The Federal Attorney Firing Brouhaha

[Lemur]

This topic has been popping up in other threads, but it doesn't seem to be going away. In the interest of neatness, the attorney firing kerfluffle/scandal/liberal plot/conservative fumble has its own thread.

I'll toss out a starter article, just 'cause I'm that kind of lemur.

Spoiler Alert, click show to read: 

Panel OKs subpoenas in attorney probe

By LAURIE KELLMAN Associated Press Writer

WASHINGTON — The Senate Judiciary Committee Thursday cleared the way for subpoenas compelling five Justice Department officials and six of the U.S. attorneys they fired to tell the story of the purge that has prompted demands for the ouster of Attorney General Alberto Gonzales.

The voice vote to authorize the panel to issue subpoenas amounts to insurance against the possibility that Gonzales could retract his permission to let the aides testify voluntarily, or impose strict conditions.

The committee also postponed for a week a vote on whether to authorize subpoenas of top aides to President Bush who were involved in the eight firings, including political adviser Karl Rove, former White House Counsel Harriet Miers and deputy White House Counsel William K. Kelley.

The committee approved subpoena power over key Justice Department officials involved in the firings: Michael Elston, Kyle Sampson, Monica Goodling, Bill Mercer and Mike Battle.

Sampson, Gonzales' chief of staff, quit this week. Elston is staff chief to Deputy Attorney General Paul McNulty and Mercer is associate attorney general. Goodling is Gonzales' senior counsel and White House liaison, and Battle is the departing director of the office that oversees all 93 U.S. attorneys.

Gonzales has said he would allow the aides still at the Justice Department to testify voluntarily. It was unclear whether Sampson would agree to tell his story without a subpoena.

The panel also approved subpoena power for six of the eight U.S. attorneys fired since December. The six, all of whom testified last week under oath before the House Committee, are: Carol Lam of California, Bud Cummins of Arkansas, Paul Charlton of Arizona, John McKay of Washington state, Daniel Bogden of Nevada, David Iglesias of New Mexico.

The subpoenas are a warning to the embattled administration to follow through on promises in recent days by Gonzales and Bush to tell the whole story of the firings, beyond the selected details that Associate Deputy Attorney General William Moschella revealed to the House panel last week.

"I want to obtain their cooperation and all relevant information," Judiciary Committee Chairman Patrick Leahy said. "But I want people to know that if I do not get cooperation, I will subpoena, we will have testimony under oath in this committee. We will find out what happened."

Ranking Republican Arlen Specter said he would do the same thing if he were still chairman, but he cautioned against passing judgment on Gonzales and the aides before the facts are fully known.

"I agree that this committee should get to the bottom of this issue," Specter, R-Pa., said. "I would hope that we would do so with at least a modicum of objectivity."

Some senators have called for days for Bush to fire Gonzales.

Sen. John Sununu of New Hampshire on Wednesday became the first Republican to call for Gonzales' ouster just hours after Bush gave the attorney general, a longtime friend of the president, a vote of confidence.

"I think the president should replace him," Sununu said in an interview. "I think the attorney general should be fired."

Although some Republicans have been tepid in their support for the attorney general, Sununu was the first to go so far in the uproar over the Justice Department's firing of the attorneys and its response to congressional questions, plus a separate report that the administration abused its power to secretly investigate suspected terrorists.

The White House issued a curt response to Sununu's remarks.

"We're disappointed, obviously," White House spokesman Tony Snow said. A Justice Department spokeswoman refused to comment.

Speaking to reporters in Mexico before returning to Washington, Bush expressed confidence in Gonzales and defended the firings. "What Al did and what the Justice Department did was appropriate," the president said.

Still, Bush left himself room to sack the attorney general.

"What was mishandled was the explanation of the cases to the Congress," Bush said. "And Al's got work to do up there."

Gonzales, expected to meet with lawmakers this week, has been fending off Democratic demands that he resign over the ousters of the eight U.S. attorneys, which Democrats have characterized as a politically motivated purge.

"We want Congress to know, to understand what happened here," Gonzales said. "We'll work it out."

