Scandal at the Department of Justice
20th March 2007
by gordo
The Inner Circle of a Would-Be Tyrant: Attorney General Alberto Gonzales and former White House Counsel Harriet Miers
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Just after the last election, President Bush fired eight US attorneys who were deemed insufficiently partisan. Rather than uphold the Rule of Bush, they upheld the Rule of Law.
Internal memos indicate that the effort to replace independent-minded US Attorneys began with then-White House Counsel Harriet Miers, and was facilitated by Attorney General Alberto Gonzales. The same Alberto Gonzales who told the senate that he would act to uphold the rule of law, regardless of how this would impact the President:
The Attorney General is a member of the President’s cabinet, a part of his team. But the Attorney General represents also the American people, and his first allegiance must always be to the Constitution of the United States.
So how did we arrive at a place where President Bush is able to completely politicize the Justice Department, and what does the White House team hope to gain through this politicization? A short overview of the case reveals the answers.
Bush Eliminates Checks and Balances
There are 93 US Attorneys, and they are appointed by the President. They act as the chief federal prosecutors in their respective districts, making decisions as to which cases will be pursued and which investigations will be dropped. Because federal crimes often involve politicians and influential political donors, the US Attorneys are expected to maintain a great deal of the White House, and until late last year, most presidents have respected that.
That’s not to say that previous presidents haven’t sought to appoint attorneys of who share their ideology. Incoming presidents routinely fire most US Attorneys when they take over from a president of another party. Nixon, Carter, Reagan, Clinton, and George W Bush replaced all or most of the US attorneys when they took office. But in order to maintain the Rule of Law and avoid politicizing the Justice Department, past presidents have allowed their own appointees to continue in office, even as these attorneys indict and convict the presidents’ allies. After the initial round of appointments, Nixon, Carter, and Clinton fired just one US Attorney apiece. But under Bush, such independence is unacceptable.
So how was this system maintained? What kept other presidents from using their power to fire and replace independent-minded US Attorneys? Why would someone as famously corrupt as Richard Nixon adhere to a gentleman’s agreement that helped federal prosecutors maintain their independence?
The answer is found in the Constitution. The framers gave the Senate veto power over the President’s choices for US Attorney, as a way of checking and balancing his power. Here’s the relevant section, Article II, Section 2, Paragraph 2:
[The President] shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.
Get that? The president gets to choose officers of the US government, including US attorneys, but he has to get the approval of the Senate. This used to prevent the president from replacing US Attorneys for purely political reasons. Not anymore.
Until last spring, unconfirmed US Attorneys could serve just 120 days, after which time they would be replaced by the local district court judge. If the president wanted to have his own choice serve permanently, he had to appoint someone who would be confirmed by the Senate. But a little-known provision in the reauthorization of the Patriot Act allows unconfirmed US Attorneys to serve indefinitely. In effect, this provision nullifies the “advice and consent” clause of the Constitution, as it applies to US Attorneys.
So last Spring, Bush was freed from having to gain Senate confirmation for his choices. Last November, he was freed from having to consider the will of the electorate. And last December, he began replacing qualified, competent US Attorneys with political hacks.
Political Firings
That the US Attorneys were fired for political reasons, rather than for competence issues, is beyond question. Of the eight who were fired, seven received consistently favorable performance reviews. E-mails indicate that the White House and Justice Department coordinated their efforts, and internal memos show that perceived loyalty to the president was a primary factor in determining which US Attorneys would be replaced. It’s also worth noting that Karl Rove, Bush’s chief political adviser, took an active role in coordinating the firings.
And if the firings weren’t politcal, why have we heard so many contradictory stories coming form the White House and the Justice Department? Why, for example, were we told that Karl Rove was not directly involved in the firings? Why did Justice Department officials tell congress that the US Attorneys were fired purely because of job performance issues? And why did they say that the White House was not involved in the firings?
If there is an innocent explanation, what’s with all the lying?
Motivation
Replacing honest US Attorneys with political hacks does five things for the Bush administration:
1) Ensures the pursuit of politically motivated prosecutions.
David Iglesias felt pressured to indict New Mexico Democrats before the election, citing telephone calls from prominent Republican politicians. He resisted the pressure, and is among those US Attorneys who are now looking for a job. Meanwhile, Richard Roper’s office lied to a jury during a high-profile trial which resulted in the closing of America’s largest Muslim relief organization. At the time, the verdict in that case was considered a major victory for Bush’s anti-terror strategy. Despite his dishonesty, or because of it, Roper is still on the job.
2) Punishes investigations into Republican wrongdoing.
Carole Lam prosecuted congressman Duke Cunningham in the biggest bribery case in the history of the US. In normal times, such a success would have helped her career. But this is the Era of Dubya, and Cunningham is a Republican, so Lam was fired.
3) Heads off investigations into White House figures.
The Bush administration has tortured prisoners, “disappeared” detainees into a maze secret prisons, and sent suspects to countries with a history of brutality. They have tapped American phones without warrants, and collected journalists’ calling data without consent. They have infiltrated nonviolent antiwar organizations. Many believe that in the course of these activities, Bush officials broke some laws.
And Bush officials, particularly Attorney General Alberto Gonzales, have never been shy about squelching legitimate investigations into crimes that they may have committed.
4) Gives the GOP control over elections.
