that Republicans habitually make claims about voter fraud. But the charges are almost invariably bogus. And in most if not every case the claims are little more than stalking horses for voter suppression efforts. That may sound like a blanket charge. But I've reported on and written about this issue at great length. And there's simply no denying the truth of it. So this becomes a critical backdrop to understanding what happened in some of these cases. Why didn't the prosecutors pursue indictments when GOP operatives started yakking about voter fraud? Almost certainly because there just wasn't any evidence for it.

Yup.

Okay.  Back to the news coverage:

Senator Pete V. Domenici, Republican of New Mexico, was among the politicians who complained directly to the president, according to an administration official.

The president did not call for the removal of any specific United States attorneys, said Dana Perino, a White House spokeswoman. She said she had “no indication” that the president had been personally aware that a process was already under way to identify prosecutors who would be fired.

But Ms. Perino disclosed that White House officials had consulted with the Justice Department in preparing the list of United States attorneys who would be removed.

Hmm.  Who woud that White House official be, I wonder?

But the documents and interviews indicate that the idea for the firings originated at least two years ago, when then-White House counsel Harriet E. Miers suggested to {Gonzales Chief of Staff Kyle] Sampson in February 2005 that all prosecutors be dismissed and replaced.

Harriet.  I could have guessed.

WaPo's coverage also contains some rather cold-blooded emails between Miers and Sampson:

Sampson, Sept. 7, 2006: "I am only in favor of executing on a plan to push some USAs out if we really are ready and willing to put in the time necessary to select candidates and get them appointed. It will be counterproductive to DOJ operations if we push USAs out and then don't have replacements ready to roll immediately. I strongly recommend that as a matter of administration, we utilize the new statutory provisions that authorize the AG to make USA appointments. [By avoiding Senate confirmation], we can give far less deference to home state senators and thereby get 1.) our preferred person appointed and 2.) do it far faster and more efficiently at less political costs to the White House."

Miers: "Kyle thanks for this. I have not forgotten I need to follow up on the info. But things have been crazy."

And then:

On Dec. 7, Miers's deputy, William Kelley, wrote that Domenici's chief of staff "is happy as a clam" about Iglesias.

A week later, Sampson wrote: "Domenici is going to send over names tomorrow (not even waiting for Iglesias's body to cool)."

Sampson has resigned "after acknowledging that he did not tell key Justice officials about the extent of his communications with the White House, leading them to provide incomplete information to Congress."  That means what it means -- that Justice officials were not telling the truth to Congress, and Sampson is the fall guy.

[UPDATE:  The NYT has a profile on Sampson, a young ambitious Mormon lawyer who became "the fox in charge of the henhouse".  Key line: "In 2002 Mr. Sampson told the Brigham Young University news service that he admired Mr. Bush because the president recognized that politics and religious beliefs could not be separated."  All in all, he sounds a lot like the character portrayed by Patrick Wilson in "Angels In America"]

What does this all mean?

Well, look -- it's true.  U.S. Attorneys, like all government employees, serve at the pleasure of the President.  But that's not the beginning and end of the analysis.  U.S. attorneys are servants of the people, and must be allowed to do their jobs without political pressure.  This was a situation where competent U.S. Attorneys (many of them Republican, by the way) were relieved of their jobs for failing to prosecute Democrats (and only Democrats).  That, without any question, is an abuse of the legal system for political gain (or more accurately, firing people for refusing to use the legal system for political gain).

Josh Marshall again puts the final thought down:

As has happened so many times in the last six years, the maximal version of this story — which seemed logical six weeks ago but which I couldn’t get myself to believe — turns out to be true. Indeed, it’s worse. We now know that Gonzales, McNulty and Moschella each lied to Congress. We know that the purge was a plan that began at the White House — and it was overseen by two of President Bush’s closest lieutenants in Washington — Miers and Gonzales.