The committee's postponement of consideration of subpoenas for White House officials gives Bush's presidential lawyer, Fred Fielding, time to consider what, if any, conditions should be imposed if the aides testify voluntarily. Fielding said he would let Schumer and other lawmakers know on Friday whether the administration is still willing to talk about that prospect, or whether Congress would have to compel testimony from Rove, Miers and Kelley.

The White House was expected to seek some conditions, but Fielding "said his intention was not to stonewall," Schumer said.

[Marshal Murat]

The attorney's should be fired for not doing their jobs.

I have a feeling Goofball is going to pop up.

[ShadeHonestus]

"I agree that this committee should get to the bottom of this issue," Specter, R-Pa., said. "I would hope that we would do so with at least a modicum of objectivity."

Talk about pissing in the wind..."modicum of objectivity."

[Pindar]

This is a non-issue. These attorneys are political appointees that serve at the leisure of the Executive. They can be dismissed at any time for any reason. Clinton dismissed all 93 during his tenor and was perfectly in his right to do so.

[Phatose]

Eh. The mere suggestion that some of these attorneys were let go specifically to impede corruption cases will be enough of a story to merit a big public show, call in a bunch of political hotshots to testify under oath in the hope they'll like to cover their political behinds, then charge them with perjury.

It's all the same. Only the names have changed.

[Lemur]

Interesting. So if I'm reading the mood of the backroom correctly, the firings are a complete non-issue elevated by pandering politicos and a pliant press. I learn new stuff here all the time.

[drone]

The biggest problem I have with this whole deal is that Congress is essentially cut out of the loop when it comes to replacements. By having an indefinite "interim" period with no confirmation required, any political crony could be a US Attorney, regardless of their actual ability or knowledge of the law.

[Xiahou]

The biggest problem I have with this whole deal is that Congress is essentially cut out of the loop when it comes to replacements. By having an indefinite "interim" period with no confirmation required, any political crony could be a US Attorney, regardless of their actual ability or knowledge of the law.

Actually, the interim appointment is only good for as long as it takes Congress to confirm the appointee. Ideally, if Bush appointed someone who was woefully incompetent, the Senate can quickly shoot down the nomination and end the appointees tenure. They only stay in for the entire term if the Senate does not act.

[drone]

Actually, the interim appointment is only good for as long as it takes Congress to confirm the appointee. Ideally, if Bush appointed someone who was woefully incompetent, the Senate can quickly shoot down the nomination and end the appointees tenure. They only stay in for the entire term if the Senate does not act.

According to Internet Arguing for Dummies, the Senate Confirmation is no longer necessary for interim Attorneys.

Appointment

The U.S. Attorney is appointed by the President of the United States for a term of four years, with appointments subject to confirmation by the Senate.

By law, "each United States attorney is subject to removal by the President."

The procedure for appointment of Interim U.S. Attorneys is governed by Section 546 of title 28, United States Code.[4] Section (c) states:

(c) A person appointed as United States attorney under this section may serve until the earlier of (1) the qualification of a United States attorney for such district appointed by the President under section 541 of this title; or (2) the expiration of 120 days after appointment by the Attorney General under this section.

However, on March 9, 2006, President George W. Bush signed into law the Patriot Act Reauthorization Bill of 2005 which amends Section 546 by striking subsections (c) and (d) and inserting the following new subsection:

(c) A person appointed as United States attorney under this section may serve until the qualification of a united States Attorney for such district appointed by the President under section 541 of this title.

This, in effect, strikes the 120 days limit on interim U.S. Attorneys, and effectively extends their term to the end of the appointing President's term, which circumvents the U.S. Senate confirmation process.

Circumvention of process is the best thing this administration does, even when unnecessary.

[Vladimir]

Interesting. So if I'm reading the mood of the backroom correctly, the firings are a complete non-issue elevated by pandering politicos and a pliant press. I learn new stuff here all the time.

It's the Democrats making good on their threats of non-stop hearings until Bush is out of office. The other non-issue of the Plame Game is another example. Meh, inside the beltway politics .

