Patterico's Pontifications

3/23/2007

Ed Whelan on the U.S. Attorney Firings and the Politicization of DoJ

Filed under: General — Patterico @ 12:05 am



Ed Whelan has been doing excellent work on the issue of the U.S. Attorney firings, and a couple of his posts are worth extensive quotation.

First, we have some useful input on the story I mentioned yesterday about the alleged political interference in the tobacco case. Ed reprints an e-mail from a DoJ official who worked on the case, and adds his emphasis with italics:

AA June 10 editorial said that the Justice Department’s decision to reduce from $130 billion to $10 billion the amount it sought from the major tobacco companies in its fraud case “appears to be the result of political pressure.” It also came to the offensive and unfounded conclusion that the change was not based on the “legal merits” of the case as assessed by “career lawyers.”

I am a senior member of the Justice Department section involved with enforcement of racketeering laws. In 1998 the office of Attorney General Janet Reno asked whether it would be appropriate to bring civil racketeering claims against the tobacco industry for defrauding the public. I recommended that such a lawsuit be brought, and I have been a member of the case’s trial team ever since.

At the trial, Michael C. Fiore testified that a smoking-cessation program that would enable smokers who wished to quit to do so would cost $130 billion and take 25 years. However, the legal requirements that the appeals court established for the case said specifically that any remedy must be limited to addressing future violations of the law by the tobacco companies and may not seek to address the injuries caused by their past fraudulent conduct.

I was concerned that a reviewing court might conclude that Dr. Fiore’s proposal would not satisfy that standard, so I recommended that the department present to the court a modified program designed to comply with the appeals court’s decision. My recommendation was adopted.

With respect to the editorial’s allegation that witnesses were asked to soften their testimony, I was concerned that some witnesses were seeking to propose remedies that would violate the Constitution and laws and that the Justice Department could not endorse such proposals. As a result, the department determined that the witnesses it put on the stand had to include in their testimony a statement that they spoke only for themselves and not for the department — as they then did.

Both my parents died of smoking-related illnesses, and I yield to no one in my desire to devise remedies to help addicted people stop smoking. However, as a public official and an officer of the court, my actions must comport with the rule of law. My actions and those of other career prosecutors involved in this case have done just that.

Whelan has more on this here.

And Whelan responds to David Iglesias’s op-ed “Why I Was Fired” with a post titled “Why Iglesias Was Fired.”

Whelan says: “Iglesias offers not an iota of evidence for his charge that the Bush administration fired him (or any of the other U.S. attorneys) for improper political reasons.” He notes that the only clear case of misconduct was committed by Iglesias:

Iglesias does provide one clear account of improper behavior—his own. In the same paragraph in which he states that “[p]rosecutors may not legally talk about indictments,” he relates that he nonetheless informed Domenici that he didn’t think he would file corruption charges before November. Separately, he has admitted that he failed to comply with DOJ directives requiring him to report Domenici’s and Wilson’s improper contacts.

Finally, Whelan echoes recent comments from our resident Assistant U.S. Attorney WLS, regarding the importance of home state senators. Whelan says:

Understood in a very broad sense, “politics” probably played the same role in Iglesias’s ouster that it had played in his initial selection. For better or worse, same-party senators have extraordinary influence in the selection of U.S. attorneys for their home districts. Domenici was largely responsible for Iglesias’s appointment. Once he made the fact of his dissatisfaction with Iglesias clear to the Administration, it would hardly be surprising that the Administration would look to replace him at an appropriate time. (It is highly doubtful that it would matter to the Administration whether Domenici offered any reasons, though it’s worth noting that he has stated that he had growing frustration with Iglesias’s alleged failure to move expeditiously on immigration and drug cases.) Giving a home-state senator so much clout may not be the best practice (though there are around 100 senators who like that clout), and it’s understandable that Iglesias would feel aggrieved by it, but it would not be improper, much less scandalous.

I especially like Whelan’s clear way of distinguishing between “politics” understood broadly, which probably was an issue, and politics in the sense of influencing (or trying to influence) political prosecutions — a far more serious issue that there is scant evidence to support.