Yup.  Stay tuned. This is shaping up to be a very serious scandal.  Jophn Singer agrees:

For the first time in the last six years, there is now direct proof, documentary proof, that could implicate George W. Bush in some of the widespread impropriety within his administration. And though the Bush White House may believe in the at best controversial axiom that if the President does it, it's not illegal, there is more than enough precedent in American history for holding a President accountable for his own actions.

So although Kyle Sampson, who did command some power as chief of staff in the Department of Justice, has now resigned, this is only the beginning of the bloodletting within the Bush administration over this scandal. Before too long, I would be surprised if higher ups (and I do mean higher ups, not higher up) are not also relieved of their positions in the hopes of salvaging the rest of George W. Bush's term in office.

UPDATE:  Moments ago--

Attorney General Alberto Gonzales has "either forgotten the oath he took to uphold the Constitution or doesn't understand that his duty to uphold the law is greater than his duty to protect the president," Sen. Charles Schumer, D-N.Y., just told reporters on Capitol Hill.

UPDATE:  Gonzales to hold press conference at 2:00.

UPDATE:  Raw scandal docs (incl. the emails) available here.

The Latest Bush Scandal

If you're not up on the newest scandal involving the Bush Administration, here's a primer from The New Republic:

Senators at a Judiciary Committee hearing Tuesday tried to get to the bottom of whether the Bush administration inappropriately fired eight federal attorneys for political reasons.

If so, the GOP plan has backfired: at least two Republican lawmakers could be mired in scandal, and the administration, having lost eight faithful and proficient public servants, finds itself in another PR disaster.

The reasons for the firings have continued to evade the former attorneys, as well as lawmakers. There is "no accountability in the Department of Justice," said Sen. Patrick Leahy, chairman of the Judiciary Committee. Instead, he said, there has been a "series of shifting explanations and excuses from the administration."

"Not since the Saturday Night Massacre have we witnessed anything of this magnitude," Leahy said, referring to the series of resignations and a dismissal during Watergate.

DOJ initially claimed the firings were performance related. Then it came out that seven of the eight attorneys had received glowing performance reviews. Now the administration claims that they did not meet certain department priorities.

The latest rationale seemed "awfully convenient" to Sen. Russ Feingold and the testifying attorneys.

"Why would I be a political liability when just a few years ago I was a political asset?" David C. Iglesias, the former U.S. Attorney for the district of New Mexico, said he wondered after his dismissal. He is convinced that his forced resignation was not performance related.

Carol Lam, the former U.S. Attorney for the Southern District of California, spoke of her success in meeting the administration's expectations for immigration trials. "Our immigration trial rate more than doubled from 2004 to 2005," she said.

When she inquired why she was fired, she was told by the DOJ that they "didn't think that information would be useful to me."

The unstated reason may have been that Lam, like four of her fellow prosecutors, were leading corruption investigations into Republicans at the time of their dismissal.

Prosecutors looking into instances of Democratic corruption, like Iglesias of New Mexico, were pressured by GOP lawmakers to produce indictments before the November elections. Rep. Heather Wilson, who found herself in a tight re-election race, asked Iglesias on Oct 16, "What can you tell me about sealed indictments?" Sen. Pete Domenici asked him: "Are these going to be filed before November?" When told no, Domenici replied, "I'm sorry to hear that."

"I felt sick afterwards," said Iglesias. It now appears that both Wilson and Domenici violated Congressional ethics rules by pressuring a prosecutor in an ongoing legal investigation.

The plot gets even thicker inside Congress. Ed Cassidy, the chief of staff to Washington Rep. Doc Hastings, called dismissed prosecutor John McKay of Seattle to inquire about an investigation into voter fraud in the 2004 gubernatorial election. McKay said he cut the call short. In February 2005, Hastings became Chairman of the House Ethics Committee. Cassidy is now a top staffer to House Majority Leader John Boehner.

Yesterday's hearings deserve to be the first of many. It's becoming more and more obvious that attorneygate reaches into the upper echelons of Congress and the administration.

I have a feeling we will be hearing more about this in the weeks and months to come.