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Why Prosecutors Shouldn't Act Like Partisans

By Dan Froomkin
Special to washingtonpost.com
Tuesday, March 13, 2007; 4:34 PM

Big news today in The Washington Post and the New York Times: It turns out that the controversial purge of eight U.S. attorneys had its genesis inside the White House and may have been precipitated by President Bush's expression of concern in October that some prosecutors had not been sufficiently aggressive in pursuing cases that could have helped Republican candidates in the upcoming election.

No one would deny that one of the duties of the president of the United States is to place people of his choosing in key positions throughout the executive branch, including in key law-enforcement positions.

But this White House appears to have lost sight of a distinction that is critical to the maintenance of good government: That just because someone is a political appointee doesn't mean they're supposed to do their jobs primarily as partisans -- or that they should be fired if they fail to do so to the satisfaction of political operatives in the White House.

That is particularly the case with law enforcement. Filling non-law enforcement jobs with political appointees who are incompetent or blindly partisan may well take a toll on the government's ability to do function properly. (See, for instance, David E. Lewis in NiemanWatchdog.org.)

But in law-enforcement jobs -- such as the attorney general, the director of the FBI, and the country's 93 U.S. attorneys -- overtly partisan behavior is a more troubling problem. While the men and women in those positions serve at the pleasure of the president, it is also a critically important part of their job to remain independent.

That's because it's flatly un-American for the law to be used as a political weapon. It erodes public confidence in the justice system, and offends the American commitment to fairness. It's the sort of thing that, quite properly, can lead to impeachment.

According to a White House spokeswoman, Bush in October passed along to Attorney General Alberto R. Gonzales complaints he had heard that some U.S. attorneys had not adequately pursued voter-fraud allegations.

What's significant about that is that charges of alleged Democratic voter fraud have long been a notorious GOP stalking horse. And some Republicans, at the time, were desperately casting about for some sort of Democratic controversy to distract voters from the GOP corruption scandals that had engulfed Washington -- and that quite possibly ended up costing them both houses of Congress.

One more observation: We can now trace the genesis of the purge back two years to then-White House counsel Harriet Miers's proposal to do a generic housecleaning of all U.S. attorneys. That might have provided nifty cover for ridding the White House of the pesky special counsel Patrick J. Fitzgerald, but her proposal was pretty obviously a nonstarter because it would have been an epic task.

It does date White House thinking about the concept of firing U.S. attorneys back a long ways, but I'm more interested in the purge list that eventually emerged, in the White House's involvement in developing that list, in Karl Rove's role, and in Bush's apparently endorsement of the idea of punishing attorneys who weren't helping the campaign.

The Stories

Dan Eggen and John Solomon writes in The Washington Post: "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 aide in charge of the dismissals -- [Gonzales]chief of staff, D. Kyle Sampson -- resigned yesterday, officials said, after acknowledging that he did not tell key Justice officials about the extent of his communications with the White House, leading them to provide incomplete information to Congress."

The new documents "show that the White House and other administration officials were more closely involved in the dismissals, and at a much earlier date, than they have previously acknowledged. . . .

"Administration officials say they are braced for a new round of criticism today from lawmakers who may feel misled by recent testimony from Gonzales, Deputy Attorney General Paul J. McNulty and William E. Moschella, principal associate deputy attorney general. Several Democrats have called in recent days for Gonzales to resign. . . .

"The e-mails show that [White House political adviser Karl] Rove was interested in the appointment of a former aide, Tim Griffin, as an Arkansas prosecutor. Sampson wrote in one that 'getting him appointed was important to Harriet, Karl, etc.'

"Sampson sent an e-mail to Miers in March 2005 that ranked all 93 U.S. attorneys. Strong performers 'exhibited loyalty' to the administration; low performers were 'weak U.S. attorneys who have been ineffectual managers and prosecutors, chafed against Administration initiatives, etc.' A third group merited no opinion.

"At least a dozen prosecutors were on a 'target list' to be fired at one time or another, the e-mails show. . . .

"Sampson also strongly urged bypassing Congress in naming replacements, using a little-known power slipped into the renewal of the USA Patriot Act in March 2006 that allows the attorney general to name interim replacements without Senate confirmation. . . .

"By avoiding Senate confirmation, Sampson added, 'we can give far less deference to home state senators and thereby get 1.) our preferred person appointed and 2.) do it far faster and more efficiently at less political costs to the White House.'"

David Johnston and Eric Lipton write in the New York Times: "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. . . .

"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. . . .

"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. . . .

"Previously, the White House had said that Mr. Bush's aides approved the list of prosecutors only after it was compiled.