21 Responses to “Ed Whelan on the U.S. Attorney Firings and the Politicization of DoJ”

  1. Ummm…let me get this straight…

    So a subcommittee of the senate is issuing subpoenas to various members of the executive branch because the executive branch’s termination of a political appointee may have been influenced by a senator?

    Isn’t this sort of saying that the senate should feel free to criticize the WH for not listening to them more often…but should have hearings to create a scandal if the WH actually does listen to them?

    cthulhu (a0733a)

  2. This is good reporting by Whelan. I was wondering about the Iglesias admission after he spoke to Chris Matthews on Hardball last night. Matthews went into politics, but Iglesias repeated his claim that he told Domenici that he would not be bringing charges in the corruption case before the November elections.

    What is new to me is that Whelan reports Iglesias never informed the DoJ of the phone calls from Wilson and Domenici. That doesn’t bode well for Iglesias.

    Gabriel Sutherland (90b3a1)

  3. Iglesias’ testimony to Congress included his account of the Domenici call and his failure to report it. It seems to me whether Iglesias offers evidence, in whatever amount, does not preclude a reasonable person, examining what is publically known about his firing, from questioning how he fell into Bush’s displeasure.

    almcq (ddf6f5)

  4. Web Reconnaissance for 03/23/2007…

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

    The Thunder Run (59ce3a)

  5. Iglesias offered a plausible excuse for failing to contact DOJ — even though it is a strict rule that an contact with a DOJ employee by a member of the House/Senator or their staff must be reported.

    Iglesias explained that Heather Wilson was a long-time friend, as they had campaigned together in the late 1990s when Iglesias ran for — and lost — a race New Mexico Att.Gen.

    He said Domenici was in many ways a mentor and protege in NM GOP politics, and in fact Domenici was the one who recommended him to the WH for the US Attorney’s position.

    So, when he got the calls from them that he thought were inappropriate, it left him in a terrible position — follow DOJ guidelines and report the call and the substance, thereby putting Wilson and Domenici in a tough spot weeks before the election, or simply let the matter drop since the calls were short and neither had urged him to take any specific action. He chose the latter.

    wls (077d0d)

  6. test

    AF (f0c94f)

  7. Memo: Illegal immigrants in Texas must have 6 arrests before feds prosecute

    Can you say “malfeasance?” Are we still supposed to believe Lam was fired for not prosecuting enough illegals?

    petit bourgeois (375601)

  8. http://www.realcities.com/mld/krwashington/16962753.htm

    New U.S. attorneys seem to have partisan records
    By Greg Gordon, Margaret Talev and Marisa Taylor
    McClatchy Newspapers
    More coverage | U.S. attorneys scandal

    WASHINGTON – Under President Bush, the Justice Department has backed laws that narrow minority voting rights and pressed U.S. attorneys to investigate voter fraud – policies that critics say have been intended to suppress Democratic votes.

    Bush, his deputy chief of staff, Karl Rove, and other Republican political advisers have highlighted voting rights issues and what Rove has called the “growing problem” of election fraud by Democrats since Bush took power in the tumultuous election of 2000, a race ultimately decided by the U.S. Supreme Court.

    Since 2005, McClatchy Newspapers has found, Bush has appointed at least three U.S. attorneys who had worked in the Justice Department’s civil rights division when it was rolling back longstanding voting-rights policies aimed at protecting predominantly poor, minority voters.

    Another newly installed U.S. attorney, Tim Griffin in Little Rock, Ark., was accused of participating in efforts to suppress Democratic votes in Florida during the 2004 presidential election while he was a research director for the Republican National Committee. He’s denied any wrongdoing.

    Justice Department spokesman Brian Roehrkasse said the four U.S. attorneys weren’t chosen only because of their backgrounds in election issues, but “we would expect any U.S. attorney to prosecute voting fraud.”

    Taken together, critics say, the replacement of the U.S. attorneys, the voter-fraud campaign and the changes in Justice Department voting rights policies suggest that the Bush administration may have been using its law enforcement powers for partisan political purposes.

    The Bush administration’s emphasis on voter fraud is drawing scrutiny from the Democratic Congress, which has begun investigating the firings of eight U.S. attorneys – two of whom say that their ousters may have been prompted by the Bush administration’s dissatisfaction with their investigations of alleged Democratic voter fraud.