[ShadeHonestus]

It's the Democrats making good on their threats of non-stop hearings until Bush is out of office. The other non-issue of the Plame Game is another example. Meh, inside the beltway politics .

Night of Long Knives meets the Beltway...

AH-HA maybe thats the conspiracy behind the early DLS change now...

[Hosakawa Tito]

This is a non-issue. These attorneys are political appointees that serve at the leisure of the Executive. They can be dismissed at any time for any reason. Clinton dismissed all 93 during his tenor and was perfectly in his right to do so.

If the administration had fired them at the beginning of the term, which is quite traditional, instead of in the middle, just after midterm elections, then it wouldn't appear so politically driven, even though it was. They gotta work on their lying, their political clumsiness is laughable or they're too arrogant to give a damn. The Attorney General is supposed to uphold the laws, even when they may not favor the President and his party. He's supposed to at least appear to be the people's Attorney not the Prez's. He gave that job up when he accepted the AG position. Doesn't matter if he steps down or is removed, the President will just pick another like him to fill the post.

[Xiahou]

According to Internet Arguing for Dummies, the Senate Confirmation is no longer necessary for interim Attorneys.

Circumvention of process is the best thing this administration does, even when unnecessary.

Look at the footnotes and read the actual laws that are linked to. Changing 546(c) has no effect on 541(a) which still requires Senate confirmation. In a sense you're right- if the Senate does not act, the attorney will remain in his position- but I've already said that in my previous post. What I've also said, and is still true, is that the Senate could, at it's choosing, vote down an appointment.

If the administration had fired them at the beginning of the term, which is quite traditional, instead of in the middle, just after midterm elections, then it wouldn't appear so politically driven, even though it was. They gotta work on their lying, their political clumsiness is laughable or they're too arrogant to give a damn. The Attorney General is supposed to uphold the laws, even when they may not favor the President and his party. He's supposed to at least appear to be the people's Attorney not the Prez's. He gave that job up when he accepted the AG position. Doesn't matter if he steps down or is removed, the President will just pick another like him to fill the post.

I'll certainly agree that they've mishandled this situation(and many others).

[Pindar]

If the administration had fired them at the beginning of the term, which is quite traditional, instead of in the middle, just after midterm elections, then it wouldn't appear so politically driven, even though it was.

All such appointments are politically driven. Patronage is the standard. The reality is they can be removed at any time: no reason is necessary. There is no story here.

[KukriKhan]

With all the heads rolling down Pennsylvania Avenue lately (and more projected over Plame-gate, DA-gate, W.Reed-gate, et al), I hope someone has notified the D.C. traffic cops of the potential road hazard.

The firings may not end up being "THE story", but rather the (inadvertantly?) false/inaccurate sworn testimony of the AG before Congress, before the more revelatory e-mails came to light.

[Vladimir]

With all the heads rolling down Pennsylvania Avenue lately (and more projected over Plame-gate, DA-gate, W.Reed-gate, et al), I hope someone has notified the D.C. traffic cops of the potential road hazard.

The DC police department only declares a state of emergency when white people are killed in affluent areas of the District (NorthWest).

[AntiochusIII]

The firings may not end up being "THE story", but rather the (inadvertantly?) false/inaccurate sworn testimony of the AG before Congress, before the more revelatory e-mails came to light.

Haven't the Right been excusing the Clinton head-hunting back during Lewinsky with "He lied under oath?"

[KukriKhan]

Haven't the Right been excusing the Clinton head-hunting back during Lewinsky with "He lied under oath?"

Umm. Yes.

T'was enough to invoke constitutional examination of a sitting president's exact sworn words.

It remains to be seen whether the same standard is applied (as it should, IMO) the other way. Resulting in an examination of the concept: NO one is above the law in america, not even the guy personally charged with upholding it.

Nor his boss.

If all are accountable, then let it be.

[Lemur]

A little footnote to this business:

Six of the eight U.S. attorneys fired by the Justice Department ranked in the top third among their peers for the number of prosecutions filed last year, according to an analysis of federal records.

