U.S. Attorney Firing Scandal

For whatever reason, I’ve had trouble mustering an interest in the brouhaha over Attorney General Alberto Gonzalez’ firing of some U.S. attorneys for “political reasons.” It’s been the topic of much discussion in the blogosphere and the halls of Congress but just hasn’t inspired me to write anything.

Front page stories in today’s NYT and WaPo, which have inspired another mini-surge in blog outrage, continue to leave me yawning.

Dan Eggen and John Solomon, writing for WaPo under the headline “Firings Had Genesis in White House,” report:

The White House suggested two years ago that the Justice Department fire all 93 U.S. attorneys, a proposal that eventually resulted in the dismissals of eight prosecutors last year, according to e-mails and internal documents that the administration will provide to Congress today.

The dismissals took place after President Bush told Attorney General Alberto R. Gonzales in October that he had received complaints that some prosecutors had not energetically pursued voter-fraud investigations, according to a White House spokeswoman.

The use of “White House,” the name of a building, is ubiquitous (I do it all the time, too) but also problematic. It turns out that “the White House” means “Harriet Miers” here, not “the president.”

David Johnson and Eric Lipton weigh in with “White House Said to Prompt Firing of Prosecutors” for NYT.

The White House was deeply involved in the decision late last year to dismiss federal prosecutors, including some who had been criticized by Republican lawmakers, administration officials said Monday.

Last October, President Bush spoke with Attorney General Alberto R. Gonzales to pass along concerns by Republicans that some prosecutors were not aggressively addressing voter fraud, the White House said Monday. Senator Pete V. Domenici, Republican of New Mexico, was among the politicians who complained directly to the president, according to an administration official.

The president did not call for the removal of any specific United States attorneys, said Dana Perino, a White House spokeswoman. She said she had “no indication” that the president had been personally aware that a process was already under way to identify prosecutors who would be fired.

So here “the White House” does mean “the president.” But his involvement seems to be limited to saying “What’s up with my prosecutors not doing their jobs on an issue to which I’ve ordered be given special emphasis?”

But Ms Perino disclosed that White House officials had consulted with the Justice Department in preparing the list of United States attorneys who would be removed. Within a few weeks of the president’s comments to the attorney general, the Justice Department forced out seven prosecutors. Previously, the White House had said that Mr. Bush’s aides approved the list of prosecutors only after it was compiled.

So, the plot thickens. . . .

The role of the president and his advisers in the prosecutor shakeup is likely to intensify calls by Congress for an investigation. It is the worst crisis of Mr. Gonzales’s tenure and provoked charges that the dismissals were a political purge threatening the historical independence of the Justice Department.

The idea of dismissing federal prosecutors originated in the White House more than a year earlier, White House and Justice officials said Monday. In early 2005, Harriet E. Miers, then the White House legal counsel, asked a Justice Department official whether it would be feasible to replace all United States attorneys when their four-year terms expired, according to the Justice Department. The proposal came as the administration was considering which political appointees to replace in the second term, Ms. Perino said.

Ms. Miers sent her query to D. Kyle Sampson, a top aide to Mr. Gonzales, the Justice officials said. Mr. Sampson, who resigned Monday, replied that filling so many jobs at once would overtax the department. He suggested replacing a smaller group, according to e-mail messages and other memorandums compiled by the Justice Department.

Karl Rove, the senior White House adviser, also had rejected the idea of replacing all the prosecutors, Ms. Perino said. But as Ms. Miers worked with Mr. Sampson on devising a list of attorneys to oust, Mr. Rove relayed to her complaints he had received that the Justice Department was not moving aggressively on voter fraud cases.

Okay, so we have Harriet Miers asking a particularly stupid question, being told by the professionals that she is an idiot (reading between the lines) and Karl Rove agreeing with that assessment. So, the only “White House aide” wanting to do anything outrageous was Miers. Rove–who, I understand, is so evil as to make the anti-Christ look like Caspar the Friendly Ghost–cut her off at the pass.

The White House continued to defend its handling of the dismissals. “We continue to believe that the decision to remove and replace U.S. attorneys who serve at the pleasure of the president was perfectly appropriate and within our discretion,” Ms. Perino said. “We stand by the Department of Justice assertion that they identified the seven U.S. attorneys who were removed, as they have said, based on performance and managerial reasons.”