    Bush has said he’s heard complaints from Republicans about some U.S. attorneys’ “lack of vigorous prosecution of election fraud cases,” and administration e-mails have shown that Rove and other White House officials were involved in the dismissals and in selecting a Rove aide to replace one of the U.S. attorneys. Nonetheless, Bush has refused to permit congressional investigators to question Rove and others under oath.

    Last April, while the Justice Department and the White House were planning the firings, Rove gave a speech in Washington to the Republican National Lawyers Association. He ticked off 11 states that he said could be pivotal in the 2008 elections. Bush has appointed new U.S. attorneys in nine of them since 2005: Florida, Colorado, Wisconsin, Minnesota, Iowa, Arkansas, Michigan, Nevada and New Mexico. U.S. attorneys in the latter four were among those fired.

    Rove thanked the audience for “all that you are doing in those hot spots around the country to ensure that the integrity of the ballot is protected.” He added, “A lot in American politics is up for grabs.”

    The department’s civil rights division, for example, supported a Georgia voter identification law that a court later said discriminated against poor, minority voters. It also declined to oppose an unusual Texas redistricting plan that helped expand the Republican majority in the House of Representatives. That plan was partially reversed by the U.S. Supreme Court.

    Frank DiMarino, a former federal prosecutor who served six U.S. attorneys in Florida and Georgia during an 18-year Justice Department career, said that too much emphasis on voter fraud investigations “smacks of trying to use prosecutorial power to investigate and potentially indict political enemies.”

    Several former voting rights lawyers, who asked to remain anonymous for fear of antagonizing the administration, said the division’s political appointees reversed the recommendations of career lawyers in key cases and transferred or drove out most of the unit’s veteran attorneys.

    Bradley Schlozman, who was the civil rights division’s deputy chief, agreed in 2005 to reverse the career staff’s recommendations to challenge a Georgia law that would have required voters to pay $20 for photo IDs and in some cases travel as far as 30 miles to obtain the ID card.

    A federal judge threw out the Georgia law, calling it an unconstitutional, Jim Crow-era poll tax.

    In an interview, Schlozman, who was named interim U.S. attorney in Kansas City in November 2005, said he merely affirmed a subordinate’s decision to overturn the career staff’s recommendations.

    He said it was “absolutely not true” that he drove out career lawyers. “What I tried to do was to depoliticize the hiring process,” Schlozman said. “We hired people across the political spectrum.”

    Former voting rights section chief Joseph Rich, however, said longtime career lawyers whose views differed from those of political appointees were routinely “reassigned or stripped of major responsibilities.”

    In testimony to a House Judiciary subcommittee hearing this week, Rich said that 20 of the 35 attorneys in the voting rights section have been transferred to other jobs or have left their jobs since April 2005 and a staff of 26 civil rights analysts who reviewed state laws for discrimination has been slashed to 10.

    He said he has yet to see evidence of voter fraud on a scale that warrants voter ID laws, which he said are “without exception … supported and pushed by Republicans and objected to by Democrats. I believe it is clear that this kind of law tends to suppress the vote of lower-income and minority voters.”

    Other former voting-rights section lawyers said that during the tenure of Alex Acosta, who served as the division chief from the fall of 2003 until he was named interim U.S. attorney in Miami in the summer of 2005, the department didn’t file a single suit alleging that local or state laws or election rules diluted the votes of African-Americans. In a similar time period, the Clinton administration filed six such cases.

    Those kinds of cases, Rich said, are “the guts of the Voting Rights Act.”

    During this week’s House judiciary subcommittee hearing, critics recounted lapses in the division’s enforcement. A Citizens Commission on Civil Rights study found that “the enforcement record of the voting section during the Bush administration indicates this traditional priority has been downgraded significantly, if not effectively ignored.”

    Rep. Jerrold Nadler, D-N.Y., who chaired the hearing, said, “The more stringent requirements you put on voting in order to get rid of alleged voter fraud, the more you’re cutting down on legitimate people voting.”

    Acosta, the first Hispanic to head the civil rights division, said he emphasized helping non-English speaking voters cast ballots. In 2005, he told a House committee that he made an unprecedented effort to monitor balloting in 2004 to watch for discrimination against minorities.