In addition, five of the eight were among the government's top performers in winning convictions. The analysis undercuts Justice Department claims that the prosecutors were dismissed because of lackluster job performance. Democrats contend the firings were politically motivated, and calls are increasing for the resignation or ouster of Attorney General Alberto Gonzales.

Immigration cases — a top Bush administration priority, especially in states along the porous Southwest border — helped boost the total number of prosecutions for U.S. attorneys in Arizona, Nevada, New Mexico, San Diego, San Francisco and Seattle.

[Don Corleone]

I was actually with the Administration on this one in terms of Executive privellege (as I was with Clinton when he invoked it). However, what was the 'not under oath, not on the record' offer all about? Is it just me or did Bush essentially say "Okay, I'm gonna send my folks over to lie to you for a while... " ?

Now I want to know what the heck is going on. I hope the Democrats have the spine and the motivation to actually push the subpoena fight, but I doubt it.

[Whacker]

Umm. Yes.

T'was enough to invoke constitutional examination of a sitting president's exact sworn words.

It remains to be seen whether the same standard is applied (as it should, IMO) the other way. Resulting in an examination of the concept: NO one is above the law in america, not even the guy personally charged with upholding it.

Nor his boss.

If all are accountable, then let it be.

Agree. So who's gonna hold Bush's butt to the flames for his blatant flaunting of the Constitution? Wiretaps anyone? Guantanamo Bay anyone?

I've said and I still say that when he finally got that 2nd relection, he immediately went into "I don't give a " mode because this is his last term period, it's just more obvious now than it was back then.

[Vladimir]

I was actually with the Administration on this one in terms of Executive privellege (as I was with Clinton when he invoked it). However, what was the 'not under oath, not on the record' offer all about? Is it just me or did Bush essentially say "Okay, I'm gonna send my folks over to lie to you for a while... " ?

Now I want to know what the heck is going on. I hope the Democrats have the spine and the motivation to actually push the subpoena fight, but I doubt it.

I believe it had to do with the Democrats trying to turn a political event into a criminal one. To acquiesce to their demands would have given the proceedings the air of criminality which they clearly aren't. More political nuance perhaps? Or maybe it's people (once again) assuming that Bush is an idiot and embarrassing themselves.

[Pindar]

However, what was the 'not under oath, not on the record' offer all about? Is it just me or did Bush essentially say "Okay, I'm gonna send my folks over to lie to you for a while... " ?

Now I want to know what the heck is going on. I hope the Democrats have the spine and the motivation to actually push the subpoena fight, but I doubt it.

The issue concerns the distinct branches of government. The Justice Department is part of the Executive Branch. The Executive Branch is Constitutionally independent from the Legislative Branch. The point is the Congress does not have the authority to issue subpoenas as the Executive is not under Legislative authority. Any testimony under oath or 'on the record' similarly suggests a beholden status whereas simple testimony is only a courtesy. Further, such would undercut the notion of Executive Privilege. This is the refrain where the Executive expects to be able to get frank council without the advisors feeling they may be put on trial for their offered advice.

Now, if the Congress is stupid enough to issue subpoenas a couple things can happen (which they probably are). First, Congress has no way to enforce its ruling. It would have to turn to U.S. Attorneys (these are the fellows under the Dept. of Justice and thus under the very Executive Branch Congress would be gunning for). The U.S. Attorneys could then do nothing (as in ignore the issue) or as in the last time this occurred that I can remember (back in 1983) turn around and sue the Congress for lacking the authority to subpoena the Executive Branch in the first place. But, leaving aside the practical, which would include the fact this would be drawn out to long past after the Bush Administration left office: the Judicial case history on Executive Privilege doesn't favor the Congresses. Below is from the In re Lindsey (1997) from the heyday of the Clinton scandals where the Court noted that Executive Privilege has only been defeated to date when in the context of a criminal investigation (i.e. Nixon). No criminal investigation has even been suggested let alone started:

