What Independent Judiciary?

Jeff Alworth

I predict that in the future, armchair historians (aka, bloggers) will pass the time playing "which was worst?"--a parlor game wherein participants sift through the presidency of George W. Bush for nuggets of corruption.  Pre-Iraq flimflam?  Black sites?  Abu Ghraib?  No-bid contracts?  Secret renditions?  NSA warrantless wiretapping?  You see, already the list is a half-mile long, and surely there is more to uncover.  That said, I'm willing to bet nothing tops the unfolding scandal about the administration-orchestrated firings of eight federal prosecutors who were not sufficiently crooked enough.  With his other misdeeds, Bush merely nibbled on the fabric of a free democracy; by firing prosecutors, he started gobbling it whole.

Very briefly--and forgive me if I missed a few details--here's what happened.  The White House, starting in February of 2005, was dissatisfied with the performance of federal prosecutors, whom they felt had either been too soft on Democratic crimes or insufficiently loyal to GOP dictates (they literally rated each prosecutor for loyalty).  Initially, Bush called for all 93 of their heads, but later accepted eight.  The White House's strategy was to take advantage of a "little-noticed" provision in the Patriot Act that allowed Bush to replace fired prosecutors with "interim appointees" who didn't require Senate approval.  That way, Bush could fire the uncorruptable and slip true believers into their posts--guys who really knew how to toe Bush's line.  (Karl Rove put in dibs to have a former 37-year-old aid named.  "[I]f we don't ever exercise it then what's the point of having it?" )  Before being fired, some of the prosecutors were shaken down by House and Senate Republicans.  Six of eight were Republicans.

When revelations of the firings came to light, the White House offered a series of bogus excuses about their motivation--first claiming it was routine and that the prosecutors were substandard (they weren't), and later that the prosecutors weren't aggressive enough in going after cases of voter fraud.  As Josh Marshall has documented, however, these "voter fraud" cases were the GOP's effort to "stymie get out the vote efforts or shut down voter registration drives -- mainly, though not exclusively, in minority voting precincts."  When today's Washington Post story broke with reams of White House emails, it showed exactly what the White House was up to: using the federal courts to punish the Democratic Party.

The story is remarkable for its directness and venality.

Stable democracies depend on independent courts--in fact, an independent judiciary is one of the benchmarks for determining whether a country has become a democracy.  George Bush has done his best to pack the courts, which is his right as President.  He has occasionally colluded with Senate leaders to strong-arm the Democratic minority into accepting extreme appointees, but okay--this is still his right under the Constitution.  But, when he begins to demand his federal prosecutors act as his long arm in the federal courts to punish the opposition party, he steps way over the Constitutional line.  When the federal courts become a  mechanism of the Executive Branch to subvert the Legislative, we totter toward rigged rule.  This is a very, very big deal.  The skeletons in Bush's closet are going to have to be impressive indeed to outdo this one.

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Sources
Washington Post, Eggen and Solomon, 3/12/07
Salon, Follman, 2/28/07
Josh Marshall, 3/12/07 and 3/13/07
TPMuckraker, 3/13/07

Comments

  • Chris (unverified)
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    Jeff, I agree with everything you're saying, except that this isn't really a story about the "judiciary" or the courts. It's about abusing the office of U.S. Attorney. Right?

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    Yeah, but the upshot, in my view, is far more grave--by subverting the Senate's ability to exercise oversite (with the Senate's approval) and manipulating what the prosecutors prosecute, the effect is an assault on the judicial branch. Bush is effectively trying to use the judicial branch against the Dems. So I'd say it's very much a story about the courts.

    One man's opinion.

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    I think we should move to a system where prosecutors don't "serve at the pleasure of the president" but rather serve fixed five-year terms - sort of like the Fed chairman. They could be impeached, but they'd become a bit more independent.

    Here's what I want to know - at what point does the Administration's dalliance here rise to the level of prosecutable obstruction of justice?

  • Harry (unverified)
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    <h2>"I think we should move to a system where prosecutors don't "serve at the pleasure of the president"</h2>

    I gotta admit I haven't followed this one closely, but are all political appointments like that, including these federal prosecutors?

    Didn't Clinton also do this back in 1993 when he came into his first term?