    Justice spokesman Roehrkasse said Acosta “has an impressive legal background, including extensive experience in government and the private sector” and as a federal appeals court clerk.

    A third former civil rights division employee, Matt Dummermuth, 33, was nominated to be U.S. attorney in Cedar Rapids, Iowa, last December. Before his appointment, he was counsel to the assistant attorney general for civil rights. He was a special assistant to the civil rights chief from 2002 to 2004.

    Details of his involvement in reviewing voter rights couldn’t be determined, and Dummermuth, a Harvard Law School graduate, didn’t return calls seeking comment.

    Bush administration officials have said that no single reason led to the firings of the eight U.S. attorneys. But two of those who were forced to resign said they thought they might have been punished for failing to prosecute Democrats prior to the 2006 congressional elections or for not vigorously pursuing Republican allegations of voter irregularities in Washington state and New Mexico.

    Former U.S. Attorney David Iglesias of New Mexico has said he thought that “the voter fraud issue was the foundation” for his firing and that complaints about his failure to pursue corruption matters involving Democrats were “the icing on the cake.”

    John McKay, the ousted U.S. attorney for western Washington state, looked into allegations of voter fraud against Democrats during the hotly contested governor’s race in 2004. He said that later, when top Bush aides interviewed him for a federal judgeship, he was asked to respond to criticism of his inquiry in which no charges were brought. He didn’t get the judgeship.

    Rove talked about the Northwest region in his speech last spring to the Republican lawyers and voiced concern about the trend toward mail-in ballots and online voting. He also questioned the legitimacy of voter rolls in Philadelphia and Milwaukee.

    One audience member asked Rove whether he’d “thought about using the bully pulpit of the White House to talk about election reform and an election integrity agenda that would put the Democrats back on the defensive.”

    “Yes, it’s an interesting idea,” Rove responded.

    Despite the GOP concerns, Bud Cummins, the Republican-appointed U.S. attorney in Arkansas who was fired, said he had “serious doubts” that any U.S. attorney was failing to aggressively pursue voter fraud.

    “What they’re responding to is party chairmen and activists who from the beginning of time go around paranoid that the other party is stealing the election,” Cummins said. “It sounds like to me that they were merely responding to a lot of general carping from the party, who had higher expectations once the Republican appointees filled these posts that there would be a lot of voting fraud investigations. Their expectations were unrealistic.”

    Griffin, the interim U.S. attorney in Arkansas who’s replaced Cummins, was a Rove protege and a former Republican National Committee research director. He was accused of being part of an attempt to wipe likely Democratic voters off the rolls in Florida in 2004 if they were homeless or military personnel.

    Griffin couldn’t be reached for comment.

    Ed Gillespie, then the RNC chairman, said the Republican Party was following election laws and trying to investigate voter fraud by sending out mailers to addresses of registered voters. If the notices came back, he said, the names were entered into a database and checked to see if the voters were listing actual residences.

    “The Republican National Committee does not engage in voter suppression,” he said. “The fact that someone was trying to prevent voter fraud should not disqualify someone from being U.S. attorney.”

    McClatchy Newspapers correspondents Tish Wells and Ron Hutcheson contributed to this report.

    AF (f0c94f)

  9. http://www.talkingpointsmemo.com/archives/013212.php

    Like Atrios, I’m a bit mystified by Michael Kinsley’s apparently determined obtuseness about the US Attorney Purge. All the more so since of all people Kinsley was probably the guy who inspired me to get into the opinion journalism business in the first place.
    It’s all worth a run-down, a refresher on where we are in this whole sordid mess.
    First, is this about firings? Kinsley is still mulling over whether this is comparable to Bill Clinton’s entirely normal dismissal of US Attorneys when he came into office. Would it be as big a deal if the Bush White House had fired all the US Attorneys at the start of the second term, as folks at the White House first seemed to have considered?
    The firings were not the offense. They were the clue that suggested the offense. As the Congressional Research Service has shown, over the last twenty-five years only ten US Attorneys have been dismissed other than at the beginning of a new president’s term of office. And of those eight were for clear cause. For instance, one of them bit a stripper on the arm in a night club. And that, not surprisingly, led to his ouster.
    To quote the CRS report …

    In virtually all of those 10 previous cases, serious issues of personal or professional conduct appeared to be the driving issue. Prior to December, for example, only two U.S. Attorneys were outright fired for improper, and in one case criminal, behavior. The CRS report identifies six other U.S. Attorneys who resigned during the 25-year period who were implicated in news reports of “questionable conduct.” For two others, the CRS was unable to determine the cause.

