Politics weakens Justice Dept. independence

McClatchy NewspapersJune 18, 2007 

WASHINGTON — The investigations into the Bush administration’s decision to fire nine U.S. attorneys have exposed how the administration has eroded the firewall between partisan politics and the Justice Department and compromised the independence of the nation's top law enforcement agency.

As early as 2002, administration policymakers, Republican legislators and GOP party officials began injecting politics into criminal investigations and civil and voting rights enforcement and applying political litmus tests to judges and career lawyers at the Justice Department.

A McClatchy Newspapers analysis of thousands of Justice Department documents, congressional testimony and interviews with current and former Justice Department officials reveals that the administration:

  • Issued a series of directives to dismantle the traditional boundaries between White House political operatives and the Justice Department, permitting a larger circle of aides to discuss pending criminal and civil investigations.
  • Ignored the advice of top Justice Department lawyers and crafted national security policies that pushed or breached the limits of the law. In one case involving secret spying, at least 10 top department officials — including then-Attorney General John Ashcroft and the head of the FBI — were prepared to resign in protest.

  • Allowed political adviser Karl Rove and the White House Office of Political Affairs to become conduits for complaints about politically sensitive prosecutions. Elected officials and even lobbyists took their frustrations about individual cases or prosecutors to Rove, or to the attorney general and his aides.
  • Replaced some independent-minded U.S. attorneys and career Justice Department lawyers with young lawyers who had little trial experience but belonged to the conservative Federalist Society or the Republican National Lawyers Association.
  • These changes began years before Alberto Gonzales became attorney general in February 2005, in the ask-no-questions atmosphere that followed the terrorist attacks of Sept. 11, 2001. They occurred with the cooperation of a Republican-led Congress and reverberated from the distant Pacific territory of Guam to the Deep South to Western states that could be battlegrounds in next year’s presidential election.

    White House officials deny that the administration has allowed partisan politics to taint the Justice Department. They’ve also defended last year’s firings by emphasizing a president’s right to change his appointees and blaming the prosecutors for failing to carry out President Bush's policies.

    White House spokesman Tony Fratto said the congressional investigation proves only that the firings could have been “handled better” and that “it’s clear that the attorney general did nothing wrong.”

    The administration maintains that it's a coincidence that most of the fired U.S. attorneys served in battleground election states, were investigating Republicans or had irritated local Republicans with their refusals to prosecute Democrats.

    Administration officials note that the Justice Department has prosecuted high-profile Republicans, including lobbyist Jack Abramoff and ex-Rep. Randy “Duke” Cunningham on corruption charges, and I. Lewis “Scooter” Libby, Vice President Dick Cheney’s former chief of staff, for lying and obstructing an investigation.

    Yet many of the nation’s legal experts, including Republicans with long government service, see a troubling change in the administration of justice.

    “We have a Justice Department that has substantially been turned into a political arm of the White House,” said Bruce Fein, a constitutional lawyer and a Justice Department official in the Reagan administration, who's become one of the conservative movement’s fiercest critics of the president.

    “To elicit confidence in the legitimacy of law enforcement, you have to at least create the appearance to the public that prosecutorial decisions and high-level personnel decisions do not pivot on political affiliation,” Fein said. “Irrespective of whether there’s actual partisanship in these decisions, the fear among the public is that this is occurring. It creates a chilling effect on the entire political discourse of the country.”

    POLITICS AND POLICY

    The White House’s first controversial foray into the nation's U.S. attorneys’ offices came long before the current controversy began. Four years ago, in November 2002, the administration announced that it was replacing the U.S. attorney for Guam and the Northern Mariana Islands. Fred Black had filled the job in an interim capacity for nearly a dozen years. The Clinton and Bush administrations both had trouble finding a permanent local replacement.

    Weeks before he was demoted, however, Black had drafted a memo to his superiors at the Justice Department outlining a possible probe of Abramoff. He was then made an assistant U.S. attorney and taken off corruption cases. Black, who declined to comment for this article, has charged that the timing of his removal was suspicious.

    E-mails later made public showed Abramoff planned to press the Justice Department to get rid of Black. Black’s support for a terrorism security assessment for the region threatened the lobbyist’s clients, who wanted cheap labor for the garment industry.

    “I don’t care if they appoint bozo the clown, we need to get rid of Fred Black,” Abramoff wrote to fellow lobbyists.

    Abramoff, who declined through his attorney to comment, pleaded guilty separately last year to bribing or trying to bribe public officials from several states, including members of Congress and administration aides, and bilking millions of dollars from Native American tribes.

