Patterico's Pontifications

3/26/2007

U.S. Attorneys Balked at Seeking Death

Filed under: General — Patterico @ 6:09 am



The Los Angeles Times reports that three of the fired prosecutors (Margaret Chiara, Kevin Ryan, and Paul Charlton) balked at seeking the death penalty.

I fail to see how this amounts to politicization of the U.S. Attorney’s Office. It sounds more like U.S. Attorneys who had a hard time following directives from their superiors. You can disagree with the call, as I do with the priorities on obscenity cases — but ultimately, these are calls that DoJ superiors have a right to make.

46 Responses to “U.S. Attorneys Balked at Seeking Death”

  1. You are mentioned in the WaPo by Howard Kurtz today, but he misspells your name:

    http://www.washingtonpost.com/wp-dyn/content/linkset/2005/04/11/LI2005041100587.html

    Scroll down a bit.

    JammieWearingFool (95b9a4)

  2. Patterico – I have two questions, both off topic …forgive me.

    1) Hypothetically, are charges against the government leveled against a specific branch, or against the government as a whole? Also, who defends the government in such a situation?

    2) Are the changes to the “recent comments” bar permanent?

    Leviticus (43095b)

  3. It’s hard, as Patterico has said previously, trying to advocate for this administration.

    On issue after issue, the problem is exemplified by posts like this one. The administration has failed to make a plausible case for their actions, leaving it to supportive bloggers to fish around for explanations that they ought to be supplying themselves.

    How you feel about this is a function of the partisan divide. If you support the administration, your thoughts are something like “these guys have a perfectly legitimate basis for what they’re doing – why are they so incompetent that they repeatedly fail to make the case?”

    And if you’re on the other side, your thoughts are more like “If these three were fired because they failed to follow DOJ policy on seeking the death penalty, it wouldn’t be very hard just to say that. Ergo, the real reason is probably something else.”

    It’s funny how Democrats are consistently in fear of the well-coordinated and devastating Republican message machine, while Republicans constantly lament their party’s total incompetence when it comes to messaging. Someone has to be wrong.

    Steve (43f553)

  4. I’m 75/25 against thinking this was some sort of conspiracy or done for any real reason. Although, of course, the admin is doing their usual kid with the cookie jar wide-eyed panic thing, which makes it look ten times as awful.

    I wonder what would account for the timing, though. Just bad planning/PR?

    David N. Scott (71e316)

  5. It’s always possible to gin up some rationalization for actions ex post facto. I’m sure, taken on an individual basis, it would be possible to explain the rejections in your favorite discrimination case, or your favorite “reverse” discrimination case. That really wasn’t relevant to the big picture, though, either in those cases or in this one. Nevertheless, it isn’t only right-wing bloggers looking for retroactive explanations.

    The one common link here is that three of them are along the southern border so you could make the connection that DOJ is unhappy with the immigration numbers in those districts. [my emphasis]

    In other words, here’s a pretext you can take out there to explain three of the firings. It isn’t even asserted that it’s true. And this is from an e-mail of the DOJ spokesperson, and it’s from after the decision to sack the attorneys had already been made.

    What’s more, as further evidence that whatever story you can concoct isn’t related to the events that took place, USA Chiara was just begging to ber told why she was dismissed. Did anyone tell her they were bringing in someone more enthusiastic about the death penalty? Maybe they didn’t bother because she might have reminded them that Michigan was the first state to abolish capital punishment in 1847, even the last GOP governor was opposed to it, and it might be very hard to get juries to vote death in Federal cases.

    Contrasted to all this speculation, we have testimony that McKay and Iglesias got on the list because of partisan GOP dissatisfaction with their failure to convert their offices into an extension of the Rove/GOP opposition research and voter harrassment bureaux. As for Lam, I’d think a successful major public integrity investigation like hers deserves an “Attagirl” no matter what her record on immigration and jaywalking was. Her dismissal looks like the corrupt captain re-assigning the capable detective just like I saw on a million stupid TV shows until I gave up TV.

    Given that, why bother looking for innocent explanations for the other cases. Even where they exist in one or two more cases (no one seems to be batting for SF USA Kevin Ryan, he appears to have done a bad job by all accounts), what difference does that really make in the face of such a clear effort to bend the USAs to the purposes of the Republican Party?

    And even the retreat to the claim that the replacements were for political reasons leaves the Attorney General of the United States exposed as a liar, as he explicitly stated the contrary to Congress. (He also lied about his level of involvement with the firings.)

    My comment wouldn’t be complete without pointing out the relevance of the new permanent-interim appointments clause that let Rove install an attack-dog protege in Hillary Clinton’s home state whose chances for Senate confirmation would have been problematical at best. Malice aforethought?

    Remember, five of these eight fired USAs were ranked in the top third, even if they weren’t perfect. For the original post’s line of argument to make any sense, we’d have to compare to the USAs who didn’t get sacked. I wonder how many of them were found to be “loyal Bushies” (DOJ’s phrase, not mine) on the basis of imbalanced or spurious corruption investigations against Democrats no matter how good they were with death penalty cases? What Bush, Rove, and Gonzales tried to execute was the two-party system, not a bunch of Federal prisoners in three districts.

    Andrew J. Lazarus (7d46f9)

  6. Sure the AG has the right to manage the DoJ but he also has the obligation to manage it competently which he manifestly has completely failed to do in this case.