    …In any case, ten times over twenty five years and in eight of those cases for clear and publicly aired reasons.
    And then on one day, secretly and with no explanation, seven get canned. And several are involved in corruption investigations targetting Republicans. The first public explanation is that they were fired for poor performance. But then it turns most were among the highest performing US Attorneys in the country. Add in the fact that one of the eight was overseeing one of the broadest ranging and historic public corruption cases in US history and … well, it all got our attention.
    Then, only a little digging revealed clear evidence that two of the US Attorneys were dismissed for not pursuing bogus claims of Democratic ‘voter fraud’.
    Now, Kinsley seems to have bought in to David Brooks artfully laddled line that some of the firings seem to have been for partisan political reasons (bad) while others were for policy political reasons (not necessarily bad). But with all due respect, like history repeating itself, it only looks that way to those who don’t know the details.
    One point not many have yet noticed is that the Justice Department actually singled-out David Iglesias for his expertise on voter fraud issues and selected him to train other US Attorneys on voter fraud issues — so great was their confidence in his grasp of the issue and his approach to it on the policy level. The only reason he got canned was because he didn’t indict specific Democrats who Republican operatives and officeholders wanted indicted.
    With Carol Lam, looking closely even at the emails the White House has allowed the Justice Department to release and it’s clear that most of the Justice Department’s dealings with Lam were coordinating with her on defending the policies she was pursuing against outside criticism. Given that this is being proferred as the after-the-fact excuse for her firing it is surpassingly curious that there appears not to be a single email showing anybody at the Justice Department or the White House asking her to change anything she was doing. The emails that show DOJ and White House officials brainstorming after the fact to come up with reasons for why they fired different prosecutors.
    It’s not that Lam was fired for not following administration policies on immigration. It’s simply the one instance where the Attorney General and the White House are trying hardest to make that case. And it’s just not convincing.
    There are many people in this conversation trying to avoid the issues, confuse the issues or just ignore them. And more than a few people are just plain confused. But it’s not that complicated. Administration officials have repeatedly and demonstrably lied about the firings. And there is now abundant evidence of a pattern of using the president’s power to hire and fire US Attorneys to stymie public corruption investigations of Republicans and use the Justice Department to harass Democrats by mounting investigations of demonstrably bogus ‘voter fraud’ claims. It’s really that simple.

    AF (f0c94f)

  10. I haven’t been here for a while. I see that patterico is still writing sensible commentary, and AF is still spewing the same old bilge.

    SmokeVanThorn (2a3e31)

  11. Stop Smoking (crack) and start reading

    AF (f0c94f)

  12. AF

    You assumption that only 10 US Attorneys have been fired for cause is premised upon the misconception that every US Attorney who is replaced for cause is done so overtly.

    Look at what was planned here. Several US Attorneys for whom cause clearly existed, were nevertheless provided the paperwork to make the public face on the action appear that it was the US Attorneys choice to step down.

    Do you think the Bush WH invented the idea of calling a US Attorney and saying “We’ve decided to give someone else a chance, we’d like you to resign”??? The resulting paperwork always looks like it was simply a matter of the US Attorney wanting to move on to other opportunities, but the truth is in the phone call. Resign or else.

    All the US Attorneys here — except Carol Lam — were prepared to go quietly because they understood the ground rules under which they got and held the jobs. Lam went public, and Feinstein made spurious suppositions that only ignited the interest of the scandal press.

    And, for the record, the US Attorney who bit the stripper and got fired was Al Gore’s lead Florida counsel in the recount, Kendall Cofey.

    And, in addition to biting the stripper, another less publicized angle is the fact that he charged $1500 worth of champagne on his government credit card during the same afternoon out – which followed an acquittal that day in a big drug trafficking case.

