THE GATHERING STORM AT JUSTICE
By Scott Horton
March 15, 2008
I don’t in the ordinary course review and recommend law review articles, but I’ve just come across one that is close to indispensable for public affairs junkies. On December 7, 2006 -- the anniversary of the attack on Pearl Harbor -- at least eight U.S. attorneys received phone calls from Michael Battle, the executive director of the Office of U.S. Attorneys at the Justice Department. Each was essentially ordered to submit his or her resignation.
The Administration attempted to sell the event as a routine personnel turn-over. But Congress and the public weren’t buying. After a series of hearings at which senior members of the Administration committed acts of perjury, there was a public uproar. In its wake the entire senior echelon of political appointees at the Justice Department were forced to leave office under a cloud and subject to an investigation into potentially criminal misconduct, as were a number of senior White House figures, most prominently including Bush’s senior political advisor, Karl Rove.
The storm has died down a bit now as the Justice Department completes its own internal investigation of what happened. This has been led by Inspector General Glenn Fine and by the Office of Professional Responsibility. I understand that this investigation is approaching its conclusion now, and that a report is likely in the course of the spring. The report will almost certainly be explosive.
Of George W. Bush’s cohort of U.S. Attorneys, one of the most highly regarded -- perhaps even the most highly regarded -- was John McKay, who headed the office in Seattle. He was included in the December 7 massacre. McKay has now authored a law review article that examines the history of the scandal, reviews the legal issues that it raises, and provides some observations on the trajectory the matter is likely to take going forward. It’s called “Train Wreck at the Justice Department,” and it was published in volume 31 of Seattle University Law Review. Here are some key elements of the article, which really merits being read in its entirety.
A TORRENT OF LIES UNDER OATH
The falsehoods presented, under oath, to Congressional committees were sweeping. They included varying and at points inconsistent accounts of the reasons for the dismissals -- which internal documents from Justice reflect were often fabricated on the eve of hearings, sometimes after attempts to synch a false story with the White House. This was largely part of an effort to disguise the obvious fact that the dismissals were the implementation of a political plan which had been formulated in the White House, largely under the guidance of Karl Rove. They were also designed to disguise the fact that an elaborate scheme had been concocted to circumvent the process through which candidates are reviewed and confirmed by the Senate using a secret amendment to the USA PATRIOT Act.
Participants in the conspiracy to misdirect Congress included Attorney General Alberto Gonzales, Deputy Attorney General Paul J. McNulty, Associate Attorney General Will Moschella -- the top three figures at the Justice Department -- and a stream of staffers led by Michael Elston, Kyle Sampson and Monica Goodling.
"After a flurry of phone calls among the U.S. Attorneys who had been ordered to resign, many of those former U.S. Attorneys concluded that the Attorney General was lying to the Senate about the intent of the Justice Department to seek Senate confirmation of their prospective replacements. In Seattle, for example, no known efforts had been underway by either the White House or the Justice Department to recruit or interview candidates for my replacement. In spite of my frequent requests for guidance, Justice officials had not revealed their plans, and no internal candidates had been contacted by the Justice Department or the White House. With only a few days remaining before our departures, it was clear the Justice Department planned to name their own interim U.S. Attorneys under the new powers granted them in the amendments to the USA PATRIOT Act. Other fired U.S. Attorneys confirmed similar patterns in San Francisco and San Diego, and we also knew that an interim U.S. Attorney had been serving in Kansas City for many months."
The article documents a series of further conscious falsehoods from Gonzales and other senior figures of the Justice Department related to similar issues.
THE WHITE HOUSE IN CHARGE
Perhaps the hallmark of the administration of justice in the Bush era is its complete politicization. No aspect of the process of law enforcement seems beyond the reach of political meddling. This was dramatically demonstrated when Senator Sheldon Whitehouse disclosed early in the hearing process that virtually every political staffer in the White House had been authorized to meddle with criminal investigations and prosecutions. But the reach of Karl Rove was most apparent, and his fingerprints are all about the December 7 scandal. Moreover, when senior figures of the New Mexico G.O.P. decided they wanted to fire their U.S. attorney because he had refused to prostitute his office for electoral political purposes, they went straight to the man who could obviously make it happen: Karl Rove.