    James B. Shearer (fc887e)

  7. the point of this wasn’t to retaliate against u.s. attorneys for ongoing/threatened investigations/prosecutions. the point was to install compliant, loyal bushies in strategic districts to influence the election and perpetuate the power of this administration past january 20, 2009 with future investigations/prosecutions.

    assistant devil's advocate (d6920f)

  8. MR. RUSSERT: Wednesday you gave an interview and quoted as follows on this subject: “When they go back and keep shifting stories it tends to indicate there’s a more nefarious reason that they’re not willing to admit to [the dismissals collectively]. … That’s the real problem, and in my case it may be true because if they put me on,” the “list because I wasn’t aggressive enough in ensuring that the Republican candidate for governor was elected, then that’s a terrible thing.” Very close race for the governorship in your state, the Democrat won by just a handful of votes. You looked into the case, decided you did not find voter fraud. When you applied for a federal judgeship, that issue was raised with you. Correct?
    MR. McKAY: That’s correct. I, I was able to go into the White House in a meeting with Harriet Miers and her deputy Bill Kelly, and the very first question that I was asked was, was in reference to the 2004 governor’s election.

    MR. RUSSERT: And did they ask you why you did not go forward with an investigation or with indictments?

    MR. McKAY: No, they actually asked me why Republicans in the state of Washington would be angry with me. And, of course, all of the actions taken by the federal government, which were not publicly discussed, were well-known to, to my supervisors and, and those who follow our work in Washington, D.C. So I was a little surprised that they would ask me about that, since our office had carefully reviewed the evidence, and really, in the case of the 2004 governor’s election here, the lack of evidence. And the decision that I made not to go forward was a really unanimous decision with the Seattle division of the FBI. So, so from our standpoint, it wasn’t controversial from an evidentiary standpoint, even though it was very controversial in the state of Washington. And, you know, we expected to be supported by people in Washington, D.C., when we make tough decisions like that. And I think that’s a, a really important problem here that folks who, who raise their hand and take—took the same oath I did to support and defend the Constitution didn’t do the same thing we did, which was focus on the evidence and not allow politics into the work that we do in, in criminal prosecutions.

    AF (c319c8)

  9. I fail to see how this amounts to politicization of the U.S. Attorney’s Office.

    You’re only arguing with a straw man on that point. Is there really anyone taking the other side of the case? That is, is there anyone who A) believes that the attorneys were fired because of death penalty cases, and B) calls that “politicization”?

    I don’t read the LA Times, so I might be missing the point of your post here, but this sounds suspiciously like yet another in a growing list of ex post facto attempts to come up with a justification for firing the attorneys.

    Anyone want to place a bet on how many more Bush officials are going to be taking the Fifth in these hearings?

    Oregonian (7fa7c7)

  10. Terry Jeffrey on CNN:

    It’s not good, apparently her lawyer is trying to suggest they’re building a perjury trap for people in the Justice Department. But the truth is, Wolf, Congress – its Judiciary Committees – they have oversight over the Justice Department. It is inexcusable for people in the Justice Department to take the 5th amendment to avoid testifying in Congress. People there must go testify. There’s no question about it.

    AF (c319c8)

  11. AF,

    This staffer’s decision seems logical and predictable. Should DOJ personnel be prohibited from asserting their 5th Amendment rights when they testify before the Senate Judiciary Committee?

    DRJ (6984d0)

  12. The Administration, like most Republicans and the Military, have given up trying to make their case publicly because the extreme partisanship of the Press (in favor of Dems, biased against Reps, blatantly shilling for Jihad) makes it impossible.

    The Military in Iraq and Afghanistan doesn’t even want the Press around figuring (correctly I might add) that anything reported will be twisted into Anti-Military, anti-US, pro-Jihad/bin Laden/Iranian propaganda.

    It’s the same with the Administration. David Gregory, Helen Thomas, Chris Matthews, Tim Russert, George Stephanopoulus, Katie Couric etc. won’t twist any statement into an anti-Bush jihad?

    Better to simply say nothing.

    Jim Rockford (e09923)

  13. Here’s Terry Jeffrey.
    Is Human Events shilling for Jihad?
    jackass.

    AF (c319c8)

  14. “Congress – its Judiciary Committees – they have oversight over the Justice Department.”

    Do none of you people understand how our republic works?

    AF (c319c8)

  15. Its really a shame that someone feels the need to protect themselves from being ripped in public by political hacks looking for political contributions and votes.

    Frankly, if I was in her shoes — or if I was representing her — I’d probably do/advise her to do the same thing. If they think she has done something wrong, then prove it, but I certainly wouldn’t be interested in lending one word to their effort given the Leak investigation which took on a life of its own notwithstanding the fact that the prosecutor knew there was no underlying crime, and the only criminal conduct came in response to there being an investigation.
    The political/election imperative of cooperating with the investigation landed Libby in jail.

    The problem with testifying “under oath” on Capitol Hill is there are no rules of fairness in the questioning and no neutral referee to enforce them like there is in a trial context with an impartial judge. The blowhards with the microphones and the cameras shining in their faces can ask any and all manner of questions they want, twisting facts to fit their preconceived partisan ends.

    shipwreckedcrew (077d0d)

  16. I fail to see anyone claiming that this was why any of the AGs were fired, especcially Mr. Ryan, a *very* conservative USA who was given stand-up “loyalty” reviews till complaints came about morale and pure incompetence.

    If it turned out they were all fired because they dyed their hair, that woud have been a legit (if odd) reason to fire them. But if they weren’t actually fired because of that, who cares?

    Justin (aafef1)

  17. Josh Marshall explains it all for you (and does a pretty good job):

    Given the amount of attention we’ve given to the US Attorney Purge, there’s been no end of right-wing nutjobs who’ve written in asking just what the big deal is. In most cases, these are just attacks dressed up as questions. And I do my best — not always successfully — to ignore them. But interspersed in that mess of emails are a few who seem to be asking, genuinely, what the big deal is. Perhaps they’re critics of the president or conservatives who genuinely don’t see it. So here’s how I’d answer that question.

    For all the intensity and hostility awash in our politics, there are some lines we just assume aren’t going to be crossed, lines that are so basic that the civil compact itself can’t easily survive if they’re not respected.

    One of those is the vote. Whoever’s in power and however intense things get, most of us assume that the party in power won’t interfere with the vote count. We also assume that the administration won’t use the IRS to harrass or imprison political opponents. And we assume that criminal prosecutions will be undertaken or not undertaken on the facts.