"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.' . . .

"Justice Department officials said Monday that they had only learned recently about Mr. Sampson's extensive e-mail and memos with Ms. Miers about the prosecutors. The communications were discovered Thursday when Mr. Sampson turned over the material to officials who were assembling documents in response to Congressional requests."

Richard B. Schmitt writes in the Los Angeles Times: "Democrats expressed surprise at the latest developments.

"'This latest information appears to be inconsistent with the department's testimony to the House Judiciary Committee last week, which indicated that the White House was not involved in the firings, other than to approve a final list. It now appears that the White House was the instigating force,' Rep. John Conyers (D-Mich.), the chairman of the House Judiciary Committee, said Monday night."

Here is senator Patrick Leahy's statement today: "This is not how justice is served, nor is it how our system of checks and balances is designed to work. It is an abuse of power committed in secret to steer certain outcomes in our justice system, and then to dust over the tracks."

Eric Lipton writes in the New York Times: "D. Kyle Sampson has never worked full time as a federal prosecutor. But for much of the Bush administration he played a considerable role in vetting who served in the Justice Department. And last year he used his post as chief of staff to the attorney general to make a bid for a job as a United States attorney in Utah. . . .

"He was also known as the gatekeeper to Mr. Gonzales, as well as his traveling companion, which resulted in his speaking with United States attorneys from around the nation."

Josh Marshall, whose Talking Points blog aggressively pursued this story even as the mainstream media scoffed at it, writes today that: "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."

Speaking of Voting Irregularities

And here's an interesting side note to the White House's interest in Democratic voter fraud: The BBC reported in 2004 that "[a] secret document obtained from inside Bush campaign headquarters in Florida suggests a plan - possibly in violation of US law - to disrupt voting in the state's African-American voting districts."

Republican National Committee e-mails about "caging" -- a tactic that targets people for voter challenges -- turned up on this Web site. Several of them had been sent by Tim Griffin, then the RNC's research director, later Karl Rove's deputy director of political affairs at the White House -- and the man Rove got appointed as the interim replacement to one of the purged U.S. Attorneys.

Cheney Once Offered to Resign

Thomas M. DeFrank of the New York Daily News reports that Vice President Cheney offered to resign in 2004.

"In early 2004, Bush and Cheney had a conversation that included resignation. Cheney, not Bush, brought it up. In fact, Cheney volunteered to step down, according to someone in the Bush orbit who authoritatively knows what happened.

"Bush asked if Cheney had a health issue. No, Cheney replied; it's political, not medical. He'd become a political liability and wanted to give Bush the option of making a change before a bruising, tight reelection battle.

"That was the end of it. 'He offered to step off the ticket, and the President said forget it,' a well-placed source said."

DeFrank drops this bomb in this context of a story about how Cheney isn't going anywhere now: "With the cherry blossoms near glorious bloom, the silly season has returned to Washington. The know-nothing buzz is back: Might Vice President Cheney have to resign?

"Anyone who thinks Cheney will leave his post under his own steam doesn't know him, or his boss. As Cheney would surely say if pressed, which he wouldn't like: hogwash."

Cheney's Speech

More fire and brimstone from Cheney yesterday.

Sheryl Gay Stolberg writes in the New York Times: "Vice President Dick Cheney lashed out at Congressional opponents of the war in Iraq on Monday, saying that Democrats and others who would limit President Bush's authority to spend money on the war were undermining the troops and 'telling the enemy simply to watch the clock and wait us out.'

"Mr. Cheney's remarks, delivered at a meeting of The American Israel Public Affairs Committee, were the most pointed warning to date from any administration official -- including President Bush, who has threatened to veto a $100 billion emergency war-spending bill if Congress follows through with a plan by House Democratic leaders to amend it to require the withdrawal of troops in 2008. . . .

"Mr. Cheney's remarks served to inflame what is already an impassioned debate on Capitol Hill, as Congressional Democrats move to translate voter discontent with the war into binding policy changes."

On CNN yesterday, Wolf Blitzer asked Max Cleland -- former Democratic senator from Georgia, former director of the Veterans Administration and a wounded veteran himself -- to react to Cheney's speech:

"BLITZER: Senator, if you could sit down with the vice president and have a direct one-on-one meeting with him, what would you say to him?

"CLELAND: Where the hell were you in the Vietnam War?

"If you had have gone to Vietnam like the rest of us, maybe you would have learned something about war. You can't keep troops on the ground forever. They've got to have a mission. They've got to have a purpose. You can't keep sending them back and back and back with no mission and no purpose.

