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An Appearance Of Impropriety At Justice

In an article regarding the two U.S. Attorneys, Ronald C. Machen Jr. and Rod J. Rothstein, who have been appointed to run joint independent investigations into the leaking of classified information regarding drone strikes and cyber warfare to The New York Times, Jim Geraghty makes the following observation:

The Department of Justice describes the 93 U.S. Attorneys as “the nation’s principal litigators under the direction of the Attorney General.” Each one manages investigations and prosecutions in a given state or a portion of a state. Forty-seven of these attorneys have not donated any money to any candidates for office in the past six years, according to records available from the Center for Responsive Politics.

Collectively, the remaining 46 have donated $235,651 to President Obama, the DNC, and Democratic candidates since January 1, 2007. Not one has donated to any Republican candidate. Of the 46 who donated, 36 donated to President Obama’s presidential campaign in 2008, or his reelection campaign this year, or both, for a total of $77,782.

So, approximately 1/2 of the 93 U.S. Attorneys, all but 5 of whom were appointed by a Democratic President (the other 5 are holdover’s from the Bush Administration, have been politically active enough in the past six years to contribute to a campaign or political organization. In and of itself, this isn’t that much of a surprise if only because it’s because of political connections that most of these positions end up getting filled in the manner that they do. Nor is it surprising that these 46 would be contributing to Democrats given that they were being appointed by a Democratic President. Is it a problem? I’m not sure. One would prefer that the chief on-the-ground legal representatives of the Federal Government be apolitical, but this is the real world and in the real world it’s always been politics that gets you ahead in, well, politics.

The problem arises, some on the right are saying in the person of Robert Machen, Jr., one of the two attorneys appointed to investigate the leaks story, an investigation that will, of necessity, include investigating people with close ties to the President. Is there a conflict of interest in having someone who’s donated money to the candidate and his political party investigating members of that politician’s inner circle? As a matter of law and legal ethics, the answer is no but I can certainly see why there would be an appearance of impropriety here. Situations like this, of course, are one of the reasons why, ever since Watergate there have been attempts to create a mechanism for some kind of independent counsel that would be able to investigate the Executive Branch free of the obvious conflict of interest that develops when the Justice Department attempts to do so.  Indeed, as the infamous Saturday Night Massacre showed, even an outside counsel appointed by the Attorney General isn’t necessarily independent enough if the President is determined to try to shut an investigation down. In 1978, Congress passed the Ethics In Government Act, which included a provision allowing for the appointment of an Independent Counsel that would be selected by a panel of Federal Judges when the need for such a counsel arises. The Supreme Court upheld the Constitutionality of the Independent Counsel in 1988, but the controversy that came to surround the office during the Clinton Era led to Congress agreeing to let that portion of the law lapse in 1999 rather than renewing it. Since then, we’ve been back in the world of Watergate Era “Special Prosecutors” such as Patrick Fitzgerald, who investigated the Valerie Plame matter.

Perhaps we need to return to something modeled on the Independent Counsel Act so that we avoid conflicts like this in the future. With respect to the leaks investigation it does help somewhat that a parallel investigation is being run by Rod Rothstein, who is a holdover from the Bush Administration, but we still have a situation where the Obama Administration is essentially investigating itself on the question of who may have leaked potentially classified material to The New York Times. At the very least that’s an appearance of impropriety.

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About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. Drew says:

    ” Is there a conflict of interest in having someone who’s donated money to the candidate and his political party investigating members of that politician’s inner circle?”

    C’mon, Doug. In my business in an analogous situation I’d be run out of town with guffaws snickers, if not pending litigation.

    Sometimes these issues become IQ tests.

    Like or Dislike: Thumb up 3 Thumb down 1

  2. Scott says:

    About as much a conflict of interest as having elected judges.

    Like or Dislike: Thumb up 4 Thumb down 1

  3. Moosebreath says:

    While I am not disagreeing with Drew, I am curious if the comparable figures of percentage of US Attorneys who donated and the amount of donations from other recent administrations are available. Quite honestly, I would have assumed that the percentage was far closer to 100% than 50%.

    Like or Dislike: Thumb up 2 Thumb down 1

  4. Tsar Nicholas says:

    DOJ is another fetid swamp that needs to be drained.

    Like or Dislike: Thumb up 1 Thumb down 4

  5. Buzz Buzz says:

    Maybe if you calculate the campaign donations from all these political stooges posing as “independent investigators” as a % of GDP instead of actual dollar amounts then you’ll be able to trick some people into thinking the sleaze and corruption that engulfs the Obama administration doesn’t stink so bad.

    Like or Dislike: Thumb up 1 Thumb down 6

  6. MarkedMan says:

    So how does this compare to Bush Jr’s justice department?