    Yes, there’s prosecutorial discretion. And the grandstanding, press-hungry DA is almost a cliche. But when a politician gets indicted for corruption we basically all assume it’s because they’re corrupt — or, given the assumption of innocence, that the prosecution is undertaken because the prosecutor believes their case is strong and that the defendent committed the crime.

    Now, again, life is made of grey areas. And our laws and regulations often take into account that even people of good faith may not be able to impartially investigate their own. That’s why we had the Independent Counsel statute. The partisan affiliation of prosecutors and judges often hangs in the background of cases. And probably most Democrats and Republicans feel a bit better when a member of their party is brought down by a prosecutor of the same party because then you can assume — whatever fairness or unfairness may have been involved — that partisanship wasn’t a factor.

    So, all of this is to say that no system is perfect and partisan affiliation may distort the justice system at the margins.

    But none of what we’re seeing here is at the margins. What we seem to see are repeated cases in which US Attorneys were fired for not pursuing bogus prosecutions of persons of the opposite party. Or vice versa. There’s little doubt that that is why McKay and Iglesias were fired and there’s mounting evidence that this was the case in other firings as well. The idea that a senator calls a US Attorney at home just weeks before a federal elections and tries to jawbone him into indicting someone to help a friend get reelected is shocking. Think about it for a second. It’s genuinely shocking. At a minimum one would imagine such bad acts take place with more indirection and deniability. And yet the Domenici-Iglesias call has now been relegated to the status of a footnote in the expanding scandal, notwithstanding the fact that there’s now documentary evidence showing that Domenici’s substantial calls to the White House and Justice Department played a direct role in getting Iglesias fired.

    So what you have here is this basic line being breached. But not only that. What is equally threatening is the systematic nature of the offense. This isn’t one US Attorney out to get Democrats or one rogue senator trying to monkey around with the justice system. The same thing happened in Washington state and New Mexico — with the same sort of complaints being received and acted upon at the White House and the Department of Justice. Indeed, there appears to have been a whole process in place to root out prosecutors who wouldn’t prostitute their offices for partisan goals.

    We all understand that politics and the law aren’t two hermetically sealed domains. And we understand that partisanship may come into play at the margins. But we expect it to be the exception to the rule and a rare one. But here it appears to have become the rule rather than the exception, a systematic effort at the highest levels to hijack the Justice Department and use it to advance the interest of one party over the other by use of selective prosecution.

    AF (c319c8)

  18. Justin — its my view that this is one of those issues where the press and the public (to the extent the pubilc is even paying attention) are failing to see the forrest due to their efforts to find one tree.

    Its not usually any one reason — short of over t misconduct –that gets a Presidential appointee canned or asked to resign at the end of their term. Its a body of issues that arise over the course of a 4 year period that leaves the bosses at DOJ fed up with the difficulties of continually having to “manage” the relationship. US Attorneys are Presidential appointees, but they are members of the Justice Department, and are subordinates of the Attorney General. They are obligated to respect the chain of authority, and if they feel unable to carry out the policy directives given to them, they should resign.

    Congress created a federal death penalty in the 1990s. Its not up to the Exec. branch to disregard it.

    A procedure was devised to manage the DOJ policy on seeking the death penalty. All death penalty eligible cases must be submitted to the AG’s Death Penalty Committee for consideration. Its not optional — its not a situation where the US Attorney can say “we’re not going to seek the death penalty so I don’t have to submit it to the AG Committee”. The decision to seek or not seek the death penalty in a death eligible case rests with the AG and the AG alone. The US Attorney and the courtroom prosecutors’ role is to carry out the policy directive once it is made.

    These decisions aren’t made on a whim. Voluminous reports are filed that cover all the evidentiary issues in the case, both those favoring the death penalty, and those in mitigation. The US Attorney and the courtroom prosecutors are brought to Washington and are asked for their recommendation — for or against.

    The defense counsel is then invited to meet with the Committee and put forward their basis for why the death penalty should not be sought.

    But the final decision rests with the AG. And its done that way so there is UNIFORM application of the penalty across all 93 US Attorney districts. Its a policy position that the death penalty should not be more or less likely to be imposed in a given jurisdiction simply because the US Attorney in that jurisdiction is more/less inclined to seek the death penalty. They all represent the President that appointed them. They must all use the same policy considerations to make key policy decisions. For that reason, individual discretion is not left in their hands, but it is centralized in Washington with the AG.

    So, when an individual US Attorney seeks to repeatedly dispute and contest a decision which is not his to make or dispute, the senior officials in DOJ are going to lose patience. Look at some of the emails between DOJ officials concerning the “demands” being made by Charlton to have a face-to-face meeting with AG Gonzalez to argue against a decision that had already been made to seek the death penalty in one of his cases. You can read between the lines the view of the DOJ officials — “Who does this guy think he is?”

    The short answer for those kinds of management problems is to get rid of them. So they did.

    shipwreckedcrew (077d0d)

  19. AF — quit cutting and pasting crap like this from Marshall and defend him:

    “What we seem to see are repeated cases in which US Attorneys were fired for not pursuing bogus prosecutions of persons of the opposite party. Or vice versa. There’s little doubt that that is why McKay and Iglesias were fired and there’s mounting evidence that this was the case in other firings as well. The idea that a senator calls a US Attorney at home just weeks before a federal elections and tries to jawbone him into indicting someone to help a friend get reelected is shocking. Think about it for a second. It’s genuinely shocking. At a minimum one would imagine such bad acts take place with more indirection and deniability. And yet the Domenici-Iglesias call has now been relegated to the status of a footnote in the expanding scandal, notwithstanding the fact that there’s now documentary evidence showing that Domenici’s substantial calls to the White House and Justice Department played a direct role in getting Iglesias fired.”

    First, there is more than a little doubt that McKay and Iglesias were fired for reasons unrelated to their refusal to bring “bogus” prosecutions.