    Aren't Ambassadors also treated as the same? Didn't Molly Bordanaro get a plume Ambassador job after helping get Bush elected in 2000?

    I guess I better go back and read more closely to see what all the fuss is about, huh?

    Anybody have a Cliffnotes version (okay Albertogate for Dummies) on this tempest?

  • Peter Graven (unverified)
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    I think it is important to start asking McCain and Guiliani to denounce the administration for its responsibility in the matter. I'll admit I'm just learning the power of the "forced denouncement" after watching Obama-Clinton. But, seriously, just because McCain won't disagree with Bush about the war doesn't mean he can't disagree about this corruption.

    I'm starting to feel the Rove divide and conquer impulse: create a republican party that is partially made up of people loyal to the president and the war and another that recognizes the mistakes they are making. It's a dichotomy that will not survive the presidential election.

  • BlueNote (unverified)
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    Prosecutors have tremendous power. The decision to charge someone with a crime can result in the loss of careers, families, and reputations even if there is no trial or conviction. The idea that local and national party operatives (on either side) are able to use their political connections to directly influence the selection of prosecutors on political grounds should be frightening to everyone regardless of party affiliation. The prosecutors I have had contact with are ethical hardworking people, but you have to wonder whether some of their future decisions may be subtly influenced by these events.

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    What bothers me even more than politicizing the US Attorney's office was the use of the Patriot's Act to snoop on the eight who were fired. They must have been scary terrorists in the eyes of the Attorney General of the United States. Looks like we'll be treated to several good books about the subversion of democracy in the years to come. The Patriot's act needs a new name because there were no patriots involved in this latest assault on eight US Attorneys.

    Anyone still sitting on the sidelines needs to become very active. The run up to 2008 has begun, join the front lines.

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    Correction: The Patriot's Act was modified in 2006.

    "The Patriot Act provision that the administration and it's Republican enablers slipped into the Patriot Act was for the purpose to allow the swift interim replacement of a US attorney who was, for example, killed by terrorism." NYT 3/14 editorial

    Gonzales was going to replace the fired eight without Senate approval. That's my beef.

  • Faolan (unverified)
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    Harry,

    No Clinton did not do this when he came in in 1993. For one thing what Clinton did do is he asked a mojority of the US attornys at the time to resign, but Bush41, and Reagan before him did exactly the same thing. AND Clinton did not ask for resignations of any attorny that was busy working on a case already. In the past Federal attorneys have served through the second term of a two term President.

    The main exception to this whole situation is that Gonzoles specifically told the Senate at his confirmation hearing that he wouldn't do this. Memos are now coming out to reveal that he knew this was coming a long time ago. Also these attorneys have been being pressured to leave by more than just the administration. Senator Demeneci is getting lawyers because he's probably going to be indicted for obstruction of Justice directly relating to this.

    Also the Bush administration is doing this specifically because it would allow them to take advantage of the little known provision of the unPATRIOT act to appoint replacements that would not have to be confirmed by the Senate. What they are doing is inherently dishonest and they are trying to cover it up. THAT is the problem.

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    Harry and Faolan,

    US prosecutors are political appointees. It is not unusual for them to turn over with the election of new president. They are charged with carrying out the AG's agenda, which sometimes is closely linked to the president's. John Ashcroft had his own deal--going after Oregon for death with dignity, prosecuting medical marijuana--which is one reason why Bush brought in his personal lawyer (Gonzales) to replace Ashcroft.

    However, firing prosecutors once a president is in office is rare:

    Richard Nixon fired one when he was in office. [Jimmy] Carter fired a U.S. attorney who was making an investigation of a Democratic House member that he wanted to keep in office. Bill Clinton fired one. But it's really very rare for this to happen.

    The difference between prosecutors and ambassadors is enormous. Being an ambassador is a largely ceremonial position, but US attorneys are the main agent of the government's crime prosecution. If they're used by the government to settle political scores, we cease to have a system of checks and balances--they become the President's legal goons.

  • BlueNote (unverified)
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    Per NPR radio this morning, Jimmy Carter and Bill Clinton each "fired" one US attorney on what appeared to be political grounds. The NPR story did not give a lot of detail, but in general it sounded like a US attorney was pursuing an investigation into a Dem incumbent congressman in each case and, apparently, whoever was President wanted to protect the incumbent. Not good.

