Attorney Scandal Threatens Gonzales' Job


March 19, 2007
Legal Times
By Jason McLure and T.R. Goldman


The damage is done.

The Justice Department's top two officials gave misleading information to Congress under oath. The attorney general's chief of staff has resigned, and the job security of Attorney General Alberto Gonzales is in serious doubt.

But regardless of whether Gonzales becomes a casualty of the U.S. Attorney scandal, former Justice officials and lawmakers agree that the White House and Justice Department must restore credibility to a system that -- until now -- has managed to balance the prosecutorial independence of 93 U.S. Attorneys with their status as at-will political appointees of the president.

And that means changing the current perception that powerful political interests can shape the outcome of a federal criminal investigation.

"The greatest travesty here is that you don't want to take away the independence of the U.S. Attorney's office," says Debra Wong Yang, who until last year ran the country's second-largest U.S. Attorney's Office, in Los Angeles. "The public relies on the impartiality of their prosecutions," adds Yang, a partner at Gibson, Dunn & Crutcher. "To have it operate on anything less does a huge disservice to us as a nation."

That impartiality has been seriously undermined by the White House and Justice's shifting explanations for the dismissals. Additionally, documents released last week show that the White House, including presidential counselor Karl Rove, was heavily involved in the decisions to fire the U.S. Attorneys -- contrary to its earlier assertions that Rove had little involvement.

Two of the fired prosecutors told Congress that they'd received calls from GOP lawmakers or staff pressuring them to pursue public-corruption or election-fraud investigations in a way favorable to Republicans. And the Justice Department has not dispelled allegations that the dismissal of Carol Lam, the U.S. Attorney in San Diego, was connected to a public-corruption probe of congressional Republicans.

For one former U.S. Attorney, restoring a perception of independence is crucial.

"Something needs to happen to let U.S. Attorneys and their staffs and offices know that ... whatever direction the evidence in a case leads [is] the only thing driving cases," says former federal prosecutor James Vines, who ran Tennessee's middle district office from 2002 to 2006.

"Regardless of what the ultimate facts will show, whether Attorney General Gonzales and his staff are fully vindicated, there are certainly legitimate questions on the table with which nobody can argue," Vines says.

One result already: The department has agreed not to oppose a bill now moving through the Senate and House that would overturn a controversial law allowing the Justice Department to appoint interim U.S. Attorneys indefinitely and without Senate approval.

And it's almost certain that the department will take steps to limit contact between lawmakers and prosecutors in politically charged corruption probes.

A visibly uncomfortable Gonzales attempted to put those concerns to rest at a March 13 press conference by admitting "mistakes were made" and proclaiming: "I believe in the independence of our U.S. Attorneys."

Referencing his former chief of staff D. Kyle Sampson, who resigned one day earlier, Gonzales said he was not aware of details of Sampson's contact with the White House regarding a plan to fire U.S. Attorneys.

"I never saw documents," Gonzales said. "We never had a discussion about where things stood."

His remarks, however, did little to placate critics.

"He's failed to dispel the black cloud that's now hanging over every U.S. Attorney's Office in the United States," says John McKay, the former U.S. Attorney for the Western District of Washington and one of the group of seven prosecutors fired Dec. 7 (an eighth was fired last summer). "And that's the cloud of political influence."

Not even everyone in the administration found Gonzales' remarks persuasive.

"Does anybody believe the attorney general when he says that he wasn't aware?" says one high-ranking administration lawyer. "People who were there knew what was going on and knew what they were in for."

Indeed, Sampson's e-mails released last week show Michael Elston, chief of staff to Justice's No. 2, Paul McNulty, learned in mid-October 2006 that one goal of the firings was to take advantage of a provision in the recently reauthorized Patriot Act that allowed the department to install interim U.S. Attorneys indefinitely -- and avoid the Senate confirmation process.

(Five months later, but before the e-mail traffic had been made public, McNulty would testify that the provision "has not and will not be used to circumvent the confirmation process.")

And a detailed plan for the firings sent from Sampson to McNulty in mid-November warned the Justice Department's leadership to "prepare to withstand political upheaval."

LOYAL BUSHIES

Several of the fired U.S. Attorneys testified earlier this month that they were given no reason for their dismissal. When some called senior officials at Justice late last year to question their firings, they were told that they were being pushed aside to give others a chance at the jobs.