"As a matter of fact, the real enemy is al Qaeda. It's al Qaeda -- stupid. It's not in Iraq. That's why we have to withdraw the ground forces there, settle Iraq with a diplomatic solution and go after al Qaeda.

"That's what we should have been doing for the last four years.

"Instead, this administration and this vice president and this president wants to send more troops to Iraq. Unbelievable."

Glenn Greenwald writes in Salon: "In his speech to the AIPAC convention yesterday, Dick Cheney laid out his thirst for literally endless war -- and his equally intense aversion to war-avoidance -- as unabashedly as can be. The towering question which America faces is whether it wants to continue to embrace this bloodthirsty and truly crazed vision (which many leading presidential candidates seem to share), or whether we want to repudiate it fundamentally."

Scooter Libby Watch

Robert Schmidt writes for Bloomberg: "Supporters of Lewis 'Scooter' Libby, who was convicted March 6 of perjury, are mobilizing to help the former chief of staff to Vice President Dick Cheney pay spiraling legal bills."

Pardon Poll

CNN reports: "Nearly 70 percent of Americans oppose a presidential pardon for former White House aide Lewis 'Scooter' Libby after his conviction on perjury and other charges related to a CIA agent's exposure, according to a CNN poll out Monday.

"Just 18 percent said they would support a pardon for Libby, the former chief of staff to Vice President Dick Cheney, while 69 percent said they opposed the idea. Meanwhile, a narrow majority [52 percent] said they believe Cheney was part of a cover-up in the case."

Liberal blogs such as Crooks and Liars yesterday appropriately marveled at NBC News reporter Andrea Mitchell's assertion that a majority of Americans actually support a pardon.

Iraq Revisionism

Thomas E. Ricks writes in The Washington Post: "Feb. 22, 2006, is the day the Bush administration says everything in Iraq changed.

"Before that day, military and administration officials frequently explain, Iraq was moving in the right direction: National elections had been held, and a government was forming. But then the bombing of the golden dome shrine in Samarra derailed that positive momentum and unleashed a wave of brutal sectarian violence. . . .

"Many Iraq specialists and defense analysts contend that this narrative of the mosque bombing is misleading, yet also revealing of how U.S. strategy in Iraq has evolved. Experts say the attack did not begin a civil war but rather confirmed the ongoing deterioration and violence in Iraq -- conditions the White House and the generals had resisted recognizing....

"Since 2003, violence in Iraq has increased at a steady pace, with some slight dips each winter. The increase continued last year, reaching an average of about 5,000 acts of violence a month. By the time of the shrine bombing, about 2,287 U.S. troops had died in Iraq; since then, that number has increased by 903.

"What the official narrative does not consider, said Ahmed Hashim, a professor of strategy at the Naval War College, is that civil war was well underway before February 2006. The mosque bombing should be seen as 'a reflection of that, not a cause,' he said.

"Asad Abu Khalil, a political scientist at California State University at Stanislaus, said it is characteristic of foreign occupiers to seize upon one episode and point to it as the moment that undercut all their good efforts."

Ricks's excellent story nevertheless leaves out an additional twist: The Samarra-as-turning-point narrative was actually not adopted until long after the bombing. In fact, in March and April, Bush repeatedly held up the supposedly nonviolent reaction to Samarra as proof of progress in Iraq.

Here he is on March 13, 2006: "Immediately after the attack, I said that Iraq faced a moment of choosing. And in the days that followed, the Iraqi people made their choice. They looked into the abyss and did not like what they saw."

And here he is on April 6, 2006: "And they blew up the -- one of the holiest sites in Samarra, trying to get the Sunnis to get after the Shi'a, and vice versa. . . . This has been an objective for awhile. First it was, go after coalition troops. There is still danger for our troops, don't get me wrong. But they really tried to incite a civil war. And what was interesting to watch is to watch the reaction for the -- by the Government. The Government, including many of the religious leaders, stood up and said, 'No, we don't want to go there; we're not interested in a civil war.'"

It wasn't until August 31, 2006 that Bush first asserted the revised, and yet equally spurious, narrative: "The Shi'a community resisted the impulse to seek revenge for awhile. But after this February bombing of the Shi'a Golden Dome Mosque in Samarra, extremist groups mobilized and sectarian death squads formed on the streets of Baghdad and other areas."

Immigration Watch

Peter Baker writes in The Washington Post: "President Bush defended a recent surge of deportations that have inflamed passions here in Latin America, but vowed Monday to redouble efforts to overhaul immigration laws and called on the Senate to pass comprehensive legislation by summer. . . .

"Tension over the matter complicated Bush's efforts to use his trip to convince Latin America that 'we care' about poverty, destitution and 'social justice,' as he has put it. . . .

