Patterico's Pontifications

3/15/2007

The Actual Text of the E-mails Provides Further Support That the U.S. Attorney Firings Were Not Motivated by a Desire to Affect Political Investigations

Filed under: General — Patterico @ 12:00 am



U.S. Attorney Carol Lam was on a list to be fired months before the Randy “Duke” Cunningham scandal even broke.

One of the fired U.S. Attorneys wouldn’t prosecute illegal re-entry cases until the illegal alien had been apprehended 13 times after his original deportation.

These are things I learned reading the entire set of released e-mails regarding the firing of the U.S. Attorneys. These e-mails confirm my conclusion from yesterday: the media is manufacturing a phony scandal out of these firings, and piggybacking it onto the genuine scandal of the Justice Department’s misleading testimony to Congress about the responsibility for the firings. If these e-mails are given a fair reading, they support the idea that U.S. Attorneys were pushed out largely for legitimate reasons relating to the performance of the USAs in question.

For example, the e-mails make it crystal clear that Lam was fired over lax border enforcement and not political investigations. An Appointment Summary from February 24, 2005 (see Set 1) includes Lam’s name on the list of potential people to be cut — months before June 2005, when the Randy “Duke” Cunningham scandal first broke.

Did the Administration look into a crystal ball and foretell the Cunningham scandal? Do the lefties now think Bush has paranormal powers?

(The lefties are sticking to their story, though, advancing an argument that can be summarized as follows: “Ahem. We are not letting the facts get in the way of our very fervent beliefs. Thank you.”)

Some of the U.S. Attorneys’ failings are actually quite stark. As I mentioned yesterday, what jumped out at me was the apparent concern that the Administration showed for border enforcement, and the egregious way in which some USAs were failing in this area. I was particularly struck by one e-mail from Set 3, which is worth quoting at some length, because it shows what the Bushies were up against in trying to get something done in border districts. The e-mail is from Robert Jacobs to Rachel Brand, with cc’s to several other people, and it begins:

Rachel –

Congressman Lamar Smith is concerned that the Administration’s policy is to only prosecute aliens once they have been caught entering the country multiple times. Specifically, Smith cites Laredo, where he claims illegal aliens are apprehended and removed eight times before finally being prosecuted.

When I was in Phoenix with Jon, we met with USA Paul Charlton. Charlton told us that his office didn’t prosecute illegal aliens until they were apprehended 13 times (after the initial removal order). His exceptions to that “policy” were: aliens with aggravated felonies; alien smugglers with 12 or more people; and aliens who cross the border illegally with children not their own.

No, that’s not a typo. It says “13 times.” Illegal re-entry prosecutions required 13 apprehensions after the initial removal order.

Jumpin’ Jehoshaphat, Batman!

If that doesn’t amaze you, you’re beyond being amazed.

Picture an illegal alien who smuggled 10 people into the country, and who had already been apprehended and deported 12 times, since his original deportation. Under USA Charlton’s policy, that person would not qualify for prosecution under the illegal re-entry law.

Are you really going to criticize the Administration for doing something about that?? Because concerns like these appear to have supported the firings of more than one nominee, including Lam and Charlton. That seems like a good reason to me.

It’s easy for people to be cynical about this issue, given the Administration’s seeming laxity towards illegal immigration. But if you’re tempted to be cynical, I encourage you to read the e-mails. If you bother to sit down and pore through them, as I have, you will clearly see that they are not intended as a whitewash for public consumption. There is a level of frankness in the tone of the e-mails that shows that the authors never expected them to be public. In fact the disclosure of these e-mails is probably going to have a chilling effect on the candor of future e-mails sent within the Executive Branch — a candor that is sometimes necessary to get things done. I’m surprised Bush didn’t invoke executive privilege.

By the way, I am less impressed by the rationale that USAs Charlton and Bogden were too soft on obscenity. I actually praise these USAs for de-emphasizing obscenity prosecutions. This is about the lowest priority imaginable, when we have serious issues of terrorism to deal with. If anyone wants to line up to whack Bush across the skull for pushing out USAs who don’t care about obscenity prosecutions, show me where the line is, and I’ll get in it right now.

But this still constitutes nothing more than the Administration setting priorities — albeit (in this instance) priorities with which I disagree. That’s a far cry from the accusations of political hackery that the Democrats are making. I’m just not seeing the evidence for that in these e-mails.

A reading of the e-mails provides context for some of the revelations in recent newspaper articles. For example, many newspapers — including the Los Angeles Times — took special care to quote the e-mail that proclaimed that Sen. Domenici was “happy as a clam” upon being told of the ouster of USA Iglesias, whom Domenici had inappropriately phoned about a pending case. Out of context, there is an implicit suggestion that Iglesias was ousted at the behest of Domenici, due to displeasure over the handling of one politically charged case.