    A report last year by the Justice Department’s inspector general accepted the administration’s explanation that it had planned from the start to replace Black and that Abramoff had nothing to do with the firing.

    The report, however, found that a former staffer in the White House’s Office of Political Affairs had kept Abramoff informed about replacements for Black because Ken Mehlman, then the director of the office, who reported to Rove, had “recommended or suggested that I reach out to make Jack aware” of Guam issues.

    POLITICS AND PERSONNEL

    The attentiveness of Rove's office to politically sensitive matters inside the Justice Department reflects the Bush administration's relaxed attitude toward the boundaries between White House political operatives and the department.

    In 2002, a Bush administration memo expanded the circle of people who could be party to discussions between the Justice Department and the White House about pending cases. Sen. Sheldon Whitehouse, D-R.I., a former federal prosecutor, said the change allowed more than 400 White House and 40 Justice Department employees to discuss such cases, compared with seven under previous administrations.

    The Justice Department's decisions about whom to hire also indicate that the administration had an interest in how Justice Department appointees would carry out the president’s policies and in how they'd served the GOP.

    In March 2006, Attorney General Alberto Gonzales signed a secret order authorizing his chief of staff, Kyle Sampson, and White House liaison Monica Goodling to make hiring and firing decisions in his name. Sampson, a former White House personnel official and associate counsel, went to the Justice Department in 2003, and was already discussing with White House political aides plans to fire some U.S. attorneys by the time Gonzales was confirmed as attorney general in February 2005.

    Goodling, a 33-year-old graduate of Pat Robertson’s Regent University law school and former Republican National Committee researcher, started out as a Justice Department spokeswoman, but soon became Gonzales’ aide and the department’s liaison to the White House.

    Gonzales authorized her to make certain civil service hires, and she later testified to Congress that she “crossed the lines” by applying political litmus tests to career candidates, possibly in violation of department policy and the law. Among other things, she considered whether job seekers had campaigned for or donated to Bush or were members of the conservative Federalist Society.

    These hires included assistant U.S. attorneys, immigration judges and even interns. Goodling testified that she couldn’t remember how many times she'd weighed political considerations, but she also suggested that she'd gotten bad advice from superiors. Goodling resigned in April.

    E-mails provided to congressional investigators show that after the 2004 election, the White House briefly considered replacing all 93 prosecutors, though it's unclear whether the proposal for wholesale firings was intended to create opportunities for new candidates or to obscure which prosecutors were the true targets.

    Sampson would later admit to Congress that at one point he pitched the idea of firing Chicago U.S. Attorney Patrick Fitzgerald. Fitzgerald had already been named the special prosecutor to investigate allegations that the administration had leaked the name of a covert CIA officer to retaliate against her husband’s questioning of pre-Iraq war intelligence. Sampson said the White House rejected his idea.

    From early 2005 through the end of 2006, however, documents gathered in congressional inquiries indicate that the department considered removing 30 other U.S. attorneys. They included two who were removed for allegations of misconduct.

    Then, last year, at least nine were forced to resign with little explanation. They included seven U.S. attorneys who resigned last December in Michigan, Arizona, Nevada, New Mexico, Washington and California, and the forced departures earlier in the year of the prosecutors in Arkansas and Missouri. Under attack for the ousters, Justice Department officials later said that the prosecutors had not carried out the administration’s policies on immigration, guns, pornography or death penalty cases.

    Only one, Kevin Ryan in San Francisco, was known to have management problems. The others had jurisdiction over sensitive political cases, raising suspicions that they were removed because their investigations had angered Republicans.

    To get around senators’ expected objections to the administration’s interim picks, Justice Department officials debated using a provision the department had slipped into the 2006 reauthorization of the USA Patriot Act.

    The new law gave the administration the power to install interim U.S. attorneys through the end of Bush’s presidency, without the consent of the Senate, a change that Congress has since reversed.

    While the administration moved to replace many U.S. attorneys with no apparent performance issues, others with problems in their offices never appeared on the secret target lists.

    Alice Martin, the top prosecutor in Birmingham, Ala., is under investigation by the Justice Department’s Office of Professional Responsibility for allegedly mishandling a sensitive employee discrimination matter. Martin’s spokeswoman said she could not comment because it was a pending matter.

    Deirdra Fleming, a black prosecutor, alleges that Martin fired her in 2002 in retaliation for testifying in a co-worker's civil rights case and for filing her own complaint.

    Fleming complained that her co-workers routinely called her a "black bitch," tampered with her work to make her look bad and slashed her tires.

    A month after Fleming filed the complaint with the Equal Employment Opportunity Commission, Martin fired her for not being a “team player.” The commission found in favor of Fleming late last year and plans to demand $4.4 million in damages.