    I don't care which party is involved or what the excuse is, this is an ugly perversion of the democratic process.

  • Dan (unverified)
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    In 1993, President Clinton fired every single US attorney save Michael Chertoff, the current head of Homeland Security.

    Faolan,

    In the real world, when people are asked to resign, it means they are getting fired. In the politically polite cocktail party conversations, "asked to resign" is just so much more civilized. Just a spot more tea, thank you.

    Where all of the US attorneys that Clinton fired incompetent? NO. Probably none of them were incompetent. He did it so that he'd have his people in those spots.

    Please don't act so shocked and indignant that a politician (Bush, and yes, Clinton) are being political.

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    Josh Marshall, who has been all over this for more than a month before it broke, gives the ominious context last night of what went down with just one of the fired eight, that of Carol Lam, whose firing should have set-off alrams long ago.

    Below (Josh Marshall) noted this paragraph in tonight's article from McClatchy ...
    In an e-mail dated May 11, 2006, Sampson urged the White House counsel's office to call him regarding "the real problem we have right now with Carol Lam," who then the U.S. attorney for southern California. Earlier that morning, the Los Angeles Times reported that Lam's corruption investigation of former Rep. Randy "Duke" Cunningham, R-Calif., had expanded to include another California Republican, Rep Jerry Lewis.
    The timing is well worth noting. But the Lewis investigation wasn't the only trouble Lam was making. Look what else was happening in the couple weeks before May 11th ... April 28th, 2006 -- Cunningham-Wilkes-Foggo "Hookergate" scandal breaks open. Probe grows out of San Diego US Attorney's Office's Cunningham investigation. CIA Director Goss denies involvement. April 29th, 2006 -- Washington Post reports that Hookergate's Shirlington Limo Service had $21 million contract with Department of Homeland Security. May 2nd, 2006 -- Kyle "Dusty" Foggo confirms attendence at Wilkes/Cunningham Hookergate parties. May 4th, 2006 -- Watergate Hotel subpoenaed in San Diego/Cunningham/Hookergate probe. May 5th, 2006 -- WSJ reports that Kyle "Dusty" Foggo, who Goss installed as #3 at CIA, is under criminal investigation as part of the San Diego/Cunningham investigation. May 5th, 2006 -- Porter Goss resigns as Director of Central Intelligence. May 6th, 2006 -- WaPo reports on questionable DHS contract awarded to Shirlington Limo, the 'hookergate' Limo service under scrutiny as part of the San Diego/Cunningham investigation. Similar report in the Times. May 7th, 2006 -- House Committee to investigate DHS contract with Hookergate's Shirlington Limo. May 8th, 2006 -- Lyle "Dusty" Foggo resigns at CIA. May 11th, 2006 -- LA Times reports that Cunningham investigation has expanded into the dealings of Rep. Jerry Lewis (R-CA), House Appropriations Committee Chairman. Sampson writes email about Lam being a "real problem". May 12th, 2006 -- Federal agents working on the San Diego/Cunningham investigation execute search warrants on the home and CIA office of Kyle "Dusty" Foggo.

    Another thing to consider is, as cmc over at TPMmuckraker noted in the comments:

    I think Carol Lam's big sin was that she was independent. She was always committed to fight white collar crime but Rove probably figured that he would point her in a direction and she would follow. Didn't work with her. I'm guessing that Karl Rove's big push for the 2006 election was going to be anti-immigrant. It was the "new gay". It rolled out early in San Diego- way before the San Diego Union Tribune rolled out Duke's story. All of hate radio was on message. But Carol Lam wasn't doing her part. She actually prosecuted the owners of a fence company that prosecuted illegal immigrants. How was that going to make people freightened about immigrants "taking over our country"? Plus she may have riled the GOP base. I think the wider story may have been that Karl Rove used the Justice Dept for political purposes- not only to target Dems and give a pass to Republicans but also to choreograph issues that he wanted to be part of an election campaign. Everything is about MESSAGE with these folks. Nothing is about substance, truth or justice.
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    Posted by: BlueNote | Mar 14, 2007 9:24:57 AM

    Carter did fire a US Attorney involved in a corruption investigation over a quarter of a century ago, and was excoriated for it at the time even though the investigation continued full-throttle and led to convictions by the replacement attorney. Don't know about Clinton.