    Domenici was complaining about Iglesisas for more than a year before the Oct 2006 telephone call. Marshall manages to work that in at the end of this paragraph, but turns its meaning on its head. If Domenici had been after the WH to can Iglesias for many months as the facts now show that he had been), then it seems that Iglesias failure to bring a corruption indictment prior to the election was not the reason for Domenici’s unhappiness — he was already unhappy — but simply the final straw when it came to what Domenici saw as his incompetence.

    Now Domenici certainly recognized the inappropriateness of his telephone call after the fact, and he understands the manner in which people are characterizing it. But that doesn’t change the fact that Domenici wanted Iglesias out — and he was pressuring the WH to dump Iglesias — long before any issue arose with respect to Iglesias not bringing corruption charges connected to the contracting fraud involving the Albequerque courthouse (which is what I understand the corruption case to concern).

    Regarding McKay, he extrapolates from McKay’s recounting of one question asked of him by Harriot Miers about the investigation into a hotly contested election in Washington, and concludes its part of a systematic effort by the WH/DOJ to put in place GOP hatchetmen to go after Dem politicians on “bogus” charges.

    What??????

    Further, there are numerous emails commenting on McKay’s habit of going out of his district to promote matters of interest to him as US Attorney whe DOJ had not taken a position on those matters, notwithstanding his advocacy for them. The LinX Information Sharing proposal for instance. I know this isn’t sexy and the press isn’t interested, but its these kinds of things that are the day-to-day management problems that get people fired.

    Marshall says “repeated instances” but then backs up and says “at least two”. Well, that’s hardly “repeated.”

    “Mounting evidence … in other firings as well” — well, it would be nice if he would point out some other “evidence” because the press certainly hasn’t reported any.

    More from Marshall:

    “The same thing happened in Washington state and New Mexico — with the same sort of complaints being received and acted upon at the White House and the Department of Justice. Indeed, there appears to have been a whole process in place to root out prosecutors who wouldn’t prostitute their offices for partisan goals.”

    So, he takes his two dubious and questionable cases and expands them into a “whole process in place”. Are you kidding me? Is this what passes for persuasive advocacy on the left? This is barely coherent.

    Finally:

    “But here it appears to have become the rule rather than the exception, a systematic effort at the highest levels to hijack the Justice Department and use it to advance the interest of one party over the other by use of selective prosecution.”

    And he comes to this conclusion based on one questionable claim about one unfiled New Mexico corruption case in which one Senator made an ill-advised call to a US Attorney he had long been on the record as having wanted replaced; and one question asked of a US Attorney about the failure to pursue evidence of potential voter fraud in one election — well after the fact and not for the purpose of initiating any such action on the part of that US Attorney.

    This is Orwellian.

    shipwreckedcrew (077d0d)

  20. Shipwrecked, in all that rhetoric you faill to provide even the slightest bit of suggestion that anyone was fired for their views or actions on the death penalty, much less the 3 AGs whose firings have caused the most concern – Iglesias, McKay, and Lam.

    Justin (aafef1)

  21. I must confess that I’m with Patterico on this one.

    I couldn’t be more opposed to the death penalty and I’m pleased to hear that these three US attorneys “balked” at it – but the courage of their convictions is borne through the fact that they were willing to face the consequences for standing up to DoJ policy. Good for them.

    The Liberal Avenger (b8c7e2)

  22. I confess that I’m with LA on this. I am not opposed to the death penalty and even believe that there are cases where it MUST be imposed but I do disagree with a single federal rule across all 50 states. This is one area where the U.S. Attorneys should have greater independence and autonomy to conform with the values and sensibilities of their respective procuratorships.

    nk (0383ba)

  23. “what Domenici saw as his incompetence”
    Where are the reports, the reviews, describing what you call “incompetence”? And now they begin pleading the 5th before a committee whose job is oversight?.
    Did you watch pumpkinhead russert yesterday, with McKay and Iglesias?
    You’re making me laugh kid. If ignorance of our form of government can make me laugh.

    When Attorney General Alberto Gonzales’s former chief of staff, D. Kyle Sampson, testifies before the Senate Judiciary Committee this Thursday about the controversial firings of eight U.S. attorneys, he’s unlikely to throw any big bombs at the Bush administration that are of the magnitude of a direct link between Bush’s political advisor Karl Rove and the dismissals, a close associate of Sampson’s tells U.S. News. But Sampson will set off some fireworks by contradicting a key assurance that Gonzales made to Congress and the American public last Tuesday that he was not in the loop during the long deliberations leading up to the firings.”

    It’s called lying to Congress, and it’s a crime.
    I don’t even like Marshall very much. He’s a bit right wing.
    (he likes Bill Clinton)
    anyway,
    done for now.

    AF (c319c8)

  24. Justin —

    McKay, Iglesias, and Lam — I don’t think the article mentions anything about McKay, Iglesias, and Lam and a death penatly case.

    If you read it, it mentions Chiara, Charlton, and Ryan. And it goes into much detail by combing through the emails about the difficulties and unhappiness caused for the Dept. and senior management by the efforts of Chiara, Charlton and Ryan in opposing the Dept.’s decision on death penalty cases in their district. If you want to object to my inference that this played a role in the desire of DOJ officials to can them, then all I can say is I’ve worked for DOJ for 15 years, under 4 different US Attorneys, and I know more about this stuff than you do. Unless you want to put up your bona fides and establish a basis for understanding the dynamics of how this stuff works better than I do.

    Are you suggesting that the reason for the firing is legitimate only if it applied to all 8 who were fired?

    What I’m telling you is that there are all kinds of things that singularly or collectively can get you on a sh!t list with senior management at DOJ, and cause them to want to get rid of you.