But in context, matters look different.

It turns out that the architects of the firings had drafted a specific plan for breaking the news of the firings to the USAs and the Senators of their home states. The idea was to make simultaneous phone calls to everyone. A script was provided to deal with objections. Afterwards, officials contacted people within the offices of the home Senators to see how the news was going over.

It turned out there were different reactions. For example, Sen. Ensign of Nevada was upset about Bogden. He wondered why the office was being left in the hands of an “interim” USA when previous nominations had been quickly confirmed. Why not just leave the office in the hands of the capable Bogden? was the question from Sen. Ensign’s office.

By contrast, reports came back, Sen. Kyl was fine with the firing of a U.S. Attorney in his state. And Domenici was “happy as a clam” and eager to submit names for replacements.

Viewed in context, the comment about Domenici was just another report of several on the issue of how the home Senators were reacting to the news. This doesn’t mean that Domenici was responsible for the firing of Iglesias. As I said yesterday morning: “These e-mails show an (amused) awareness that Domenici had been unhappy with Iglesias — but the e-mails are not evidence that Domenici’s unhappiness had any effect.” I think it’s more likely that Iglesias’s failures in the area of voter fraud, which I discussed yesterday morning, were behind his ouster.

This is not to say that everything in the e-mails is innocent. If I were a Democrat, I’d follow up on two things:

First, there is one e-mail (in Set 2) in which Sampson tells Harriet Miers:

Let me know when you have read this; I have one follow up item I would want to do over the phone.

The natural interpretation of this language is: I have one item that is too hot to commit to paper. If I were a Democrat, I’d subpoena Sampson and Miers and ask them what that was.

The second item concerns Sampson’s plan to keep Tim Griffin on as an “interim” USA for the rest of the Bush Administration, by lying to Congress about his status as an interim, and pretending to be interested in getting Senate confirmation for a permanent replacement. Sampson says the Administration should “run out the clock” — and adds:

All of this should be done in “good faith,” of course.

When someone puts the phrase “good faith” in quotes, you should watch your back.

This is undoubtedly the sort of thing that led to Sampson’s sudden desire to spend more time with his family. Don’t be surprised if the Democrats decide to further investigate who was in on this plan to lie to Congress.

The deception to Congress is the single most disturbing aspect of this whole affair. And, to be sure, that dishonesty may well be an attempt to disguise truly nefarious actions in the firings of these U.S. Attorneys. But if that’s the case, there’s almost zero evidence of it in the e-mails — and there’s plenty of evidence to contradict that theory.

P.S. I encourage readers concerned about this topic to read them. Here are the links, one more time:

UPDATE: The L.A. Times has outrageously misstated the facts on the timing of the Lam targeting. Details here.

UPDATE x2: A commenter makes the point that, due to limited resources, U.S. Attorneys’ offices must enact guidelines that limit prosecution of certain large-volume felonies, like the illegal re-entry cases. Therefore, they say, it was the Administration who failed — by not providing sufficient resources. I think this is a potentially very valid point. However, if it gets to the point where an office won’t prosecute illegal re-entry cases unless there have been 13 subsquent apprehensions, then a U.S. Attorney has two duties: 1) reprioritize so that illegal immigration cases get a higher priority, and 2) make a lot of noise about the lack of resources. If the border USAs did this and were fired anyway, that would be one thing. In the case of Carol Lam, she made a conscious decision to deprioritize immigration cases — in San Diego. I’m sorry, but that’s inexcusable.

32 Responses to “The Actual Text of the E-mails Provides Further Support That the U.S. Attorney Firings Were Not Motivated by a Desire to Affect Political Investigations”

  1. GWB was seen eating a large ham sandwhich on ryebread with french mustard.

    The Whitehouse regretted that there were no emails to be released but his choice of lunch had nothing to do with his current policies

    EricPWJohnson (695c44)

  2. #1 Eric, are you willing to believe it just because GWB said it? What we need is a congressional hearing on why the mustard he used was ‘french’. There’s something very sinister going on with that lunch.

    How many bites did he take and when did he take them? So many unanswered questions.

    Kevin (e89cee)

  3. ‘rye’ is an unvarnished rumor started by the democrats!

    Lord Nazh (d282eb)

  4. I’m waiting for the “times” to tell me what to think

    EricPWJohnson (695c44)

  5. One thing the administration needs to do is clarify what it means when it denies the firings were “political” in nature.