    “I find it difficult to accept that the Department of Justice would screen U.S. attorney candidates for firing and not pick up Alice Martin on their radar screen,” Fleming said.

    Meanwhile, the White House sought out replacement U.S. attorneys with strong Republican credentials.

    Rove protege Tim Griffin, a former opposition researcher for the Republican Party and a former member of the White House political affairs team, was tapped last year as interim prosecutor in Little Rock, Ark., the longtime home of potential Democratic presidential candidate Hillary Clinton, after his predecessor was forced out. Griffin, who declined to comment, resigned his U.S. attorney post this month, citing the controversy.

    Griffin was accused in 2004 of participating in a “vote caging” scheme allegedly designed to bump minority voters off the rolls if they had moved or were serving in the military and had neglected to forward their mail.

    No wrongdoing was proven, however, and the GOP denied any scheme, maintaining that the party simply had been researching voter fraud.

    Other replacement U.S. attorneys included Troy Eid in Colorado, who'd previously worked as a lawyer on Native American issues at the same firm as Abramoff; and two civil rights division lawyers from Washington; Alex Acosta, who went to Miami; and a young lawyer named Matt Dummermuth, who was sent to Iowa.

    In Minnesota, former Gonzales aide Rachel Paulose, 33, replaced an experienced Republican appointee. Paulose’s management style so disturbed her staff earlier this year that her top four employees resigned their management posts in protest.

    White House spokesman Fratto minimized the White House's role in most of those decisions. “Aside from the effort to appoint Tim Griffin to the U.S. attorney position in Arkansas, the White House did not add or remove any names from the list of U.S. attorneys named for replacement,” he said.

    POLITICS AND PROSECUTORS

    Critics contend that White House officials stocked the Justice Department and the prosecutors' offices with loyalists as a way to help Republicans win elections.

    With close races in battleground states, some U.S. attorneys have said that they had to resist attempts by GOP politicians to interfere in their decisions.

    In 2004, party activists pressured then-New Mexico U.S. Attorney David Iglesias to charge Democrats with voter fraud, but he declined, saying the cases weren’t strong enough.

    In Washington state, then-U.S. Attorney John McKay also declined to bring voter fraud charges after Democrat Christine Gregoire was elected governor in 2004 by a 129-vote margin.

    In 2005, with Bush re-elected and the GOP majority in Congress intact, the Justice Department began pushing states to purge their rolls of improperly registered voters.

    Liberal community organizers worried that the efforts were designed to target minority, Democratic-leaning voters.

    In Washington, acting civil rights chief Bradley Schlozman approved a subordinate’s decision to grant Justice Department approval for a controversial Georgia photo ID law for voters — a law a federal judge later struck down.

    Schlozman was later picked to serve as interim U.S. attorney in the swing state of Missouri, replacing ousted prosecutor Todd Graves.

    In the final weeks before last November’s pivotal congressional contests — in which the Democrats took back control of Congress after a dozen years and vowed to investigate the Bush administration — the Justice Department started stepping into close elections.

    In October, Rove and Sampson encouraged department lawyers to pursue voter fraud inquiries in at least three battleground states, despite the proximity to Election Day. Department policy says that investigations of alleged election crimes should almost always wait until after the election.

    Also, Christopher Christie, the top federal prosecutor in New Jersey, subpoenaed Democratic Sen. Robert Menendez. The disclosure of the subpoenas gave Menendez’s Republican opponent last-minute ammunition for his campaign. Christie had been on a target list of prosecutors to be fired, but survived.

    In Missouri, where U.S. Attorney Todd Graves already had been ousted, interim U.S. Attorney Schlozman persuaded a grand jury to indict members of a Democratic-leaning voter registration group for fraud. The indictment was made public five days before the election.

    In New Mexico, Iglesias received telephone calls from Republican Rep. Heather Wilson and Sen. Pete Domenici asking about a corruption investigation against local Democrats. Iglesias interpreted the calls as pressure to bring indictments before Election Day.

    Weeks later, Iglesias was fired, along with McKay and five other prosecutors. Domenici and Wilson have denied inappropriately pressuring Iglesias.

    Current and former Justice Department officials, however, say the firings and the evidence of political interference threaten to set bad precedents for future administrations.

    James Comey, a former Ashcroft deputy attorney general who battled the White House over warrantless surveillance before he resigned in 2005, told the Senate recently that he takes comfort in the fact that the Justice Department survived and emerged stronger after the Watergate scandal 35 years ago.

    But Comey also warned that the current scandal could have lasting implications. “The entire affair has harmed the department and its reputation,” he said.

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