    WLS (b67953)

  13. 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 prosecution numbers in those districts,” Tasia Scolinos, a senior public affairs specialist at the Justice Department, told Catherine Martin, a White House communications adviser, in an e-mail.”

    AF (f0c94f)

  14. I’m a little concerned that we have an Assistant US Attorney (a position my brother once held, BTW) who appears never to have seen an episode of Murder She Wrote or Columbo. Here he is, repeating with a straight face, that there was good cause to replace the various US Attorneys, at the same time that another document dump (suspiciously timed for the Friday evening news black hole) shows that DoJ was searching for excuses to explain the firings retroactively.

    WLS also doesn’t know that the coordinated discovery of the multiple dismissals really didn’t come from Carol Lam, but from the work of liberal bloggers, particularly Josh Marshall. It was only after the DoJ claimed that the dismissals were for performance reasons—a charge which they have had some considerable trouble backing up with evidence—that Iglesias and McKay started talking about what sound like the real reason for dismissal: their refusal to participate in Rovian fabrication of election fraud charges against Democrats. Once we hear that, then the dismissal of Carol Lam, who had was in the middle of an enormous corruption investigation that had resulted in the longest prison term ever meted out to a Congressman for corruption, looks suspicious, too. So what if she was behind in immigration and jaywalking cases? Can there be any reasonable doubt that the White House didn’t want any more light shone on the CIA/GOP/MZM scandal?

    And how about that clever little Patriot Act provision that allowed for permanent interim appointees? And the obvious falsity of AG Gonzales’s non-involvement claim?

    It’s hard to believe anyone who passed the bar doesn’t see the absurdity of the White House defenses, unless he really, really doesn’t want to.

    Andrew J. Lazarus (eff658)

  15. So where is everybody?

    Off somewhere maliciously failing to take you seriously, where else?

    McGehee (5664e1)

  16. Kevin Drum has a list of reasons to be suspicious of the Gonzales/WLS fairy tale version. He didn’t even get them all, missing the bogus claims that neither Gonzo nor Rove were in on the firings. Five of the eight fired USAs were ranked in the top third of all USAs. Can we put the “performance-related” disinformation to bed now, please? So why these attorneys? Well, five of eight had either failed to pursue bogus charges against Democrats or were investigating (successfully) charges against Republicans.

    The Administration defenses are really just what the anthropologists call a myth, a kind of shared fairy tale. Any connection to reality is accidental.

    Andrew J. Lazarus (eff658)

  17. Thanks for the link. I have just written a post debunking several items on the list as flat falsehoods.

    Patterico (04465c)

  18. Nice design! kabababrubarta

    kabababrubarta (40a54b)

  19. Maybe Whelan would have liked more influence to have been asserted by Jeff Skillings, and Ken Lay in Texas to have removed the DOJ prosecutors ? If removal of U S. Attorney DOJ Esquires is so much a political food fests, so much at the whim, then any high roller would make the DOJ a place of anarchy. Some seem to be moving for that. Maybe they won’t rest until the justice system in the Bush era is totaly wrecked. Katrina, and other fiascos just keep piling up, and some seem to be rooting ’em on, which is really the unfortunate
    part of the whole sorry spectale.

    Jack Merit (de5a83)

  20. The firings were by black listing based on undue influence from political cons. Notice, no detailed memo to support the factual and related basis for the firings. Surely, Ken Lay would luved to have had fired about 10 DOJ attorneys.
    And what is amazing, is the disclosures that at the top of the DOJ in D. C.( hovering around AG GONZO) were such light weights who had no substantial court room litigation experience.
    Cheney and Bush have all these neocon wackos implanted in the top tiers of the government to make the federal government so it won’t function.
    It seems to be some hate towards a proper functioning Government that Bush has:
    Why; so his pals can spin off large wads of $$$$$$, from federal gravey contract booty, and never be held accountable.
    Having an unaccountable non-functioning Government is part of the Bush game plan.
    Who pays or all of that: you and your kids….
    So, wise up, demand something be done befofe Bush totally wrecks the entire Nation.

    Jack Merit (de5a83)


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