"The Supreme Court and this court have held that even the constitutionally based executive privilege for presidential communications fundamental to the operation of the government can be overcome upon a proper showing of need for the evidence in criminal trials and in grand jury proceedings. See United States v. Nixon, 418 U.S. 683, 707-12 (1974); In re Sealed Case (Espy), 121 F.3d 729, 736-38 (D.C. Cir. 1997). In the context of federal criminal investigations and trials, there is no basis for treating legal advice differently from any other advice the Office of the President receives in performing its constitutional functions. The public interest in honest government and in exposing wrongdoing by government officials, as well as the tradition and practice, acknowledged by the Office of the President and by former White House Counsel, of government lawyers reporting evidence of federal criminal offenses whenever such evidence comes to them, lead to the conclusion that a government attorney may not invoke the attorney-client privilege in response to grand jury questions seeking information relating to the possible commission of a federal crime. The extent to which the communications of White House Counsel are privileged against disclosure to a federal grand jury depends, therefore, on whether the communications contain information of possible criminal offenses. Additional protection may flow from executive privilege...

I hope that helps.

[Lemur]

I found a nice summation of the current reasoning about why this is a total non-issue:

So, to recap: a) It's okay for the president--not just legally, but morally--to fire any and all U.S. attorneys any time he feels they are not adequately pursuing his priorities; b) it's okay if those priorities include getting more members of his own party elected; and c) the whole thing is a pseudo-scandal until the evidence of explicit obstruction of justice reaches a threshold where it is beyond dispute.

Thank goodness for moral clarity.

[Lemur]

Another tidbit of information: One of the fired attorneys writes about why he was fired.

Spoiler Alert, click show to read: 

Why I Was Fired

By DAVID C. IGLESIAS
Published: March 21, 2007

Albuquerque — WITH this week’s release of more than 3,000 Justice Department e-mail messages about the dismissal of eight federal prosecutors, it seems clear that politics played a role in the ousters.

Of course, as one of the eight, I’ve felt this way for some time. But now that the record is out there in black and white for the rest of the country to see, the argument that we were fired for “performance related” reasons (in the words of Deputy Attorney General Paul McNulty) is starting to look more than a little wobbly.

United States attorneys have a long history of being insulated from politics. Although we receive our appointments through the political process (I am a Republican who was recommended by Senator Pete Domenici), we are expected to be apolitical once we are in office. I will never forget John Ashcroft, then the attorney general, telling me during the summer of 2001 that politics should play no role during my tenure. I took that message to heart. Little did I know that I could be fired for not being political.

Politics entered my life with two phone calls that I received last fall, just before the November election. One came from Representative Heather Wilson and the other from Senator Domenici, both Republicans from my state, New Mexico.

Ms. Wilson asked me about sealed indictments pertaining to a politically charged corruption case widely reported in the news media involving local Democrats. Her question instantly put me on guard. Prosecutors may not legally talk about indictments, so I was evasive. Shortly after speaking to Ms. Wilson, I received a call from Senator Domenici at my home. The senator wanted to know whether I was going to file corruption charges — the cases Ms. Wilson had been asking about — before November. When I told him that I didn’t think so, he said, “I am very sorry to hear that,” and the line went dead.

A few weeks after those phone calls, my name was added to a list of United States attorneys who would be asked to resign — even though I had excellent office evaluations, the biggest political corruption prosecutions in New Mexico history, a record number of overall prosecutions and a 95 percent conviction rate. (In one of the documents released this week, I was deemed a “diverse up and comer” in 2004. Two years later I was asked to resign with no reasons given.)

When some of my fired colleagues — Daniel Bogden of Las Vegas; Paul Charlton of Phoenix; H. E. Cummins III of Little Rock, Ark.; Carol Lam of San Diego; and John McKay of Seattle — and I testified before Congress on March 6, a disturbing pattern began to emerge. Not only had we not been insulated from politics, we had apparently been singled out for political reasons. (Among the Justice Department’s released documents is one describing the office of Senator Domenici as being “happy as a clam” that I was fired.)