McKay reviews the politically motivated dismissal of Iglesias in some detail, and shows the focal role of Rove and the involvement of a number of further political operatives.
"During 2006 in New Mexico, then-U.S. Attorney David Iglesias led an investigation which eventually resulted in the indictment and conviction of the Treasurer of the State of New Mexico, an elected Democrat. Iglesias has testified that he received phone calls from Senator Pete Domenici and U.S. Representative Heather Wilson (R-N.M.), in which he was allegedly pressured to accelerate the indictment in order for it to occur before the November re-election campaign of Representative Wilson. Iglesias responded to questions before the Senate on March 6, 2007:
"SENATOR SCHUMER: Please describe for the committee now, as best you can, your entire recollection of that communication. Please tell us what Senator Domenici said and what you said.
"DAVID IGLESIAS: Thank you, Sir. I was at home. This was the only time I’d ever received a call from any member of Congress while at home during my tenure as United States attorney for New Mexico. Mr. Bell called me. I was in my bedroom. My wife was nearby. And he indicated that the senator wanted to speak with me. He indicated that there were some complaints by some citizens, so I said, “O.K.” And he said, “Here’s the Senator.” So he handed the phone over, and I recognized the voice as being Senator Pete Domenici. And he wanted to ask me about the matters of the corruption cases that had been widely reported in the local media. I said, “All right.” And he said, “Are these going to be filed before November?” And I said I didn’t think so, to which he replied, “I’m very sorry to hear that.” And then the line went dead.
"SENATOR SCHUMER: So in other words, he hung up on you?
"MR. IGLEGIAS: That’s how I took that. Yes, Sir."
The public record shows that Domenici, Heather Wilson, and other figures of the New Mexico G.O.P. lobbied for Iglesias’s dismissal because he refused their demands that a high-profile Democrat be indicted on a schedule calculated to influence the 2006 elections. The demands made were arguably a felony: an attempt to corruptly influence a criminal investigation. They were ultimately implemented through Iglesias’s dismissal.
McKay calls this a process of obstruction of justice.
"The elements of a prima facia case of obstruction of justice are (1) the existence of the judicial proceeding; (2) knowledge of or notice of the judicial proceeding; (3) acting “corruptly” with intent to influence, obstruct, or impede the proceeding in the due administration of justice; and (4) a nexus (although not necessarily one which is material) between the judicial proceeding sought to be corruptly influenced and the defendant’s efforts. The omnibus clause of Section 1503(a) is a “catchall” provision, which is broadly construed to include a wide variety of corrupt methods.
Facts surrounding the dismissal of Carol Lam in the Southern District of California, and the equally suspicious but more graceful edging out of the U.S. attorney in Los Angeles also point to obstruction of justice -- in those cases for purposes of freezing or stopping in its tracks a series of criminal investigations involving Republican political officeholders and senior figures at the CIA.
This conduct probably runs afoul of several other statutes. One is the Hatch Act, which “limits the political activities of federal employees in the interests of promoting efficient, merit-based advancement, avoiding the appearance of politically-driven justice. . .”
THE NEXT STEPS
At this point on the basis of the public record alone, no report by the Inspector General could credibly dismiss the serious charges which have been leveled against senior former Justice Department and White House figures connected to the December 7 events. Moreover, an examination of other cases points to rampant, likely criminal manipulation of prosecutions in a number of other cases involving U.S. attorneys in Birmingham, Jackson, Montgomery, Pittsburgh, Philadelphia, and Milwaukee. The recent exposé by CBS News "60 Minutes" links Karl Rove directly to the fabricated charges brought against former Alabama Governor Don Siegelman. And notwithstanding the exposure of the fraud through which he was prosecuted, Siegelman remains in prison in Louisiana today, cleaning latrines.
There are two clear steps which must follow the release of the Inspector General’s report:
* Appointment of a special prosecutor with full authority to investigate and prosecute those involved in criminal conduct associated with this affair.
* Commencement of hearings in the House Judiciary Committee to fully explore the role played by the White House in the misconduct identified in the Inspector General’s report.