But in January, under oath before the Senate Judiciary Committee, Gonzales told senators he would "never, ever" ask U.S. Attorneys to step down for political reasons. Gonzales was further contradicted by the release of e-mails last week from Sampson which showed that prosecutors were judged in part on whether they were "loyal Bushies."

McNulty testified on Feb. 6 that all but one of the prosecutors were fired for "performance-related" reasons. That statement would also be contradicted by prosecutors' generally glowing performance reviews.

As of late last week, a number of congressional Democrats had called for the resignation of Gonzales, a man they say is far too close to President George W. Bush to function as the nation's chief law enforcement officer. They insist that a new leader, akin to Defense Secretary Robert Gates, who replaced ousted Defense Secretary Donald Rumsfeld, is the only solution.

"The clear example is Secretary Gates," says Sen. Edward Kennedy, D-Mass., who voted against Gonzales at his confirmation hearing in 2005.

"You need that type of quality of person, you need that sense of integrity," Kennedy added in an interview after a Senate Judiciary Committee hearing on March 15 that approved authorizing subpoenas to 11 current and former Justice Department employees related to the firings.

Republicans are more circumspect. And while a small but growing number have called for Gonzales to resign, many continue to echo the same talking points that the Justice Department has offered from the start: that U.S. Attorneys serve at the pleasure of the president, and the Clinton administration fired nearly all of them in 1993.

Clinton, like any president of a different party coming into the White House, asked for and eventually accepted the resignations of most U.S. Attorneys. Firing a select group of U.S. Attorneys halfway through a presidential tenure, however, is unprecedented in recent history.

Pennsylvania's Arlen Specter, the Senate judiciary panel's top Republican, says he believes the committee has been misled and wants Congress to investigate further. "We need to seek the reasons for asking those U.S. Attorneys to resign," he said in an interview. "Showing the justification for asking people to resign will go a long way, but it will have to stand up."

CHANGING THE MESSENGER

If Gonzales is replaced, a number of those who now favor his resignation think Bush should find an attorney general who is both outside the scandal yet has a Justice Department background.

"It should be helpful to have former career federal prosecutors at the helm," former New Mexico U.S. Attorney David Iglesias, who was among those asked to resign, says in an e-mail to Legal Times. "The current top leadership does not have this real-world perspective. They have solid political credentials, but that's not enough to run the Justice Department in a fair and just manner."

And among those who favor a Gonzales resignation, there is a consensus that Bush needs to nominate an independent figure, not another internal Bush loyalist like Gonzales, whose entire political career has shadowed that of Bush.

"There ought to be an unwritten rule that the attorney general should acquire credentials independent of the president," says Bruce Fein, a former associate deputy attorney general in the Reagan administration who has emerged as an outspoken critic of Gonzales.

Among the names mentioned by Republicans as possible replacements: Larry Thompson, the Justice Department's No. 2 from 2001 to 2003 who is now PepsiCo's top lawyer; Laurence Silberman, a senior judge on the U.S. Court of Appeals for the D.C. Circuit and a former deputy attorney general in the Ford administration; and J. Michael Luttig, a former judge on the 4th U.S. Circuit Court of Appeals and now the top lawyer at Boeing Corp.

Notably missing from the list is McNulty, who is widely seen to be too heavily involved in the current scandal to be a possible replacement.

"I have known Paul McNulty for 20 years and have the highest regard for him," says James Pasco, who runs the 325,000-member Fraternal Order of Police, one of the few labor groups to endorse Bush in 2004.

"Unfortunately, I think these events are going to have a chilling effect on his ability to succeed Gonzales, should that day come."

For whoever finishes Bush's term as attorney general, the issue will not be merely restoring credibility with an increasingly hostile Democratic Congress, but showing that the dual roles of presidential adviser and chief law enforcement officer can be juggled. That, says Janet Reno, means having to tell the White House "no" on occasion.

"You tell the president what you think is the right thing to do and then you pursue it," says Reno, the attorney general during the entire Clinton administration. "If he has arguments which overcome it and persuade you you are wrong, then you agree with him.

"If he doesn't persuade you, and it goes to the independence of the U.S. Attorney, then you tell the president you're going home."


National Association of Criminal Defense Lawyers (NACDL)
1660 L St., NW, 12th Floor, Washington, DC 20036
(202) 872-8600 • Fax (202) 872-8690 • assist@nacdl.org