So, here’s my understanding of the scandal:

  • The president expresses displeasure that some of his political appointees are not doing their job.
  • His White House Counsel suggests firing everybody, whether they’re doing their job or not.
  • His senior strategist says not to do that.
  • Staffers go through the records and identify the 7 of 93 prosecutors (7.53%) who aren’t prosecuting a whole category of violations of federal law.
  • The Attorney General fires those 7 political appointees.

Am I missing something here?

Were these firings “politically motivated”? I suppose so, although only under the broadest definition of that term. Then again, they are political appointees, not career civil servants. Presumably, they have that status because it was understood that U.S. Attorneys are policy makers, assigned to not only carry out the law but respond to the orders of the Chief Executive of the United States.

If they were being fired because they were prosecuting the president’s friends, that would be a problem. Similarly, if they were fired because they refused to prosecute the president’s enemies, that would be a problem. If the president or the AG were “suggesting” that specific people be singled out for selective prosecution of crimes, that would also be of concern.

From what I’m reading here, though, it sounds like these people were simply refusing to investigate and prosecute the generic class of voter fraud cases. Why can’t political appointees have their appointments stripped for that?

FILED UNDER: Law and the Courts, US Politics, , , , , , ,
James Joyner
About James Joyner
James Joyner is a Security Studies professor at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Ugh says:

    who aren’t prosecuting a whole category of violations of federal law.

    I’m not sure where you get that conclusion from “some prosecutors had not energetically pursued voter-fraud investigations”; “some prosecutors were not aggressively addressing voter fraud”; and “the Justice Department was not moving aggressively on voter fraud cases.”

    And to hear Josh Marshall tell it (admittedly not the most unbiased of sources) there’s good reason for the lack of aggression:

    The very short version of this story is that Republicans habitually make claims about voter fraud. But the charges are almost invariably bogus. And in most if not every case the claims are little more than stalking horses for voter suppression efforts. That may sound like a blanket charge. But I’ve reported on and written about this issue at great length. And there’s simply no denying the truth of it. So this becomes a critical backdrop to understanding what happened in some of these cases. Why didn’t the prosecutors pursue indictments when GOP operatives started yakking about voter fraud? Almost certainly because there just wasn’t any evidence for it.

    (Internal embedded link omitted)

  2. Anderson says:

    JJ, I can’t pretend I’ve been doing more than skimming Josh Marshall on the topic, but my immediate reaction is that it took the White House 4 months to come up with this explanation. Which right there suggests that a healthy skepticism is not unwarranted.

    If Republican-appointed prosecutors weren’t prosecuting alleged voter fraud by Democrats, could it perhaps be that’s because there wasn’t a case to be made? And that maybe the “fraud” was largely in the mind of GOP state officials?

  3. James Joyner says:

    If Republican-appointed prosecutors weren’t prosecuting alleged voter fraud by Democrats, could it perhaps be that’s because there wasn’t a case to be made?

    Sure. But, presumably, the other 86 prosecutors were able to find something worth prosecuting?

    my immediate reaction is that it took the White House 4 months to come up with this explanation

    Now that’s interesting. There may in fact be an incredibly sinister explanation forthcoming. Right now, though, it bores me to tears.

  4. Anderson says:

    Sure. But, presumably, the other 86 prosecutors were able to find something worth prosecuting?

    That reasoning doesn’t seem to hold up very well. If “the other 86” *were* prosecuting such cases, then that means a great majority of districts had worthwhile cases to pursue … which makes it all the more likely that a few did not.

    But where, I wonder, are all these cases of Democrats being convicted of voter fraud in federal court? Reading liberal blogs as I do, I tend to notice the opposite cases, like the Republican phone-jammer in New England.

  5. legion says:

    James,
    There are a couple of issues to this… for one, it’s not simply that the USAs were fired peremptorily – as you & many others note, they are appointees & serve at the pleasure of the President. What first raised eyebrows was the replacement of highly qualified, successful prosecutors with inexperienced party hacks. As people looked closer, the specific investigations that were being derailed by these replacements started to appear suspicious. Then there started to be rumors that these USAs were replaced not simply because the President wanted to shuffle things around, but because certain GOP members of Congress weren’t happy with the fact that said USAs weren’t using their offices to persecute the minority party. then, as is becoming more and more obvious, the Attorney General flatly lied under oath about why the firings took place… if he doesn’t resign by the end of this week, Congress will probably start scheduling impeachment hearings next week.