"It appeared that [Guatemalan President Oscar] Berger inadvertently prompted Bush to publicly set the August goal for immigration legislation when he told reporters that the president had used the date in their private conversation. Bush acknowledged that, while tempering it by saying it was not a firm deadline. But he said it had to be done by then because the fall would be consumed by appropriations bills."

Jim Rutenberg and Marc Lacey write in the New York Times that Bush was "confronted with an angry, outside-in perspective on the immigration debate raging at home, with even his otherwise friendly host, President Óscar Berger, using a ceremonial welcome to criticize the arrest of several hundred illegal workers, many of them Guatemalans, in Massachusetts last week. . . .

"The remark, coming during otherwise warm comments by Mr. Berger, reflected the longstanding anger here over deportation of Guatemalans from the United States, which has been stoked by a raid last week in which more than 300 workers were arrested at Michael Bianco Inc., a company in New Bedford, Mass., that provides vests for the military. . . .

"Newspapers here have been dominated by news of the raid, and stories abound of families torn apart and children left behind as their parents were sent off to Texas and New Mexico for deportation, but federal officials say 60 people were released for humanitarian reasons.

"Facing pointed questions from Guatemalan journalists, Mr. Bush stood by the raid, saying, 'People will be treated with respect, but the United States will enforce our law.'

"Mr. Bush said he disputed 'conspiracies' relayed by Mr. Berger that children were taken away from families.

"Mr. Bush denied such accounts. 'No es la verdad,' Mr. Bush said, 'That's not the way America operates. We're a decent, compassionate country. Those are the kind of things we do not do. We believe in families, and we'll treat people with dignity.'"

But what's really la verdad?

Melissa Trujillo writes for the Associated Press: "The head of Massachusetts' social services on Monday called for the release of about 20 factory workers arrested in an immigration raid, saying many have children with no one else to care for them."

Aaron Nicodemus writes in the New Bedford Standard-Times: "Nearly 20 illegal immigrants nabbed in last week's Michael Bianco Inc. raid were released by federal authorities yesterday to care for their young children, according to federal immigration authorities and an attorney working for their release."

And Ken Hartnett, the retired editor of The Standard-Times, wrote on Sunday: "The great immigration raid in New Bedford, whatever the intent, was a human rights catastrophe. Not since the days of fugitive slaves has the application of federal law been so in conflict with our sense of humanity. When families get torn apart, traumatized children get placed in foster homes and scores of people get shipped to Texas without due process, decency is at issue every bit as much as immigration policy."

Today: Mexico

James C. McKinley Jr. writes in the New York Times about "how touchy relations have become between the United States and Mexico during Mr. Bush's presidency. . . .

"In large measure, the relationship has stagnated in recent years as Mr. Bush has failed to deliver on a promise of changing immigration laws to allow more guest workers, while conservatives in his party have pushed through tougher measures to control the border, among them a giant wall."

One big question: whether Mexican President Felipe Calderón "is willing or able to become a pro-American counterweight to Hugo Chávez, the left-wing populist leader of Venezuela who is using his country's oil wealth to undermine American influence in Latin America.

"For political reasons, however, Mr. Calderón has been reluctant to become the anti-Chávez standard-bearer in public. He said in a recent interview with The Associated Press, 'I am not interested in playing a role with Bush in that respect.' . . .

"One trouble for Mr. Bush is that he is a lame-duck president facing an opposition-controlled Congress. He seems to have little to offer Mr. Calderón beyond a handshake and a photo in front of Mayan ruins, political analysts say."

On the Plane

In his " On the Plane" blog for washingtonpost.com, Peter Baker puts out an APB for Tony Snow.

Three Biggest Mistakes

William McKenzie writes in his Dallas Morning News column about "the three worst mistakes of this presidency.

"They are linked together by a trust-us attitude. And for those of us who have wanted his presidency to succeed, these mistakes have undermined Mr. Bush's pledge to unite America and seek a humble presence around the world."

They are: "the selection of Dick Cheney as vice president," "the personalizing of 9/11," and "bringing Karl Rove into the White House."

Bush on Fox

Bush sat down in Uruguay for an interview with Fox News's Greta Van Susteren (here is the video). As far as I can tell the highlights were that Bush went out of his way to alert Fox viewers that Citgo is owned by Venezuelan government, and that he praised Uruguay's "fantastic meats."

Cartoon Watch

Mike Luckovich on purges; Jeff Danziger on Bush in Latin America; and Pat Oliphant on Scooter Libby.

Live Online

I'll be Live Online tomorrow at 1 p.m. ET.

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