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    03-15-08 Harper's-The Gathering Storm at Justice Scott Horto

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    Mark Welkie
    1) In December 2006, at least eight U.S. Attorneys received calls from the Justice Department ordering them to resign. This caused public uproar when it became clear the dismissals were politically motivated. 2) A law review article by former U.S. Attorney John McKay analyzes the scandal and argues the dismissals were an attempt to obstruct justice and politically influence criminal prosecutions. 3) Senior Justice Department officials, including Attorney General Alberto Gonzales, are accused of lying to Congress to cover up the political nature of the dismissals, potentially committing perjury. The role of White House advisor Karl Rove in the scandal is also discussed.

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    03-15-08 Harper's-The Gathering Storm at Justice Scott Horto

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    Mark Welkie
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    1) In December 2006, at least eight U.S. Attorneys received calls from the Justice Department ordering them to resign. This caused public uproar when it became clear the dismissals were politically motivated. 2) A law review article by former U.S. Attorney John McKay analyzes the scandal and argues the dismissals were an attempt to obstruct justice and politically influence criminal prosecutions. 3) Senior Justice Department officials, including Attorney General Alberto Gonzales, are accused of lying to Congress to cover up the political nature of the dismissals, potentially committing perjury. The role of White House advisor Karl Rove in the scandal is also discussed.

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    1) In December 2006, at least eight U.S. Attorneys received calls from the Justice Department ordering them to resign. This caused public uproar when it became clear the dismissals were politically motivated. 2) A law review article by former U.S. Attorney John McKay analyzes the scandal and argues the dismissals were an attempt to obstruct justice and politically influence criminal prosecutions. 3) Senior Justice Department officials, including Attorney General Alberto Gonzales, are accused of lying to Congress to cover up the political nature of the dismissals, potentially committing perjury. The role of White House advisor Karl Rove in the scandal is also discussed.

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    43 views4 pages

    03-15-08 Harper's-The Gathering Storm at Justice Scott Horto

    Uploaded by

    Mark Welkie
    1) In December 2006, at least eight U.S. Attorneys received calls from the Justice Department ordering them to resign. This caused public uproar when it became clear the dismissals were politically motivated. 2) A law review article by former U.S. Attorney John McKay analyzes the scandal and argues the dismissals were an attempt to obstruct justice and politically influence criminal prosecutions. 3) Senior Justice Department officials, including Attorney General Alberto Gonzales, are accused of lying to Congress to cover up the political nature of the dismissals, potentially committing perjury. The role of White House advisor Karl Rove in the scandal is also discussed.

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    of 4

    53407465.

    doc Page 1 of 4

    March 15, 2008

    The Gathering Storm at Justice


    Scott Horton

    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
    53407465.doc Page 2 of 4

    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, “OK.” And he said, “Here’s
    the Senator.” So he handed the phone over, and I recognized the voice
    53407465.doc Page 3 of 4

    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.
    53407465.doc Page 4 of 4

    • 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.

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