    With Lam it was her refusal to pursue Admin. prioritiest with respect to border crimes and gun crimes, and the resulting political uproar that caused with numerous members of Congress who complained about Lam and her prosecutive priorities. Lam was always and independent actor and never a team player, owing in part to the fact that she was a political Independent and was selected to be US Attorney in San Diego under very unusual circumstances not to the WH’s liking.

    There are many emails commenting on McKay as well. He was known as a promoter of greater information sharing on intelligence matters with state and local law enforcement — a topic of great dispute and disagreement among various agencies and cabinet departments in DOJ. But that didn’t stop McKay from being a one-man band leader in advocating opening up intelligence data bases to inquiries by state and local agencies. He traveled to districts around the country promoting such information sharing arrangements — even after he was told by DOJ to stop doing so because DOJ had not adopted a formal policy on how/what information would be shared. Again, its the “death by a thousand cuts” sort of thing. The easist was to put a stop to McKay’s unauthorized advocacy on such a sensitive law enforcement topic was to can him.

    Re Iglesias, as I have posted here before and as the WaPo has pointed out at the outset of this whole bruhaha — on three occasions prior to Oct. 2006, Domenici had sought to have Iglesias canned by DOJ, and have him replace by somoene “up to the job” in Domenici’s words. While Iglesias starte out to great fanfare, and with great reviews, an opinion was slowly shaped in New Mexico that he was just too cautious and wasn’t up to the job.

    What the specifics of these claims are have never been reported so far as I know, but they predate by more than a year Domenici’s call to Iglesias about the pending corruption investigation.

    The point of my original point to you was that when a US Attorney disregards or impedes the implementation of policy decisions which are not his/her’s to make — as is suggested in the LATimes article about Charlton, Chiara, and Ryan — that’s the kiss of death. Its only a matter of time until they have someone to take your place and ask you to step aside.

    shipwreckedcrew (077d0d)

  25. nk — but the US Attorneys are not elected. The people they “preside” over have not chosen them to be the arbiters of wise prosecutorial decisions. They have been installed in those positions by someone else who was elected.

    So, the US Attorneys have an obligation to pursue the policy mandates of the person elected.

    Frankly, if you knew a few of the US Attorneys you would not have so much faith in their wisdom. Some are not very bright, and have their positions by virtue of simply having deep-pocketed patrons who were happy to help them build their resumes.

    And, the reason for having a uniform policy acorss all 50 states and all 93 federal judicial districts is so that you can have “equal protection” under the law. There is a uniform standard against which all citizens are judged — not 93 different standards that might change from time to time as new people come into and pass from the office.

    The same principle has always been used in tax cases. Most people do not know this, but before any criminal tax case can be initiated there must be approval from the Tax Division at DOJ. The reason for having centralized approval is to ensure that the tax laws are applied in the same fashion in Alaska as in Florida, and in Maine as in Arizona.

    The tax laws are the same in each state, but citizens of different states shouldn’t be subjected to the vagaries of a particular prosecutor when being subjected to potential criminal sanctions for failure to pay taxes.

    shipwreckedcrew (077d0d)

  26. AF — so are you abandoning Marshall now? You posted him, I assumed you agreed with him.

    Now you want to put up McKay and Iglesias? Do you think they will admit that they pissed off their bosses at DOJ, and that might have played a role in their firing?

    The WaPo reported two weeks ago the view from Domenici and people in New Mexico that time had shown Iglesias to be over his head.

    The Justice Department said last night that Domenici called Deputy Attorney General Paul J. McNulty during the first week of October to discuss Iglesias.

    This followed three calls to Attorney General Alberto R. Gonzales in September 2005, January 2006 and April 2006 during which, Justice Department spokesman Brian Roehrkasse said, Domenici “expressed general concerns about the performance of U.S. Attorney Iglesias and questioned whether he was up to the job . . .

    “At no time in those calls did the senator mention this corruption case,” nor did he specifically ask for Iglesias’s ouster, Roehrkasse said.”

    http://www.washingtonpost.com/wp-dyn/content/article/2007/03/04/AR2007030400507_pf.html

    And yes, I did watch MTP yesterday, and I was hardly impressed by McKay or Iglesias defending themselves. I’m sure they don’t know exactly why they were fired. Were they wounded by McNulty saying the terminations were “performance related” — sure they were wounded. Does that mean McNulty didn’t have a basis for saying so? How would they know? Are they privy to all the private conversations that took place at DOJ concerning their stewardships of their office? I doubt it.

    Frankly, from what I’ve seen of Iglesias on TV, nothing about the guy impresses me. I’ve worked for exceptional US Attorneys, both in the Clinton and Bush Administrations, and Iglesias looks and sounds weak.

    And, find for me won’t you the comment that Gonzalez made to Congress on the subject. So far as I know, Gonzalez has not testified before Congress on the subject.

    shipwreckedcrew (077d0d)

  27. They all got high marks in their reviews.
    “And yes, I did watch MTP yesterday, and I was hardly impressed by McKay or Iglesias defending themselves.”

    I’m not impressed by you either. So you show me the offical reports concerning McKay et al. and I’ll show you the reports calling you an idiot. Until then we’ll just have to take each other’s word which in both cases counts for shit.

    AF (c319c8)

  28. What reviews would you be talking about? EARS? Have you read them? Do you know what they review? Do you think they review the actions of the US Attorney him/herself? Well, you’d be wrong if you did.

    EARS is an OFFICE performance evaluation, not an evaluation of an individual US Attorney’s performance or conduct, except as to certain limited considerations such as office morale, internal office structure and management, and a couple of other matters.

    How often are they performed??

    How about every three to five years.

    When was the last one I was involved in? How about 3 weeks ago. It was my 4th. I know all about the process, what it covers and what it doesn’t cover.

    A glowing EARS review is not a review on the conduct of the US Attorney, and it in no way undermines the rationales that are reflected in the numerous emails that are critical of the specific US Attorneys in this case.

