Quick overview of US attorney situation

March 21, 2007 by barbara

by barbara with an assist from LeftyMN

Innocent people are not afraid to testify under oath and in public.

A Clothesline reader asked this morning why the U.S. attorney firings are worthy of so much flapdoodle (my word, not the reader's). After all, hasn't this been de rigueur throughout recent presidential history? Don't U.S. attorneys serve at the pleasure of the president, as Bush is so fond of reminding us? My first impulse was to blow off the reader inquiry. "Well, for Pete's sake, everyone knows that . . . ." My inability to easily finish that sentence is certainly not because there isn't anything to say, but rather because there is so much. A whole lot more!

This is a mega-micro issue in a monstrously macro pattern of lies, deceit and abuse of executive power. And while Bush apologists point to the fact that executive privilege has been invoked by other presidents (most notably Bill Clinton), I believe it is safe to say that none has gone so far with executive smoke screening and butt covering as George "Signing Statements" Bush.

Adam Cohen of the New York Times has written extensively about the U.S. attorney situation. In February, he wrote:

U.S. attorneys have enormous power. Their decision to investigate or indict can bankrupt a business or destroy a life. They must be, and long have been, insulated from political pressures. Although appointed by the president, once in office the are almost never asked to leave until a new president is elected.

The Congressional Research Service has confirmed how unprecedented these firings are. It found that of 486 U.S. attorneys confirmed since 1981, perhaps no more than three were forced out in similar ways '" three in 25 years, compared with seven in recent months.

It is not just the large numbers. The firing of H.E. Cummins III is raising as many questions as Ms. (Carol) Lam's. Mr. Cummins, one of the most distinguished lawyers in Arkansas, is respected by Republicans and Democrats alike. But he was forced out to make room for J. Timothy Griffin, a former Karl Rove deputy with thin legal experience who did opposition research for the Republican National Committee. (snip)

Three theories are emerging for why these well-qualified U.S. attorneys were fired '" all political, and all disturbing.

1) Helping friends. Ms. (Carol) Lam had already put one powerful Republican congressman in jail (Duke Cunningham) and was investigating other powerful politicians. The Justice Department, unpersuasively, claims that it was unhappy about Ms. Lam's failure to bring more immigration cases. (snip)

2) Candidate recruitment. U.S. attorney is a position that can make headlines and launch political careers. Congressional Democrats suspect that the Bush administration has been pushing out long-serving U.S. attorneys to replace them with promising Republican lawyers who can then be run for Congress and top state offices.

3) Presidential politics. The Justice Department concedes that Mr. Cummins was doing a good job in Little Rock. An obvious question is whether the administration was more interested in his successor's skills in opposition political research . . . in time for the 2008 elections. (snip)

The politicization of government over the last six years has had tragic consequences '" in New Orleans, Iraq and elsewhere. But allowing politics to infect U.S. attorney offices takes it to a whole new level. Congress should continue to pursue the case of the fired U.S. attorneys vigorously, both to find out what really happened and to make sure that it does not happen again.

Well. That's a mighty fine start.

LeftyMN reminded me that prior to 2006, incoming presidents (and presumably not those arguably elected for a second term) could (and sometimes did) replace all 93 U.S. attorneys, BUT the new appointees came under the Senate's scrutiny prior to approval.

In 2006, Republican Sen. Arlen Specter reported that an "overzealous staffer" inserted a clause into the Patriot Act revision that removed the requirement for Senate oversight of attorney appointments. It was reported that Specter didn't know what his aide had done. If true, which seems unlikely, it leaves LeftyMN musing about Senators who vote for things they haven't read.

The whole U.S. attorney thing came to a head when David Iglesias, a New Mexico U.S. attorney, was contacted just before the November 2006 election by Republicans Pete Domenici and Heather Wilson, who were pressing for action on Democratic voter fraud in that state.

As LeftyMN reminds us, "The Department of Justice is not a fiefdom of the GOP. It is the legal administrative and enforcement division of the Executive branch and the U.S. government as a whole. While policies of law enforcement might be open to debate, the actions of charging and prosecuting any wrongdoing is supposed to be devoid of partisan intent." Yup. Pretty much.

A Cohen column early this week suggests that, based on what is known, it is quite possible that the White House, DOJ officials and members of Congress may have violated 18 U.S.C. 1501-1520, the federal obstruction of justice statute:

Some crimes that a special prosecutor might one day look at:

1. Misrepresentations to Congress. The relevant provision, 18 U.S.C. 1505, is very broad. It is illegal to lie to Congress, and also to "impede it in getting information. (snip) The administration appears to be trying to place all of the blame on Mr. Gonzales's chief of staff, Kyle Sampson, who resigned after reportedly failing to inform top Justice officials about the White House's role in the firings. If Mr. Sampson withheld the information from (Deputy Attorney General) Mr. McNulty, who then misled Congress, Mr. Sampson may have violated 1505. (snip) Congress will be looking for evidence that Mr. Gonzales and Mr. McNulty knew that what they told Congress was false or misleading. (snip)

2. Calling the prosecutors. As part of the Sarbanes-Oxley reforms, Congress passed an extremely broad obstruction of justice provision, 18 U.S.C. 1512 (c), which applies to anyone who corruptly "obstructs, influences, or impedes any official proceeding, or attempts to do so," including U.S. attorney investigations.

David Iglesias . . . says Senator Pete Domenici . . . called him and asked whether he intended to bring indictments in a corruption case against Democrats before last November's election. Mr. Iglesias said he "felt pressured" by the call. (snip)

3. Witness tampering. 18 U.S.C. 1512 (b) makes it illegal to intimidate Congressional witnesses. Michael Elston, Mr. McNulty's chief of staff, contacted one of the fired attorneys, H. E. Cummins, and suggested, according to Mr. Cummins, that if he kept speaking out, there would be retaliation. Mr. Cummins took the call as a threat, and sent an e-mail message to other fired prosecutors warning them of it. (snip)

4. Firing the attorneys. United States attorneys can be fired whenever a president wants, but not, as 1512 (c) puts it, to corruptly obstruct, influence, or impede an official proceeding.

Now, it has been discovered (by a blog commenter, by the way) that the 3,000 page e-mail document released by the DOJ has an 18-day gap from November 15 to December 4, 2006. Parsley, sage, Rosemary . . . .

This must surely be enough (more than enough, perhaps) to chew on for now.

I hope this helps you ramp up your sense of urgency about taking to the phones and keeping a fire built under the Senate Judiciary Committee. People who are afraid/reluctant to testify publicly, under oath, with scrupulous transcription (no gaps) of testimony have Big Something to hide. I have a hunch this is only the tip of the (melting) iceberg.

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Peter (not verified) | March 21, 2007 - 7:34pm

I am racing to the phone as I type.....NOT !


Jeff (not verified) | March 22, 2007 - 9:21am

Political appointments are nothing new. The flap is Gonzalez telling Congress, under oath, that it wasn't political, when it clearly was. We accept political appointments, smarmy as they are. We don't accept lying under oath. For that, Gonzalez will soon be unemployed. Once again, a staffer takes a fall for his commander.


Peter (not verified) | March 22, 2007 - 6:11pm

Once again, a staffer takes a fall for his commander.

I'm sorry, did you mention Webster Hubbel?

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