    And it’s only Tuesday, when you know they only dump the really bad news on Friday afternoon. It may not be interesting just now, but keep your eyes here, James – it’ll get there soon…

  6. Anderson says:

    Certainly, if Seattle D.A. John McKay’s experience is at all typical, it sounds like DOJ retribution for failing to file criminal charges at the behest of the GOP state organization.

    Read the entire linked story – it’s bad, bad stuff. “Waaah, we didn’t feel like the FBI agent we talked to was taking us seriously enough!” Welcome to reality.

    (Link via TPM, of course — they’ve been the go-to site for this.)

  7. The thing that I find problematic is that it seems clear that the DoJ was using the new provisions of the Patriot Act to avoid checks and balances. The e-mails from Sampson, the now-resigned Chief of Staff for Gonzalez, underscores issues like “loyalty” to the administration and clearly indicates that they knew the new process allowed them to essentially ignore the Senate.

    To me, that is problematic (to be kind) and is reason to care. More at my post from this morning.

  8. Bithead says:

    Am I missing something here?

    Not from where I sit.
    What we have here is at the bottom line, political opportunism at it’s finest. That there’s no “there’, there, doesn’t stop the Democrats from trying to make something out of it.

  9. John Burgess says:

    Every time a new president takes office, all US ambassadors–political appointees or career officers–resign. In the case of career ambassadors, their resignations may or may not be accepted; for political appointees, they are accepted almost without exception. (Mike Mansfield in Japan was one such exception.)

    That’s a lot of jobs to fill on a quick timeline. Work just doesn’t get done with the same efficiency or effectiveness in the absence of an ambassador. (Chargés d’Affaires, standing in for the absent ambassadors, are generally competent and do a good job, but they are not seen as nor do they actually substitute for the personal representative of the President.)

    Nevertheless, these vacancies can and are survived. DOJ is probably not set up to deal with mass vacancies. This would argue that phased removals would be preferable. That is perfectly within the constitutional power of the Administration, whether in the person of the President or one or several of his advisors whose advice he follows.

    On ‘White House’ as a being: I once had a boss who simply refused to take phone calls from ‘The White House’. He’d answer the phone, hear, ‘This is the White House calling,’ and reply, ‘I don’t speak to buildings,’ as he hung up. His retirement papers had already been submitted, so he really didn’t fear retribution. Surprisingly, the call-backs came rephrased, “This is So-and-So, calling from the White House.’ Those calls he accepted. As we saw four presidential visits to that country, word quickly spread within the White House.

  10. Hal says:

    Um, John, these are Bush appointees. Geebus.

    From J.Marshall

    As has happened so many times in the last six years, the maximal version of this story — which seemed logical six weeks ago but which I couldn’t get myself to believe — turns out to be true. Indeed, it’s worse. We now know that Gonzales, McNulty and Moschella each lied to Congress. We know that the purge was a plan that began at the White House — and it was overseen by two of President Bush’s closest lieutenants in Washington — Miers and Gonzales. Sampson is the second resignation. There will certainly be more.

    I think you’re going to be doing another one of your famous backtracks here, James.

  11. Matt says:

    There is no scandal. These are political positions, part of the executive branch, with appointees who serve at the pleasure of the President and Attorney General.

    Congress has no role to play here and any interference is a blatant violation of separation of powers.

  12. Anderson says:

    “Congress has no role to play” solely b/c Congress divested itself of confirmation authority in the misnamed “Patriot Act.” (Well, I guess it *was* an “act.”)

    Congress entrusted the AG with unilateral power on the understanding that it would be wisely exercised. See, it’s obviously stupid when you write it out like that; but Congressional stupidity is not new.

    The present scandal boils down to two things:

    (1) Will Congress repeal the law at issue and resume its confirmation power; and

    (2) Will Gonzales or others be impeached for lying under oath to Congress?

  13. legion says:

    What Anderson said.
    USAs are supposed to be approved by Congress. The issue is not that Congress reneged on its advice-and-consent role (that’s been too common the last few years to make note of), but that the Admin is putting unqualified cronies into important jobs. Oh, and lying under oath about it. To call this a ‘separation of powers’ issue is to completely fail to grasp the basic facts.