The White House has charged that some of the fired US Attorneys were lax in pursuit of voter fraud cases, especially in close races in New Mexico and Washington State.But such charges don’t stand up to scrutiny. It’s true that former US Attorney John McKay failed to file charges against the governor of Washington State after she won a close race, and that David Iglesias did not charge Democrats with attempted voter fraud in New Mexico. But that’s because no such voter fraud existed.
In Washington, McKay’s office followed up on lurid charges of graveyard voting and “lost” ballots, only to find that most of the uncounted ballots had been cast for Democratic Candidate Christine Gregoire, and that there were only eight confirmed instances of dead voters, all of whom cast ballots for Republicans.
And Bush administration claims that David Iglesias neglected his duties in New Mexico don’t pass the laugh test. In reality, the Justice Department was so taken with Iglesias that he was one of two US Attorneys chosen to help instruct prosecutors in the area of– you guessed it– voter fraud.
One last point on this issue: if the Bush administration is really concerned about voter fraud, why was Timothy Griffin chosen to replace fired US Attorney Bud Cummins at the Little Rock office? Timothy Griffin helped to have thousands of homeless people and African-American soldiers “mistakenly” scrubbed from voter rolls in 2004:
The Griffin scheme was sickly brilliant. The RNC sent first-class letters to new voters in minority precincts marked, “Do not forward.” Several sheets contained nothing but soldiers, other sheets, homeless shelters. Targets included the Jacksonville Naval Air Station in Florida and that city’s State Street Rescue Mission. Another target, Edward Waters College, a school for African-Americans. If these voters were not currently at their home voting address, they were tagged as “suspect” and their registration wiped out or their ballot challenged and not counted. Of course, these ‘cages’ captured thousands of students, the homeless and those in the military though they are legitimate voters.
That doesn’t sound like the sort of person you’d make a US Attorney if you wanted to ensure fair elections, does it? In fact, if you wanted to ensure that the elections would NOT be fair, you’d probably fire John McKay and David Iglesias, and hire Timothy Griffin. But there is another ugly aspect to the Griffin appointment, one that brings up the last benefit that comes from replacing nonpartisan US Attorneys:
5) Gives subpoena power to GOP opposition researchers.
Tim Griffin wasn’t chosen from the ranks of America’s prosecutors. He was chosen from the staff of Karl Rove. And for most of the last ten years, Griffin has done opposition research for the Republican Party, digging up dirt on Democratic candidates.
From his office in Little Rock, Arkansas, Griffin will be in a perfect place to delve into the past of two presidential hopefuls: Republican moderate Mike Huckabee, and Democratic front-runner Hillary Clinton. While serving in the office of Karl Rove, Griffin would probably have spent the next two years digging into the past of these two candidates. Now Griffin can use his subpoena power to dig even further.
The Heart of a Dictator
The evidence that the Justice Department is being politicized is overwhelming. Seven of the eight US Attorneys who were fired received consistently high marks in their performance reviews. At least one of their replacements is not a prosecutor, but a political hatchet man. This is the sort of thing that one expects in a dictatorship. In a dictatorship, this sort of partisanship is expected in the prosecutor’s office. Saddam Hussein didn’t just ensure that his prosecutors were members of the Baath Party, he ensured that prosecutors investigated and indicted his political opponents, and that they looked the other way when his allies broke the law.
The difference between Hussein and Bush is that Bush is bound by the Constitution. But when the latest incarnation of the Patriot Act was passed, Bush’s hands were untied. He became the first president in American history to have the power to permanently replace US Attorneys, without having to obtain the consent of the Senate. And as soon as he got that power, he began to craft a plan to enforce party discipline on federal prosecutors.
Of course, most of the attention has been focused not on President Bush, but on his aides. President Bush didn’t suggest firing independent-minded US Attorneys, Harriet Miers did. President Bush didn’t make a list ranking the US Attorneys according to loyalty. That was Alberto Gonzales’ chief aide. President Bush didn’t confer directly with New Mexico Republicans who demanded the firing of David Iglesias. He had Karl Rove do that for him.
But look at the names involved: Gonzales. Miers. Rove. Bush’s domestic policy advisers, all of whom have worked for him since he was Governor of Texas. Again and again, they have worked on his behalf to circumvent the rule of law and aggrandize Bush’s power. And for more than a decade, he has kept them on not despite their activities on his behalf, but because of them.
So Bush bears primary responsibility. He knows the things that his closest aides do, and he promotes his aides when they do them. Their careers have been enhanced in proportion to the amount of power that they have grabbed on Bush’s behalf. Karl Rove went from being a college dropout to being the Chief of Staff of the President of the United States. Alberto Gonzales went from being a young attorney for Enron’s law firm to a seat on the Texas Supreme Court in just five years, and is now the Attorney General of the United States. In just 10 years, Harriet Miers went from being Bush’s personal lawyer to a nomination to the US Supreme Court.
In his lust for power, and in his tendency to reward personal loyalty rather than service to the people, Bush reveals his heart. It is the same heart that has beaten in the breast of every tyrant in history.
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Bonus Information:
Summary: Christian Science Monitor
Complete Coverage: Washington Post
Analysis: Mahablog
Newly Released Documents: US House Judiciary Committee
(cross posted at Liberal Avenger)