    Even if Carter and Clinton did something similar, it in no way legitimatizes or makes correct what Gonzo and Bush have done here. Because someone a quarter of a century ago robs a bank, doesn't make it ok to rob a bank now.

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    Posted by: Dan | Mar 14, 2007 12:20:37 PM

    You miss the point (though swallowed the spin perfectly).

    What Bush I and Clinton did in replacing the most of the US Attorney's when they came into office is standard operating procedure. Firing attorneys in the middle of your term because they are investigating major corruption of heavy hitters in the CIA and open the Hill, which is what Chimpy McFlightsuit did, is not even close.

    The issue isn't if during an administration change, people were moved out of office. The issue is US Attorney's were fired for not going after Democrats based on bogus "voter fraud" claims, or fired FOR vigorously going after real corruption crimes committed by high level officials in your own administration or your political party over on the hill.

    But glad to see you swallow the spin and excuse retribution for pursuing criminal corruption cases because of politics.

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    There are many reasons to criticize Bush, and he's given us so much ammunition that there is no reason to misstate the facts.

    1) This is not an attack on the judiciary. The Justice Department is a part of the executive branch.

    2) These are political appointees and Bush does have the right to dismiss them for any reason. What stinks about this one is the lying about how and why they did it.

    3) This is not about "corruption", this is about raw and arrogant political power. (Most of the other items on Jeff's list also aren't about corruption.)

    4) Bush did not initially call for all 93 to be fired--that was contained in a memo from Harriet Miers and was countermanded by Gonzales.

    5) The only prosecutor (one not "some") whom I recall reporting inappropriate contacts from GOP members was from New Mexico, and he reported contact from one Senator and one House member.

    This is not intended to minimize what is going on here, but let's make sure we keep the facts straight.

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    A correction to my own post (though i am still not seeing any names mentioned other than the two from NM). Jeff was right on this one:

    And several of the fired attorneys told Congress last week that some lawmakers had questioned them about corruption investigations, inquiries the prosecutors considered inappropriate.

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    Paul, I may not have been as clear about the facts and the implications. I believe that the implication is an attack on the judiciary. As I said in comments above: "by subverting the Senate's ability to exercise oversight... and manipulating what the prosecutors prosecute, the effect is an assault on the judicial branch. Bush is effectively trying to use the judicial branch against the Dems."

    On your second point, you are correct, but there's more to be said. He has the right, but a mid-tenure mass firing is unprecedented; furthermore, the reason these firings happened was because someone managed to rig the Patriot Act to skip Senate oversight on reappointments.

    On 3, this is something of a semantic argument--is abuse of power corruption? Is the subversion of Senate oversight?

    And on five, you corrected yourself (Domenici was only the most egregious example).

    However, I'll accept the correction on four--I should have said "White House." Here, too, though we have room to quibble. Bush has managed to avoid culpability for all things that issue from the White House, because the paper trail always indicts someone below him. I used his name here because the final authority should rest with him. The US AG is his long-time personal lawyer and Harriet Miers was his current lawyer in the memo you cite. I should have been scrupulously accurate, but come on--she is Bush's personal appointed lawyer. Was she freelancing when she wrote this?

    It's time to hold Bush accountable for his own abuses of power.

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    Check out Dan Froomkin's White House Watch blog in today's Washington Post, citing Paul Krugman in today's NY Times.

    Quote:

    " Donald Shields and John Cragan , two professors of communication, have compiled a database of investigations and/or indictments of candidates and elected officials by U.S. attorneys since the Bush administration came to power. Of the 375 cases they identified, 10 involved independents, 67 involved Republicans and 298 involved Democrats. The main source of this partisan tilt was a huge disparity in investigations of local politicians, in which Democrats were seven times as likely as Republicans to face Justice Department scrutiny.

    "How can this have been happening without a national uproar? The authors explain: 'We believe that this tremendous disparity is politically motivated and it occurs because the local (non-statewide and non-congressional) investigations occur under the radar of a diligent national press. Each instance is treated by a local beat reporter as an isolated case that is only of local interest.'"