    For instance, it would be “political”, and improper, for the Administration to instruct the US Attorneys to ignore Republican voter fraud but vigorously pursue Democratic voter fraud — and then fire Attorneys that fail to follow this order.

    But this does not mean that any and all orders given by the Administration to the US Attorneys constitutes improper “political” influence. The Administration should state that demanding compliance with the Administration’s priorities is not “political”, it is a proper exercise of the rights of the Executive Branch. Nor is it “political” to expect a degree of loyalty to the Administration, in the sense of publicly supporting the Administration’s positions and policies.

    Nor is it necessarily “political” to want to replace an existing US Attorney with a favored staffer. If the staffer is favored because they are extremely competent and hard working, it may be entirely rational to want to advance their career by moving aside someone of lesser talent at the end of their appointed term.

    The Administration should distinguish between these things and make clear what it considers “political” versus the proper exercise of its authority.

    The Democrats are trying to manufacture a scandal by cashing in on the cynical view that all Executive Branch actions aimed at controlling the criminal justice system are inherently “political” and therefore improper — but this view is false and the Administration needs to say so.

    Michael Smith (b8378c)

  6. And it seemed ok when Reno fired every single US Attorney when she took her posting…

    Why is it an issue now to fire a handfull of people who got their jobs during the current administration?

    Scott Jacobs (90eabe)

  7. Melissa McEwan, the beautiful blogmistress of Shakespeare’s Sister, wrote the liberal fantasy:

    Let’s assume that within mere days, Alberto Gonzales will either resign or be fired. With whom would you replace him?

    Be serious, or be silly…

    I suggested that if John Ashcroft won’t take the job again, that the appointment should go to our esteemed host!

    Dana (3e4784)

  8. Once again, the incompetent Bush Administration has allowed a rather routine matter to blow up into a scandal.

    Rather than have its act together, making sure everybody was on the same page and making sure the announcements were consistent with reality, we were treated to more examples of political ineptness, of the right hand contradicting the left hand, of the right hand having to retract its own statements. It’s a shame they aren’t smart enough to know that it just isn’t a good idea, for example, for Gonzales to tell Congress one thing at the same time his Chief of Staff is crowing about doing the exact opposite. This could have been a non-story on Day Two… but, no, the Bush Administration botched this, just like they’ve botched so many other matters.

    When will they learn it is silly to keep giving ammunition to the other side?

    steve sturm (40e5a6)

  9. Dana-

    I second the motion.

    MD in Philly (3d3f72)

  10. I have to partially agree with Steve here…

    It’s like the Clampets are running the show. Can no one run damage control?

    *I* could do a better job at handling this sort of crap, and I’m an idiot…

    And Patterico for USAG!!!

    Scott Jacobs (90eabe)

  11. “Picture an illegal alien who smuggled 10 people into the country, and who had already been apprehended and deported 12 times, since his original deportation. Under USA Charltons policy, that person would not qualify for prosecution under the illegal re-entry law.”

    As a former federal prosecutor in a border district under the Clinton administration, I can tell you that given the volume of cases, such policies are necessary otherwise the workload would be unworkable. If Congress and the Administration wants more prosecutions, hire more AUSAs (and pay them better; many state prosecutors make substantially more).

    Regardless, the scenario above assumes exceptions to policies are not made. Having been an AUSA, albeit some time ago, exceptions to such policies are made in appropriate cases. One could ask whether Main Justice was being realistic regarding their expectations given their priorities and current staffing levels. At the end of day the U.S. Attorney has to manage the office, its day to day, and handle personnel assignments. Main Justice has the luxury of complaining about the compromises that must be made.

    [You have a good point. I’ll update the post tonight to reflect it. — P]

    David (af8458)

  12. Web Reconnaissance for 03/15/2007…

    A short recon of what’s out there that might draw your attention….

    The Thunder Run (59ce3a)

  13. Antidote to U.S. Attorney firing hysteria is, appropriately, the actual evidence…

    My pop quiz yesterday, while intended to be educational for non-lawyers who didn’t know much about where U.S. Attorneys fit in the federal justice system, was also intended to explain why my main reaction to the scandal about the firing of seven of th…

    BeldarBlog (72c8fd)

  14. Purely verbal obscenity? Or pornography?

    Beldar (24e978)

  15. This doesn’t change the fact that, contrary to Gonzales’ testimony before Congress, the JD was attempting to keep appointed lawyers in place without congressional approval. If Gonzales did know about that, he committed a felony, and if he didn’t, then he’s the most incompetent administrator I’ve heard of in a while.