    The EARS review involves a team of “inspectors” coming to a particular office for a period of one to two weeks depending on the size. The inspectors themselves are members of other US Attorneys Offices, generally senior Assistants by experience or members of management in other offices (First Assistants, Criminal Chiefs, Civil Chiefs, Section Chiefs). Before they ever arrive every AUSA in the office being evaluated answers about 200 questions in an online questionnaire on all kinds of topics involving office practices and procedures.

    The inspectors spend about 45 minutes speaking with every AUSA, going over their answers to the questionnaire. This is mostly a bitch session about the AUSA’s immediate supervisor or whatever other topic of concern the AUSA has developed over the 3 years since the last opportunity to bitch to an outsider about a supervisor.

    The inspectors audit case files to see if the are up to date and in good order.

    They check to see if grand jury material is being stored in a manner consistent with DOJ policy.

    They check to see if tax records are stored appropriately.

    They confirm that everyone knows and follows policies regarding computer security and office security.

    They talk with judges, probation officers, Pretrial Services, and heads of agencies like the FBI, DEA, ATF, IRS, etc., about the performance of the US Attorneys Office — the performances of the AUSAs, since they are the ones doing the day-to-day work, not the US Attorney.

    What it is NOT is a review of the conduct of the US Attorney himself. That is reserved for DOJ to conduct. That is for the Executive Office of US Attorneys, and the Attorney General and Deputy Attorney General and their staffs.

    So, maybe your speak from a position of ignorance about this process and the facts of this case, so your opinion is worth shit.

    My points have and will continue to be substantive — not cut and paste-ups of the words of others.

    Don’t you have any thoughts of your own?

    wls (c2d31f)

  29. wls,
    I’m not going to go on as if I have to re-argue and re-document every point I’ve made/linked to over the last few days. Do a search for AF on this site and it’s all there. The record of lies and retroactive justification by this administration is what it is. The record of the politics as policy is there.

    “Don’t you have any thoughts of your own?”
    I have plently of thoughts, but it makes more sense to quote reporters, experts and facts. Gonzalez lied. DoJ brainstormed to find arguements for dismissal. Monica Goodling is going to try to take the 5th. Go to Muckraker and post comments on every one of the posts- they all link to more data than you do, that’s why all I do is cut and paste. You respond to an avalanche of details with dreams hopes and generalities.

    On this site Bill Clinton is a socialist and Move On are Com-Symps, if not outright trators. Follow the link, see who Move-On’ers love. And don’t call me a fan of Matt Stoller please, he’s just another white suburban punk, but look at the data.
    What you call “leftist” used to be called moderate republican. The one exception is that homos are more accepted these days.

    Read this.
    Learn something about yourself.

    AF (c319c8)

  30. Disclaimer: IANAL

    Just curious here, but why are we even discussing “cause” when talking about the US Attorney dismissals? Didn’t Parsons v. United States (1897) (167 US 324) and Myers v. United States (1926) (272 US 52) make it settled law that the POTUS has the authority to remove a district attorney, and then any official of the executive branch at will and without Congressional approval (or consent)?

    It would seem to me that our current Congress wants to reinstate legislation similar to the Tenure of Office Act (1867). Thoughts?

    Brad (081dae)

  31. It must be a great relief to shipwrecked and wls that they’ve discovered some acceptable pretext for the firings. But it isn’t that hard to discover a retroactive fake-explanation, including hypothetical explanations for the attorneys who were retained—a comparison that they don’t seem to be making. (It’s routine for defendants to come up with such pretexts in discrimination cases, for example, and to give smarmy speeches about having protected the victims from the real reasons they were rejected, too.)

    It’s a pity that in the real-life internal dynamics of the firings, as we see from emails and previous testimony, the test was for loyal Bushiness. Iglesias didn’t even appear on the list until Sen. Domenici complained repeatedly about his failure to deliver anti-Democratic news before Election Day.

    Andrew J. Lazarus (2b6fb8)

  32. Brad—
    Wrong. I’m not aware of any intent on anyone’s part to try a re-run of the Tenure of Office Act, unless you count restoring the status quo ante on interim appointments. But if the Bush Administration fired US Attorneys because they didn’t sufficiently aid the Republican Party’s re-election campaigns, there should be a very high price to pay (e.g., in the refusal to confirm replacements of dubious morality).

    Andrew J. Lazarus (2b6fb8)

  33. Read this.
    Learn something about yourself.

    AF (c319c8)

  34. wls,
    I’m not going to go on as if I have to re-argue and re-document every point I’ve made/linked to over the last few days. Do a search for AF on this site and it’s all there. The record of lies and retroactive justification by this administration is what it is. The record of the politics as policy is there.

    “Don’t you have any thoughts of your own?”
    I have plently of thoughts, but it makes more sense to quote reporters, experts and facts. Gonzalez lied. DoJ brainstormed to find arguements for dismissal. Monica Goodling is going to try to take the 5th. Go to Muckraker and post comments on every one of the posts- they all link to more data than you do, that’s why all I do is cut and paste. You respond to an avalanche of details with dreams hopes and generalities.
    On this site Bill Clinton is a socialist and Move On are Com-Symps, if not outright trators. Follow the link, see who Move-On’ers love. And don’t call me a fan of Matt Stoller please, he’s just another white suburban punk, but look at the data.
    What you call people here call “leftist” used to be called moderate republican. The one exception is that homos are more accepted these days.

    AF (c319c8)

  35. Andrew,

    My intention was to draw a parallel between the Tenure of Office Act and the actions of the current Democrat majority in Congress as pertains to Congressional usurpation of Executive authority.

    Can you provide any case law from SCOTUS which would overturn the Parsons and Meyers rulings? If not, then I stand by my statement that POTUS has the authority to remove an appointed official at will, and that such removal does not require ANY advice or consent from Congress.

