Green Light for Jacking and Stacking the Justice Department

Scott Horton summarizes the recent Inspector General/Office of Professional Responsibility report on the US Attorney firings in his No Comment blog in Harper's:

Internal Justice Department Probe Suggests Political Manipulation of Prosecutions, Obstruction

by Scott Horton

[originally published September 29, 2008 in Harper's]

Today the Justice Department’s Inspector General and Office of Professional Responsibility jointly issued a complex, detailed report investigating the dismissal of nine U.S. Attorneys in December 2006. The “process used to remove the nine U.S. Attorneys in 2006,” they wrote,

was fundamentally flawed. While Presidential appointees can be removed for any reason or for no reason, as long as it is not an illegal or improper reason, Department officials publicly justified the removals as the result of an evaluation that sought to replace underperforming U.S. Attorneys.

In fact, we determined that the process implemented largely by Kyle Sampson, Chief of Staff to the Attorney General, was unsystematic and arbitrary. We believe the primary responsibility for these serious failures rest with senior Department leaders—Attorney General Alberto Gonzales and Deputy Attorney General Paul McNulty—who abdicated their responsibility to adequately oversee the process and to ensure that the reasons for removal of each U.S. Attorney were supportable and not improper. These removals were not a minor personnel matter—they were an unprecedented removal of a group of high-level Department officials that was certain to raise concerns if not handled properly… We also concluded that Sampson bears significant responsibility for the flawed and arbitrary removal process.

The report raises very severe doubt about the accuracy, completeness and reliability of Kyle Sampson’s representations to investigators–many of which appear absurd. Sampson, known as Karl Rove’s “Mini Me,” was placed within the Justice Department as the White House’s implementer; Gonzales and McNulty appreciated that he was doing the White House’s–and specifically Karl Rove’s–bidding. And once again the Inspector General’s effort reflects remarkable skill in its presentation. Facts are cautiously presented in a fair-minded way, and there is a good deal of reserve about assessing those facts until the conclusion. However, even upon my first reading I was amazed by the great volume of information available in the public record that the Inspector General simply missed; much of that information has immediate relevance to the questions the Inspector General is examining and would tend to discredit many of the statements that were collected.

In particular, there is little consideration of facts in the cases in the San Diego and Los Angeles U.S. Attorneys offices, and the facts arising out of the New Mexico case are incomplete. All this excluded information suggests that prosecutions were manipulated for improper purposes, a conclusion that this report strains–at times absurdly–to avoid. The best way to describe this report, and the description that the Inspector General himself applies, is “incomplete.” In fact, though submitted twenty-two months after the deed, the report is little more than a start.

The report is incomplete because a number of persons—members of Congress, their staffers, and particularly figures in the White House—refused to cooperate with the investigation. At the top of this list are Karl Rove and Harriet Miers. The White House and several Republican lawmakers also failed to provide investigators with documents, including documents which all acknowledge are highly relevant and are not privileged in any way. It is a fair inference in such circumstances that these documents would be harmful and that this is the reason why they have been withheld. So the first lesson to be drawn from the report is a simple one: Obstruction continues to be the order of the day. Particularly in light of this fact, Attorney General Mukasey’s statement issued in connection with the publication of the report is worth noting:

The Offices of the Inspector General and Professional Responsibility dispelled many of the most disturbing allegations made in the wake of the removals.

This statement is simply wishful thinking and reflects predictable political biases. To his credit, the Inspector General is careful in noting that without access to statements from White House personnel and lawmakers, and access to their withheld documents, he is not in a position to refute the most troubling accusations. These are accusations, for which the report presents considerable evidence, that the White House drove the firings for improper partisan political purposes. In fact, the report clearly establishes that while seemingly valid arguments for firings were mouthed, they were never treated with any seriousness. It also makes clear that improper efforts to wield the powers of prosecution to manipulate federal elections were commonplace and that the White House had its hand firmly on the prosecutorial rudder throughout this process. Mukasey’s brush-off can easily be read as a green light to prosecutors around the country to continue with just these abusive criminal practices–and indeed improper prosecutions have continued unabated on Mukasey’s watch.

Similarly, Mukasey’s appointment of a special prosecutor to handle the open threads of the investigation raised widespread criticism on Capitol Hill, with good reason. Mukasey could, using available Justice Department precedent and authority, have drawn upon a special prosecutor with suitable stature and experience to handle the matter. It could have been a retired federal judge or former federal prosecutor known for integrity and independence. However, Mukasey tapped a relatively inexperienced and youthful career prosecutor from Connecticut.

Mukasey’s pick may well handle the matter with ability, but the choice sends a clear signal that Mukasey does not appreciate the gravity and importance of the issues raised. Moreover, it seems reasonably clear at this point that Mukasey’s prime objective in this maneuver is to ensure that the matter is swept under the rug until after the November 4 election, so that those responsible for trashing the traditions and integrity of the Department of Justice will suffer no political damage for their misdeeds. This is a disappointing, but at this point hardly surprising, development that favors White House stonewalling. Michael Mukasey has emerged as just the sort of Attorney General George W. Bush was hoping for.