As this story has unfolded these last few weeks, much has been made of my decision to not prosecute alleged voter fraud in New Mexico. Without the benefit of reviewing evidence gleaned from F.B.I. investigative reports, party officials in my state have said that I should have begun a prosecution. What the critics, who don’t have any experience as prosecutors, have asserted is reprehensible — namely that I should have proceeded without having proof beyond a reasonable doubt. The public has a right to believe that prosecution decisions are made on legal, not political, grounds.

What’s more, their narrative has largely ignored that I was one of just two United States attorneys in the country to create a voter-fraud task force in 2004. Mine was bipartisan, and it included state and local law enforcement and election officials.

After reviewing more than 100 complaints of voter fraud, I felt there was one possible case that should be prosecuted federally. I worked with the F.B.I. and the Justice Department’s public integrity section. As much as I wanted to prosecute the case, I could not overcome evidentiary problems. The Justice Department and the F.B.I. did not disagree with my decision in the end not to prosecute.

Good has already come from this scandal. Yesterday, the Senate voted to overturn a 2006 provision in the Patriot Act that allows the attorney general to appoint indefinite interim United States attorneys. The attorney general’s chief of staff has resigned and been replaced by a respected career federal prosecutor, Chuck Rosenberg. The president and attorney general have admitted that “mistakes were made,” and Mr. Domenici and Ms. Wilson have publicly acknowledged calling me.

President Bush addressed this scandal yesterday. I appreciate his gratitude for my service — this marks the first time I have been thanked. But only a written retraction by the Justice Department setting the record straight regarding my performance would settle the issue for me.

David C. Iglesias was United States attorney for the District of New Mexico from October 2001 through last month.

[drone]

Love this editorial from the Washington Post
http://www.washingtonpost.com/wp-dyn...032201804.html

Unnecessary Scandal

By Charles Krauthammer
Friday, March 23, 2007; Page A17

Alberto Gonzales has to go. I say this with no pleasure -- he's a decent and honorable man -- and without the slightest expectation that his departure will blunt the Democratic assault on the Bush administration over the firing of eight U.S. attorneys. In fact, it will probably inflame their blood lust, which is why the president might want to hang on to Gonzales at least through this crisis. That might be tactically wise. But in time, and the sooner the better, Gonzales must resign.

It's not a question of probity but of competence. Gonzales has allowed a scandal to be created where there was none. That is quite an achievement. He had a two-foot putt and he muffed it.

How could he allow his aides to go to Capitol Hill unprepared and misinformed and therefore give inaccurate and misleading testimony? How could Gonzales permit his deputy to say that the prosecutors were fired for performance reasons when all he had to say was that U.S. attorneys serve at the pleasure of the president and the president wanted them replaced?

And why did Gonzales have to claim that the firings were done with no coordination with the White House? That's absurd. Why shouldn't there be White House involvement? That is nothing to be defensive about. Does anyone imagine that Janet Reno fired all 93 U.S. attorneys in March 1993, giving them all of 10 days to clear out, without White House involvement?

[Xiahou]

Love this editorial from the Washington Post
http://www.washingtonpost.com/wp-dyn...032201804.html

I think Charles pretty well nailed it. It was Gonzales' errors that allowed this to grow out of control.

[Lemur]

And how many euphemisms for lying does Charles use? "Unprepared," "misinformed," "inaccurate" and "misleading." They had eight weeks to put forward a simple, believable explanation that would cover the bases. The fact that they have failed to do so is indicative.

[Whacker]

If you're going to BE a politician at least learn to LIE like a politician.

[offtopic]

Lemur, I'm dying to know, what exactly is a/the "Cheddar Curtain"?

[/offtopic]

Edit -

Ahhh, I see. So since I've moved to another state, have I moved beyond the Corn Curtain (http://www.indiana.gov/) ? Or perhaps the Corn Drapes?

[Lemur]

You'll have to ask someone who has moved ... BEYOND the cheddar curtain.

[edit]

I see they've also made a documentary titled Beyond the Cheddar Curtain. Sounds ... thrilling ...

Beyond the Cheddar Curtain, produced by Trillium Productions, is a one-hour long, road-trip style documentary that introduces the audience to Wisconsin ’s artisan cheesemakers through interviews and process shots.