    Brad (081dae)

  36. Brad, I think you’re missing my point. The argument is not over whether Bush has the power to fire US Attorneys. The argument is over why. I’m not familiar with any case law precluding a Congressional investigation into why someone was asked to resign. Moreover, the investigation has a legitimate legislative purpose insofar as new law is required to cancel the Patriot Act’s permanent-interim appointment clause.

    I’m legally entitled to give all of my money to the Scientologists, or as the Republics like to call them, the Scientologs.(*) But a lot of people would want to know why, and would draw embarrassing conclusions about my intelligence, wisdom, and sanity if I did so.

    (*) OK, I’m married in a community property state so this isn’t so clear, but it’s an easy hypo.

    Andrew J. Lazarus (7d46f9)

  37. “If not, then I stand by my statement that POTUS has the authority to remove an appointed official at will…”
    within the law.
    The president does not have the right to obstruct justice, and the Constitution is not a suicide pact.
    In order to perform its duties, one of which is oversight, the congress requires access to information.
    Trust but verify: the president doee not have the right to be taken at his word. He is not a king.

    Again, I do not think some people here understand how our government works, and why it was designed to work the way it does.

    AF (c319c8)

  38. The Administration opponents want to claim that the stated bases for the firings are all pretextual, and arrived at after the fact.

    They then provide unsupported allegations as the real reasons for the firings, but those allegations are not supported by ANY facts.

    As for the state reasons are “pretexts” — they aren’t pretexts when the documentary evidence of DOJ dissatisfaction across a variety of issues predates the firings.

    The specific justifications have been offered in the aftermath of the firings only because they were first sought in the aftermath of the firings. The details were rolled out only after the generalization of “performance issues” didn’t satisfy anyone. They weren’t “discovered” after the fact — their existence before the fact is revealed in email and other documents that were created contemporaneous with the events, but only disclosed to the public after the fact.

    wls (077d0d)

  39. Let me make something else clear — shipwreckedcrew and wls are the same person. The former is an online identity I’ve used in numerous websites and has a long and boring story regarding is origin.

    wls is simply a shorthand moniker I used here the first time I posted since “registration” of an online handle wasn’t required.

    I didn’t ever realized I had used both here until it was pointed out above.

    I didn’t intend to make it appear that two different people were making similar points.

    I apologize for the confusion if there was any.

    wls (077d0d)

  40. There doesn’t seem to be any doubt that Iglesias and McKay, at least, were interrogated about failure to continue investigations against Democrats for which they had already been unable to find any evidence. And then they were fired. In Iglesias’s case, he doesn’t appear to have been in jeopardy until Sen. Domenici’s highly inappropriate intrusion.

    It seems a little optimistic to expect this retaliation to be set down in so many words, although if we get our hands on all the emails Karl Rove sends through the RNC server (to evade record-keepings acts, I imagine) such plain evidence might even turn up. Don’t prosecutors often file charges in cases where no email admissions of blatant wrongdoing exists? Don’t civil juries often judge defenses as pretextual even when the real reasons haven’t been committed to writing (cue innumerable discrimination cases)? I thought so. Re-read the DoJ email I quoted in comment five: it flat out admits that it’s an attempt to find a pretext after the decision has been made. Look at the varied explanations the DoJ has given. It was political. It wasn’t political. It was performance. It wasn’t performance. The permanent-interim rule was just for emergency use in case of decimating terrorist attack. The permanent-interim rule was an integral part of the plan to appoint a USA who likely couldn’t get Senate confirmation (Griffin). Pretty suspicious to me. Like Nixon’s last defenders, you’re being chumped in plain view—because you want to be.

    Andrew J. Lazarus (73e0d4)

  41. Andrew Lazarus:

    Iglesias and McKay were “interrogated”???? Where does that little gem come from?

    Iglesias was the subject of complaints from Domenici the New Mexico GOP chairman to the WH and DOJ going back to 2004 about voter fraud. There is NO SUGGESTION that anyone pushed HIM to do anything.

    Domenici’s phone call and Wilson’s phone call in 2006 apparently have to do with an ONGOING probe into contracting fraud concerning the federal courthouse construction in Albequerque. No one has said that was a bogus investigation or there was a lack of evidence against state democrat officials. The complaint about Iglesias was that he was moving too slow.

    If he was moving too slow, and if there is evidence of criminal conduct, then you have a “performance” issue.

    The “interrogation” of McKay apparently is one or two questions asked of him by Harriet Miers during an interview for an open federal judgeship. IN OTHER WORDS, no one was urging him to take any course of action in connection with respect to the 2004 election allegations. The question put to him about his decision-making on the election issue was AFTER THE FACT, and it came from the WH.

    The criticism of his job performance, on the other hand, came from the upper management of DOJ, and it had nothing to do with election fraud.

    Finally, I can hardly contain my laughter at your link in #5 to the extent that you think it is evidence of an attempt to find a “pretext after the decision had been made.”

    When I pulled up the link, and looked through the email exchange, I spit my drink up. Lets work through it step by step:

    1. On November 15, 2006, Kyle Sampson sends a 5 step plan for requesting the resignations of seven US Attorneys to Harriett Miers, Counsel to the President, and William Kelley, her top Deputy. This plan had been in the process of being formulated for some time prior to Sampson’s email. The last paragraph begins “We’ll [DOJ] stand by for a green light from you [WH]”.

    2. On Friday, November 17, 2006, at 12:32, William Kelley sends a note to Catherine Martin, among others, attaching the email exchange between Harriet Miers and Kyle Sampson, and in his note to Martin states, “Before executing this plan we wanted to give your offices a heads-up and seek input on changes that might reduce the profile or political fallout.” Catherine Martin is Dep.Dir. for WH Communications, Policy and Planning.

    3. At 1:29, Martin forwards the email from Kelley to Tasia Scolinos with a note stating: “Are you looped in on this? What is your comms plan?” I presume “comms plan” is communication strategy.
    Scolinos is the DOJ Director of Public Affairs.

    4. At 2:00 Scolinos responds “Thanks for flagging – we are not looped in – first I have heard of it. Let me call up there and figure out what is happening here and I’ll get back to you.”