    Whether the original lawyers were canned for political purposes aside (something that is far from clear IMHO), there is still that fact that Gonzales might have committed perjury to consider. Not to mention that Pete Dominici and Heather Wilson were contacting lawyers who were investigating their political opponents.

    Russell (a32796)

  16. “The Actual Text of the E-mails Provides Further Support That the U.S. Attorney Firings Were Not Motivated by a Desire to Affect Political Investigations”

    Yes, and the use of domain names from the RNC provides conclusive proof that they were only trying to lighten the burden on the WH mail server.

    Tools for scandal.

    Asinistra (ee4de5)

  17. Patterico writes:

    “…the e-mails make it crystal clear that Lam was fired over lax border enforcement and not political investigations.”

    LIKE HELL THEY DO!!

    Did it ever cross your mind, Patterico, that disatisfaction over Ms. Lam could have arisen from both this alleged “lax border enforcement” AND the fact that she had gone after corrupt Republicans??? Indeed, one might well reasonably argue that the latter possible reason carries more weight than the former, given that months after this alleged “lax border enforcement” she was still on the job, but got fired a short while before the CIA’s no. 3 guy, Dusty Foggo and some defense contractor were indicted.

    Patterico makes a big deal about a so-called target list created way back sometime in 2005. But when exactly were Ms. Lam and the other 7 attorneys fired? Wasn’t it like January 2007??? And what proportion of those 23 on this list actually wound up getting fired? About only a third? Let’s just say that this “target list” may not necessarily been on Kyle Sampson’s mind when the decision was made to fire Ms. Lam.

    [Shorter Herman: let’s desperately cling to our view of what happened, regardless of the actual evidence. — P]

    Herman (fb8134)

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

    Minor Ripper (856b7a)

  19. David’s point was the first thing that crossed my mind. Has the Bush Administration made sure that the USAs had sufficient resources to do the job they wanted them to do? If the resources were not available, then the White House had no right to complain.

    The MSM (or at least the portion of MSM I watch) is taking this pretty cautiously. For example, Tim Russert tonight on the Nightly News said “there is no evidence yet” that anything improper was done in connection with the firings themselves, but that the Democrats want to go digging on the presumption that they can find something. Listening to Russert, the main focus should be on communication between Congress and the White House,with a number of senators miffed because they feel Gonzalez was lying to them.

    The one thing that NBC hyped was Rove’s involvement, so watch that go into the liberal feeding frenzy. (Although why anyone should be surprised that a political consultant becomes involved in deciding the politically appropriate way to implement a decision is not a question this particular liberal is able to answer.)

    kishnevi (2dbd61)

  20. Although why anyone should be surprised that a political consultant becomes involved in deciding the politically appropriate way to implement a decision is not a question this particular liberal is able to answer.

    Rove isn’t just a political consultant; he’s the elections guru, and has a reputation (deserved or not) for less than noble tactics. It’s not evidence of prosecutions as politics by other means, but his involvement certainly fits with the suspicion. FWIW, Patterico is right that the emails undercut, rather than support, the suspicions. Either way we should have a better idea when the DoJ staffers testify to Congress.

    jpe (7cabef)

  21. If you have to write that much about the emails, then you’re seeing the trees and not appreciating the forest. When all is said and done, they lied. They said they wanted to bring morality back to the White House. They lied about that too.

    Jack Lechelt (1810bb)

  22. Beldar,

    In this day and age convictions in pornography cases are hard to get. Why waste time on them if THE PEOPLE generally don’t care?

    The reactions these days are: “I’ve seen it on the internet” or “that is so icky how could any one be excited by it?” Which answers the “community standards” issue and the “prurient interest” issue.

    Child pornography of course is a different matter.

    M. Simon (ed2949)

  23. There are so many misleading arguments here it’s hard to chronicle all of them, but how about explaining the fact that David Iglesias wasn’t on the target list you were talking about until October 2006, approximately the same time that he was phones by Rep. Wilson and Sen. Domenici, when they asked him about the status of investigations into Democratic corruption and sought indictments before Election Day?

    dday (f3e793)

  24. I think the timing on that one is somewhat suspicious, but the White House was also aware of voter fraud issues.

    Feel free to detail the other allegedly misleading arguments. This one was pretty good.

    Patterico (04465c)

  25. I updated this post to reflect your observation, dday.

    Patterico (04465c)

  26. Patterico, your link shows that starting in FY 2000 prosecutions for immigration cases were 2585, 2419, 2243, 2662, 2887, 1641. The last three FY being Lam. So in her first two years she actually increased immigration prosecutions. But she was already a strike out on a list dated 2/24/05 in the middle of FY 2004 (a five year high for immigration prosecutions). So it seems apparent there were other factors involved.