    Like or Dislike: Thumb up 5 Thumb down 2

  7. steve says:

    Why is it a potential conflict of interest to donate money to political campaigns, but it is not one if you are married to a political activist? A big chunk of the family income is coming from a political group and invitations to spiffy parties make for a nice lifestyle, and that is fine for someone in the legal profession, but a donation is off limits? Dont incentives matter?

    If County Sheriff is a Democrat, does that mean he cannot investigate a Democrat? Or may he can only arrest the GOP? Or is it vice versa?

    Steve

    Like or Dislike: Thumb up 4 Thumb down 1

  8. Funny, giving money to the Democratic Party hasn’t stopped Ronald C. Machen Jr. from throwing two Democrats on the D.C. City Council in federal prison.

    Not to mention, in most cases, the United States Attorneys are picked by the United States Senators from the state where they will be serving.

    And, if there’s a conflict in interest in nominating Machen, doesn’t there also have to be a conflict of interest for Rothstein, someone who was appointed by George W. Bush to serve on the Fourth Circuit Court of Appeals, to investigate a Democrat?

    Like or Dislike: Thumb up 4 Thumb down 1

  9. Jeremy R says:

    So within five days of the CBS report alleging F&F gunwalking AG Holder initiates an OIG investigation into the matter. A Republican Bush admin DOJ attorney is one of the two heading up the investigation.

    http://www.google.com/hostednews/ap/article/ALeqM5h6blqmM2jeQ8hxrVDaHVUshQLokA?docId=44ff0778c01e45709c1df986a2be0c4e

    CBS News ran a story on Feb. 23, 2011. On March 3, CBS followed up, and the nonprofit Center for Public Integrity weighed in with its own online account.

    On Feb. 23, aides passed along to the attorney general the CBS story alleging gun-walking, and the attorney general shot back, “We need answers on this. Not defensive BS. Real answers.”

    Five days later, Holder asked the Justice Department’s inspector general to investigate.

    On March 3, Cole, the No. 2 official at the Justice Department, emailed his staff: “We obviously need to get to the bottom of this.”

    Holder was skeptical of any assurances.

    “I hope the AG understands that we did not allow guns to walk,” an official at the ATF’s Washington headquarters said on March 10 in an email that Holder’s aides forwarded to the attorney general.

    In a response, Holder wrote, “Do they really, really know” that there was no gun-walking?

    A day earlier, at Holder’s instruction, the Justice Department had sent out a directive to the field reinforcing a longtime Justice Department policy against gun-walking. The directive said that agents must not allow guns to cross the border into Mexico.

    http://www.justice.gov/oig/

    The Office of the Inspector General (OIG) in the U.S. Department of Justice (DOJ) is a statutorily created independent entity whose mission is to detect and deter waste, fraud, abuse, and misconduct in DOJ programs and personnel, and to promote economy and efficiency in those programs. The Inspector General, who is appointed by the President subject to Senate confirmation, reports to the Attorney General and Congress. The OIG investigates alleged violations of criminal and civil laws by DOJ employees and also audits and inspects DOJ programs.

    The OIG’s nationwide workforce of 445 employees includes auditors, program analysts, criminal investigators, attorneys, and administrative and support personnel.

    I don’t think I’m going out on a limb here when I say I expect the IG investigation to be tough and professional, and that I expect that’s where we’ll see a comprehensive and credible accounting of what happened at the Phoenix ATF office — something that will never be coming from Issa’s show trial.

    Like or Dislike: Thumb up 3 Thumb down 1

  10. Racehorse says:

    History seems to show that the AG is not going to release classified info unless it is pried out of their hands by the Supreme Court. This is regardless of Republican or Democrat.
    The bad thing here is that the record of what happened to Bryan Terry needs to be released – at least to his family: what happened, why, and who did it: names, not just “drug dealers did it!”.
    Maybe an independent commission made up of private citizens, business people, and past leaders (Ventura has military experience – he would get to the truth and pull no punches!) would be best to look into this and make public their findings. It is too bad the Supreme Court can’t get a case like this really quick instead of the usual year or more! The people deserve answers now!

    Like or Dislike: Thumb up 1 Thumb down 0

  11. Console says:

    They aren’t independent investigators in the first place. So the idea that one needs to seek out campaign donations to piece all this together nonsensical. Either way you’re investigating your boss.

    There is only an appearance of impropriety if it’s unusual for US attorney’s to be political appointees. Congress’s oversight powers exist for a reason.

    The annoying thing about this sort of lazy thinking is that in the zeal to delegitimize one political issue, people end up delegitimizing an entire process. If it’s the money that’s the problem, then it doesn’t stop being a problem with investigating Obama. If these attorney’s prosecute a GOP member, is the prosecution now automatically suspect because they are democrats? Are their findings on any hot button political topic now suspect?

    Like or Dislike: Thumb up 0 Thumb down 0