    5. At 5:40, Scolinos sends another note to Martin: “Its only six US Attorneys (there are 94) and I think most of them will resign quietly – they don’t get anything out of making it public they were asked to leave in terms of future job prospects. I don’t see it as being a national story – especially if it phases in over a few months. Any concerns on your end?”

    In other words, the DOJ Public Affairs office doesn’t see a need for a communication strategy for what it sees as a minor personnel matter.

    6. At 6:07 pm, Martin responds back to Scolinos, asking “Which ones are they?”

    Remember, all these exchanges are taking place on a Friday afternoon.

    7. Its a matter of such urgency to cook up a pretext as you call it, that Scolinos waits until Tuesday, November 21, 2006, at 1:20, to respond to Martin, identifying the six as Charlton, Lam, Chiara, Bogden, McKay, and Iglesias.

    Its in this email that Scolios suggests to Martin that one common link is that three are on the southwest border so you could make the connection that DOJ is unhappy with the immigration prosecution numbers in those districts.

    THAT’S THE END OF YOUR CONSPIRATORIAL COMMUNICATIONS ON PRETEXT.

    Lets review — according to your view, the Dep. Dir. of Comm for the WH and the Dir. of Public Affairs for DOJ conspire in 3 emails to cook up a pretext explanation for the firing of 6 US Attorneys, when neither had any participation in the decision-making, and neither was even aware of the plan or the US Attorneys involved until it was passed onto them for planning of communication strategy. The DOJ Official’s initial response was that a Comm. Strat. probably wouldn’t be needed because these are minor internal personnel issues, but later puts in one sentence that points out that three serve in districts on the Southwest Border and a common theme of unhappiness would immigration prosecutions could be advanced as to them.

    Now, doesn’t that seem a little thin for a grand conspiracy to cover up firings of US Attorneys where the real purpose is to replace fair mineded US Attorneys with RNC hatchet men for the purpose of pursuing political enemies of the Administration with the power of the Justice Department, and allowing GOP supporters to go free?

    Its all left to Cathy Martin and Tasia Scolinos, and three email exchanges right before Thanksgiving?

    C’mon — you can do better than that.

    Excuse me now while I take some time to clean the soda off my computer monitor.

    wls (c2d31f)

  42. Now, doesn’t that seem a little thin for a grand conspiracy to cover up firings of US Attorneys where the real purpose is to replace fair mineded US Attorneys with RNC hatchet men for the purpose of pursuing political enemies of the Administration with the power of the Justice Department, and allowing GOP supporters to go free?

    Frankly, no. Putting all your snark aside, you agree that there wasn’t any legitimate reason that DoJ could give its spokesmen, or at least that they didn’t do so, leaving them to concoct some pretext on their own. Obviously this quote isn’t the positive evidence for the real reason being the furtherance of GOP electoral aims, but that’s available, first from the statements of Iglesias and McKay, and second from Sampson’s uncontroverted statement that USAs were being measured as loyal Bushies. (Heaven knows what’s on the RNC mail servers, which Rove et. al. used in preference to backed-up official machines.) Hard as it has become for Republicans to understand, caught up in envy of Marxist-Leninist merger of party and state, devotion to justice can be at odds with loyal Bushiness, e.g., when Republican Congressmen are on the take.

    Andrew J. Lazarus (7d46f9)

  43. “…caught up in envy of Marxist-Leninist merger of party and state….”

    When the Democrats are the party of parasites, pork and pussilinimity in the face of terror, then the Republicans are by default the defenders of America.

    nk (483a52)

  44. Lazarus —

    I agree that the Public Affairs people in DOJ didn’t think there would be a need for any reason for their resignations to be explained.

    If that’s the view, then why would there be any need to create a pretextual explanation?

    And, if the AG, Dep.AG, WH Counsel and Karl Rove thought they needed to have a cover story ready in case questions arose, would they have left it to two people who were not involved in the decision-making at all?

    Doesn’t it seem that if they thought they would need a cover story — a pretext they could all agree on before hand that would divert attention from the nefarious motives that the left-wing-nuts want to ascribe to them now — that they would have crafted their own “Talking Points” explaining the personnel moves for the Comm.Staffs to use?

    Instead, Wm Kelley sends an e-mail to the WH Comm staffer and says “Want to give you a heads up — any thoughts on how to minimize the political fallout?” — or words to that effect.

    The staffer, after consulting with her counterpart at DOJ, seems to take the position that no political fallout is likely because its not a national story.

    What this really explains is why DOJ and the Admin. were caught so flat-footed when someone DID ask for an explanation, and then Feinstein got the scandal press all revved up with her baseless claim that it was related to the Cunningham investigation.

    So, DOJ is at every juncture one step behind the curve in trying to get out the reasons for why they were fired, while at the same time — initially — seeking to prevent too much damage being done to the reputations of the US Attorneys.

    Unfortunately, the press seized upon the phrase “Performance related issues” as synonymous with “incompetence” and its not.

    As is clear from the documents released, there were lots of complaints about several of these US Attorneys having to do with unauthorized activies beyond the boundaries of their districts, unwillingness to pursue DOJ/AG policy priorities, and matters of morale and dissatisfaction back in their districts, whether within their offices or in the communities they served.

    Giving the explanations when they were requested, when that request comes after-the-fact, does not make the explanations “pretextual”. The answers were given when the questions were asked, and the answers are supported by documents that were created contemporaneous with the events.

    wls (077d0d)

  45. Can the DoJ investigation and pardon Libby, Cunningham, Ney, Abramoff etc. And fire Fitzgerald. America can’t afford a presidency distracted and hamstrung by Democrats in a time of war. The mid-terms were a lefty power grab, facilated by the sacked USAs who weren’t doing their job. Oh yeah, and hang’em all – the jails are way too full.

    AlanDownunder (e8d02b)


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