    James B. Shearer (fc887e)

  27. James B. Shearer

    False logic.

    If apprehensions were 10,000 one year with prosecution of 2,500 and apprehensions the following year were 20,000 with 2,800 prosecutions that is NOT a net increase.

    Numbers must be correlated

    R. Lyon (8eac1d)

  28. […] The fired US attorneys: There should have been no story there. All eight had served their full four-year term; from the moment that anniversary passed, they continued to serve solely at the president’s pleasure. And as others have noted far more thoroughly than I ever could, the paper trail on these attorneys (which many media had access to, and selectively excerpted to prove their point and suppress “inconvenient truths”) shows that the “political” issues revolving around these attorneys were often a conflict between what the Bush administration held as priorities for prosecutorial resources, and what these attorneys considered important — or not. […]

    Inquiring minds want to know... « areopagitica (3f26a4)

  29. 27

    You talk as if the US attorney has unlimited resources. The 2887 immigration prosecutions in FY 2004 was 66% of all prosecutions by Lam’s office, up from 50% in FY 2002. Furthermore I expect it was obvious that these prosecutions were not accomplishing much of anything. What do you think the average sentence was?

    The Bush administration has willfully refused to do anything effective about illegal immigration. It is just offensive for them to scapegoat US attorneys on the border for illegal immigration.

    James B. Shearer (fc887e)

  30. For all the documentation, follow the link:

    The House and Senate judiciary committees want to hear from Karl Rove, and it looks like there’s going to be a fight before they do. But Rove has already spoken twice on the U.S. attorney firings, and on both occasions, he auditioned a talking point that provides an excellent case for firing Carol Lam — the only problem with it being that it’s not true.

    On March 8th, Rove said that Lam had been fired because “[she] refused to file immigration cases… at the direction of the Attorney General, she was asked to file, and she said I don’t want to make that a priority in my office.”

    One week later, he said that Lam had made a “principled decision… that she would not commit resources to prosecute immigration offenses. She made a decision that that was not going to be a priority of her office. The United States Department of Justice asked her to make it so, she did not.”

    Now, no one else, either from the Justice Department or the White House, has made a similar assertion. And that’s because, as Lam testified repeatedly under oath before Congress, she was never asked (let alone “directed”) to change her office’s handling of immigration cases.

    But that’s not all. As recounted numerous times on this blog, the Justice Department wrote a letter to Sen. Dianne Feinstein (D-CA) vouching for Lam’s handling of immigration cases just three months before she was fired. The letter stated that Lam had committed “fully half of its Assistant U.S. Attorneys to prosecute criminal immigration cases,” and noted that the number of alien smuggling cases filed in her office had been “rising sharply.” Three months later, she was fired.

    In other words, Rove’s assertion is not only a lie, but a damned lie.

    But here’s the question: where did this talking point come from? Rove, of course, has denied having much involvement at all with the whole process, a claim that grows weaker as more documents are released. We now know that Rove was involved in the early brainstorming, and Sampson bowed to Rove’s political wisdom in orchestrating the firings (“if Karl thinks there would be political will to do it, then so do I”). We also know that Rove’s deputy worked closely with Sampson to get Rove’s former deputy Timothy Griffin installed as the U.S. attorney in Arkansas. So was it Sampson who provided Rove with this talking point?

    Or maybe it was the other way around. As Josh notes today, the only email released by the Justice Department that broaches the topic of Lam’s handling of immigration issues reads very much like “an effort to find a rationale for firing Lam and inquiring to see whether a paper trail or record exists to back that rationale.” Sampson wrote: “Has ODAG [the Office of the Deputy Attorney General] ever called Carol Lam and woodshedded her re immigration enforcement? Has anyone?”

    No one ever did. But if someone had, and she had refused to make it a priority, it would have been an excellent reason to fire her.

    AF (f0c94f)

  31. […] As I told you earlier this morning, the Cunningham investigation broke months later in June 2005, with the publication of this story. Even the lefty TPM Muckraker admits that Lam was targeted before that date. TPM Muckraker also admits that Carol Lam was not investigating Cunningham until the scandal was broken by a newspaper in June 2005, after Lam had been targeted. […]

    A Second Hand Conjecture » Attorney-Gate (f55714)

  32. Another area that gets confused is what I call the ultimate decision. At some point in your legal matter, a major decision is going to have to be made. It could be whether to go to trial, whether to sign a contract and so on. The decision is yours and …

    Anonymous (c7f77c)


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