The issues surrounding the appointment of a special prosecutor will be numerous. It will be a critical test for the independence and objectivity of Attorney General Mukasey. There are already grounds to suspect that he gave some form of assurance that he would not appoint a special prosecutor in the course of political meetings leading up to his nomination. That is disturbing and a disappointment. If Mukasey were to fail to act under circumstances as compelling as this, it would provide cause for his removal from office.
Any special prosecutor appointed must be a person of unquestioned integrity and professional acumen and not be a person who is or has been involved in partisan politics of any flavor. Moreover, the special prosecutor must be given authority to fully pursue charges relating to the politicization of the U.S. attorney’s office and his remit should not be limited to the U.S. attorney’s dismissed on December 7, 2006. (Note that among other things, Gonzales, McNulty, and others continue to maintain their silence in the face of questioning under oath as to the actual number of U.S. attorneys dismissed in this political process).
Further, the special prosecutor must be in fact independent in his pursuit of these matters. Mukasey, his deputy, and other senior figures in the Department of Justice are hopelessly politically conflicted and cannot credibly purport to exercise any authority over the process. The manner in which Deputy Attorney General James Comey authorized the investigation and work of Patrick Fitzgerald on the Plamegate matter continues to furnish an example of how this process can and should be handled.
But we should also keep in mind that the jurisdictional basis for the Inspector General’s review is formally limited to the Justice Department and its employees. Therefore the Judiciary Committee in the House of Representatives should convene its own hearings to follow up on the trail to the extent it goes into the White House. In particular the involvement of Karl Rove and Harriet Miers must be fully tested, using the subpoena power, and invoking the power of impeachment if necessary. No claims of Executive Privilege may be lawfully raised to obstruct these hearings, and they should proceed as a matter of urgency and priority.
TRAIN WRECK AT THE JUSTICE DEPARTMENT
By John McKay
Seattle University Law Review
Volume 31 (2008)
John McKay served as United States Attorney for the Western District of Washington from October 2001 until he and eight others were ordered to resign, which he did in January 2007. He is currently Professor from Practice at Seattle University School of Law where he teaches Constitutional Law of Terrorism and National Security Law. He wishes to thank his research assistant, Peter A. Talevich, for his invaluable aid in the preparation of this Article.
In a series of early morning phone calls on December 7, 2006, seven United States Attorneys were ordered to resign. Despite initial denials, it would later be revealed that two other U.S. Attorneys had also been ordered to submit their resignations, bringing the total number to nine. Each was given no explanation for the dismissal and most were led to believe that they alone were being dismissed, raising the specter of unstated wrongdoing and encouraging silent departures. Those dismissed uniformly cited the maxim that they “served at the pleasure of the President” and most sought to avoid publicly disputing the Justice Department or the White House.
So what happened? Why were the nine dismissed? Were political considerations allowed to trump the proud heritage of non-partisan, independent prosecutions in a Justice Department widely trusted as the guardian of civil rights? Did the White House or senior Justice Department officials direct the removal of U.S. Attorneys for failing to satisfy local partisans or to retaliate for certain public corruption prosecutions? Have officials lied to cover up wrongdoing and to avoid criminal prosecution? Can the damage to the Justice Department be undone, restoring the role of federal prosecutors as disdainful of politics and devoted to accountability, fairness, and the firm execution of the nation’s laws? These questions were the subject of a public forum on May 9, 2007, sponsored by Seattle University School of Law, and serve in part as the basis for this Article by one of the participants of the forum (and a fired U.S. Attorney).[Note 1: This Article follows Seattle University Law School’s “Public Policy Forum -- United States Attorneys: Roles and Responsibilities” held in Seattle on May 9, 2007. The author is grateful to the authors of other articles submitted herein, in particular Professor Emeritus James Eisenstein of Pennsylvania State University and Professor Laurie Levenson of Loyola Law School.]
I. BACKGROUND TO A SCANDAL
When I arrived at my Seattle office early on the morning of December 7, 2006, a typically dark and rainy day, I had a message to call Michael Battle, then-Director of the Executive Office for United States Attorneys in the Department of Justice.[Note 2: Battle had served as U.S. Attorney in the Western District of New York. He resigned from the Justice Department on March 16, 2007.] Although a friend, his tone was terse as he told me that “the Administration wanted a change” and that I should “move on” by the end of the following month. (See link above for the rest of the article.)