  • Faolan (unverified)
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    Dan,

    There is a huge difference between asking someone to resign and firing them. When one is asked to resign one can in fact say "no".

    And who said I was shocked? I find none of this shocking. Not even the rampant corruption of the Bush regime. I have known since before he was appionted by the Supreme Court that the man was stupid and criminal, it runs in the family... well... criminality does anyway. As much as I find Bush41 disgusting he at least is very smart.

    I find none of the actions of this 'administration' surprising they are all criminals and fanatics. At least the upper echelons anyway. I can't say much about below cabinet level. <rant> What I do find shocking is the ability of a truly mind-bogglingly large portion of our country to just accept this crap and allow it to happen.

    Mr. Bush is a traitor.

    Mr. Cheney is a traitor.

    They are both knowingly enriching foreign based entities (corporations) at the expense, both in lives and wealth, of this country.

    If a majority of this country had any actual integrity both of those men and a few of their subordinates would have been put against a wall and shot by now.

    Every single argument they have made for going into Iraq have been proven not only to be wrong but to be a lie. The only people who have benefited from this "war" are Multi-national corporations who are directly linked to both of them and their families. Oh... and Iran. Oh... and North Korea.

    Thousands of lives lost and Tens of BILLIONS of dollars transferred to corporations who have deliberately served our soldiers bad water and food among other things. </rant>

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    Paul, Doc Hastings was also implicated via his Chief of Staff, for trying to pressure USA McKay in Washington State.

  • dan (unverified)
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    Faolan,

    thank you for the thoughtful response.

    Any by the way, there is NO difference between being fired and being asked to resign.

    The only difference is how you list it on your resume. The intent is all the same.

    Dan

  • Jon (unverified)
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    The Top 10 Reasons Gonzales Must Go: 1. Lying Under Oath 2. Purging Prosecutors 3. Misusing the Patriot Act's National Security Letters 4. Authorizing Illegal NSA Domestic Surveillance 5. Enabling John Yoo and Unchecked Presidential War Powers 6. Rendering the Geneva Conventions "Quaint" 7. Supporting Military Commissions and the End of Habeas Corpus 8. Blessing Unprecedented Expansion of Presidential Signing Statements 9. Facilitating a CIA Leak Cover-Up 10. Gutting Minority Voting Rights

    For the latest news, hearings, legal filings and other essential documents on the Bush DOJ prosecutor firings, see: "The U.S. Attorney Scandal Documents."

  • Peter Graven (unverified)
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    I was just reading Andrew McCarthy’s defense of the purging at the National Review .

    I think the main problem with the "we can fire anyone at any time" argument is the difference between politics and stated policy. If it is Bush's policy to prosecute porn (to the fullest extent of the law), that is his right. He will have to deal with the repercussions of that decision politically because he went on the record with saying he wanted to prosecute porn.

    But, the current situation is different because the firings were obviously not about a stated policy. If they were, the reason for the firing would be easy: “our policy is to prosecute porn, and Joe Mama was unable to do that in his jurisdiction, therefore we are firing him.” Instead, they were fired for unstated political reasons (presuming performance is lacking evidence). Now, they must deal with the political consequences of that decision. Considering the potential impact of unfairly prosecuting democrats during an election, some stiff political retribution is in order.

    Also note that the distinction between stated policy and unstated politics applies to Clinton as well. If Clinton fired people that would not have carried out his stated policies I think that is reasonable. If he fired them for other reasons then he, too, should suffer the political consequences.

  • (Show?)

    Stephanie has it right. The fired prosecutors appear to have been fired for being insufficiently zealous in using their offices as political tools against the Dems in the '06 election, or have prosecuted Republicans within the same timeframe. All of the rest of the talking points are spin generated by Lieber Karl and his crew of thugs.

    The logical next step is to look at the other 90 something attorneys that were not scheduled for termination and see how politically compromised they have been in carrying out their duties as federal prosecutors.

    <hr/>

    It will also be fun to see the numbers from the lopsided prosecution of Ds vs Rs. Since prosecutions were tilted at more than 5 to 1, what were the results?

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