  14. Triumph says:

    If they were being fired because they were prosecuting the president’s friends, that would be a problem. Similarly, if they were fired because they refused to prosecute the president’s enemies, that would be a problem. If the president or the AG were “suggesting” that specific people be singled out for selective prosecution of crimes, that would also be of concern.

    Uhh..this is precisely what happened.

    Lam was axed in San Diego for prosecuting the President’s friends.

    Iglesias was axed in New Mexico for not prosecuting the president’s enemies.

  15. cian says:

    A recent study of investigations and/or indictments of elected officials by US Attorneys since the Bush administration took office shows that of the 375 cases taken, 10 were of independents, 67 of republicans and the remaining 298 were democrats. Apparently, many of these cases were started prior to an election and dropped shortly afterwards. Something not right here, surely.

  16. Andy says:

    More librul MSM propaganda. Why don’t we hear about all of the other cabinet members who aren’t abusing US attorneys for partisan political purposes?

  17. Anderson says:

    More librul MSM propaganda.

    Yeah — what about all the schools that the DOJ has painted?

    10 were of independents, 67 of republicans and the remaining 298 were democrats

    But since we’re pluralistic degenerate traitors, that seems about right.

  18. Andy says:

    10 were of independents, 67 of republicans and the remaining 298 were democrats

    Why don’t we ever hear about all of the thousands of Democrats that weren’t charged with fake voter supression charges?

  19. vnjagvet says:

    Leahy and Schumer are overplaying this. The US Attorney position is not on the merit system. It is a “political” appointment, so politics part of the job description. Lawyers in the private sector serve at the pleasure of their clients. Political appointees in legal positions are in the same position.

    Sorry, guys, I agree with James here. The high dudgeon is contrived. Schumer is as “shocked” as Claude Raines in Casablanca. Trust me on this one. He’s as political as they come.

  20. John Burgess says:

    Hal: I did not adequately make my point clear.

    That point is: These political appointees can be fired at any time, for no reason other than the president’s saying ‘you’re fired’.

    DOJ apparently has little practice with broad swath house cleaning. Therefore, a phased firing makes some sense.

    Whoever appointment them to their USA positions is utterly immaterial except that these firing may have come at an unexpected time.

    A lot of trouble could have been avoided if in the firing the superior had simply said, “We don’t like your handwriting” even though no actual reason is required, by law or practice.

  21. Matt T says:

    Just because the firings are technically legal doesn’t mean that they’re a good idea. Arguing that this matter is not controversial simply because the appointees serve at the discretion of the President is an oversimplificaiton.

    The actual matter of discussion here should be whether or not the executive branch can/should exercise authoritative discretion in determining whether or not to prosecute members of the opposing political party.

    Why have well-trained, experienced lawyers determine the merits of a potential legal proceeding when you can prosecute by executive decree?

  22. Zelsdorf Ragshaft III says:

    When Bill Clinton came to office, he fired all of the U.S, Attorneys. I didn’t hear any of you on the left decrying that action. What part of “they serve at the pleasure of the President” is it that you fail to understand? BDS bllnds so many. The left attacks Bush no matter what he does because he does very little if anything that is not within his power as President. Subversives on the left keep attacking this President, but in the last and only poll that counted, when give a choice between that of the left and this President, inspite of the attempted cheating on the left, Bush won by a substancial amount. James is correct. This is a non story put forth by those who wish this President failure. How un-American of you.

  23. Tlaloc says:

    It turns out that “the White House” means “Harriet Miers” here, not “the president.”

    Well considering that Harriet Miers is Bush’s legal counsel that makes for a pretty fine distinction. It’s like arguing that Scooter never said he was too busy to remember his lawyer did. Well yeah but the lawyer is there representing the client.

  24. James Joyner says:

    Well considering that Harriet Miers is Bush’s legal counsel that makes for a pretty fine distinction.

    Sometimes yes, sometimes no. My guess here–and it’s just that–is that she had very vague instructions from her client and then went off and concocted a half-baked plan. As that plan went through the natural vetting process before it got back to her client, it got rebuffed.

    That’s not me as a Bush partisan defending my guy. I just think that’s how CEOs generally and presidents in particular conduct business. There’s a lot of stuff happening at “the highest levels of the administration” that don’t ever quite make it to the highest level of the administration.

  25. Anderson says:

    Folks, the executive discretion is not in dispute here, & if you mischaracterize it thus, you’re missing the point.

    Sure, the Prez can fire whoever he wants, but the knowledge that his replacement will have to be confirmed by the Senate provides a bit of balance.

    The Senate signed away that check-&-balance in the Patriot Act.

    The present hearings, basically, boil down to whether or not doing so was a good idea.

    Moreover, WHATEVER the discretion, Gonzales is not privileged to lie under oath to the Senate. If he did, then that’s a problem, regardless of whether all 7 fired USA’s were downloading child porn and contributing to NAMBLA.

  26. just me says:

    Well I admit I have a rather “who cares” attitude about this.

    It was 7 people. My big question is why wasn’t the guy who prosecuted Berger on the list of attornies to be fired? Berger’s butt should have gone to jail.

    I guess I can’t get all up in arms that the president fired people who served at his pleasure and who he could fire at will.

    I have read some of the discussions on this at other liberal leaning blogs and I really don’t get the outrage. It feels more manufactered than real.

  27. legion says:

    just me,
    That’s because you’re swallowing the administration talking point/red herring, rather than actually reading the story yourself.

    Nobody disputes the President has the authority to fire these guys at will. Nobody.

    Because Congress gave up its power to exercise oversight on re-appointments, there’s nobody to blame for that except Arlen Specter.

    The specific firings a) have the stink of political retribution on them and b) could disrupt investigations and prosecutions of administration cronys. Certainly immoral, but probably still in Bush’s power.

    The thing the administration doesn’t want you to notice is that the DOJ’s senior personnel unashamedly, unhesitatingly lied under oath to (try and) keep people from asking more questions.

    That’s not manufactured.

  28. just me says:

    Sorry but I still don’t get why you guys are arguing that the administration can’t fire its political appointees.

    Anytime a US atty is fired, it disrupts prosecutions, that occurred with Clinton, so in general the problem seems to be that the left doesn’t want US atty’s to be political appointees but civil servants, which is I guess fine, make that case.

    But political appointees as far as I understand serve at the will of the president and he can fire them, if he wants.

  29. vnjagvet says:

    I guess I missed the Gonzales “lie”. What was it?

  30. Anderson says:

    Sorry but I still don’t get why you guys are arguing that the administration can’t fire its political appointees.

    Poor reading comprehension, I guess. They can fire whom they like — but Congress can take an interest in the subject and decide to restore its power to confirm replacements.

  31. John Burgess says:

    It’s good to know that legion can read the DNC talking points, too!

    Congress can–and does–take an interest in lots of things. Things that will keep the individual members in office; things that will bring pork to their districts; things that will get them air time.

    It would be preferable, at least for this taxpayer, if they took an interest in what’s actually happening in the world rather than posing around. It would be preferable if they thought about the ramifications of a law they passed sometime before they passed it. It would be preferable if they grew balls and stopped throwing all the hard decisions to the judiciary.

    But that’s just me, I guess….

  32. Paul Revere says:

    I consider myself a conservative. I am not sure what is going on with the Republican party. The current administration sure doesn’t seem like a conservative group. With over spending and less than a clear focus on our own economy. With unchecked military spending. Terrorism isn’t the only threat to American society and life. Terrorism didn’t begin on 9/11

    When Clinton was President it seems to me many on the right simply wanted to nail Clinton on anything they could. We even had someone called a Special Prosecutor, whos job it was to find something wrong with the President. I don’t remember much talk on the right about how important it was to protect the USA from Terrorism. The right wing was more concerned with getting CLinton on anything they could.

    Terrorism didn’t start on 9/11. It sure it home in a BIG way on that day. However all along its like the right wing was asleep towards the threats of terrorism. The attack on the US Cole took place at the end of Clintons term. Only a month or 2 before Bush 2 took office. DId we do anything about terrorism?

    Why was it ok to weaker our own homeland by trying to destroy a sitting President during the Clinton admin? Certainly there were more important issues in the world than Clintons sex life.

    So after 9/11 the Bush admin pushes for an invasion into Iraq. We are told they have WMD. We invade and in a matter of weeks Saddam is out. Now years later what are we doing there. I thought Bush claimed victory years ago. If the people of Iraq want democracy let them fight for it. WHy do our sons and daughter have to fight an internal war for them?