Legal Schnauzer: U.S. Attorney Firings Report "A Farce;" Scott Horton: "Audacious Whitewash At DOJ"

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http://legalschnauzer.blogspot.com/2010/07/report-on-us-attorney-firings-reads.html

FRIDAY, JULY 23, 2010
Report on U.S. Attorney Firings Reads Like a Farce

After reading this week's report on the U.S. attorney firings during the Bush administration, I immediately checked the calendar to see if it was April Fool's Day.

The report, in the form of a letter from Justice Department official Robert Welch to Judiciary Chairman John Conyers (D-MI), found that no criminal charges were warranted against Bush administration officials for the firings of nine U.S. attorneys.

A person who has tried to stay reasonably informed about the scandal is likely to read the report and say, "Is this a joke? Is it meant to be taken seriously?" The report, of course, is about matters of utmost seriousness. That should raise profound questions about the motivations and competence of the Barack Obama administration, especially Attorney General Eric Holder.

Scott Horton, legal affairs contributor for Harper's magazine, does not mince words about the report, which focused heavily on Bush-era attorney general Alberto Gonzalez. Horton calls the report a whitewash. Writes Horton:

The DOJ criminal review didn’t exonerate Gonzales and his team–far from it. The Justice Department’s letter to the Judiciary Committee explained that they clearly engaged in improper conduct, but it focused on an absence of clear-cut evidence that would make out a criminal case. That’s curious. In a series of high-profile public-integrity prosecutions brought by the Bush Justice Department–those against Alabama Governor Don Siegelman, Mississippi attorney Paul Minor, and Georgia Senate Minority Leader Charles Walker, for instance–prosecutors also acknowledged they lacked the direct evidence to make out their case in full. But they said the facts were enough to allow jurors to decide for themselves, based on inference, whether corrupt motives were in play. When the tables are turned on the Bush Justice officials who drove those very decisions, we discover that the evidentiary bar has been dramatically raised.

Want to get heavily into "theater of the absurd"? Check out the full six-page letter that outlined the findings. Possible criminal charges in the case included obstruction of justice (18 U.S. Code 1503), theft of honest services (18 U.S. Code 1346), and false statements (18 U.S. Code 1001). Here are a few lowlights:

* Pressure is bad, firing is fine--On obstruction of justice, Dannehy found that the statute penalizes only forward-looking conduct that endeavors to "influence, obstruct, or impede." According to Dannehy, firing someone does not amount to an effort to impede their work. As Dave Barry would say, "I'm not making this up!" Here are actual words from the report:

There was insufficient evidence that former Senator Pete V. Domenici, other New Mexico Republicans, persons in the White House, or anyone at DOJ attempted to prospectively influence Iglesias's actions. The weight of the evidence established not an attempt to influence but rather an attempt to remove David Iglesias from office, in other words, to eliminate the possibility of any future action or inaction by him.

If you can read that without spewing water across the room, you have a stronger constitution than I do. Nora Dannehy actually determined that an effort "to eliminate the possibility of any future action or inaction" by David Iglesias was not an impediment to his work.

* A Dishonest Take On Honest Services--On theft of honest services, Dannehy found the effort to remove Iglesias from office was not "a scheme to get him to use his Office in return for anything of value, including his continued employment." Unfortunately, that's not what the statutory or case law on honest-services fraud says. We summed up the actual law in an earlier post titled "Mail Fraud: A Primer." Here is a key segment:

What about the "honest services" component included under Sec. 1346? Courts have stated that a public official has a duty to disclose information regarding a personal interest that may affect his judgment and therefore "undisclosed, biased decision making . . . regardless of tangible loss to the public . . . constitutes a deprivation of honest services." U.S. v.Lopez-Lukis, 102 F.3d 1164, (1997)

Did Bush officials exhibit undisclosed, biased decision-making in taking out David Iglesias? Considering that Dannehy admits their motivations were political, the answer obviously is yes.

Also, Dannehy found the following:

Additionally, honest services fraud does not embrace allegations that purely political interests may have influenced a public official's performance of his duty.

Where does Dannehy come up with this? It's impossible to say because the letter does not offer a citation to case law. Based on our research of honest-services fraud, that's probably because no such citation exists.

* "Inaccurate" and "Misleading" Do Not Equal "False"--Dannehy says the statute requires that statements "actually be false." Dannehy's report acknowledges that former Attorney General Alberto Gonzalez made statements to Congress and DOJ investigators that were "inaccurate and misleading." But get this conclusion from the report:

Based on a consideration of all the evidence and the legal standards, Ms. Dannehy concluded that there was insufficient evidence to establish that persons knowingly made material false statements to OIG/OPR or Congress or corruptly endeavored to obstruct justice.

Now let's use just a tad of common sense. Certainly a person can make an inaccurate statement that is innocent--he simply is mistaken about something. But Dannehy admits Gonzalez' statements were not just inaccurate; they were misleading. And that indicates the statements were made with intent. How can you unintentionally mislead someone? Answer: You can't. That means Gonzalez' statements were knowingly false --and that clearly is a criminal act under the statute.

What does it all mean? The emptywheel blog at firedoglake puts the report in disturbing perspective:

I don’t think anyone would have predicted the cavalier way in which Holder’s DOJ reaches its seemingly predetermined decision, while providing a roadmap to other legislators who’d also like to get a prosecutor fired for political convenience. Dannehy and Holder explain to Members of Congress – if a Federal prosecutor isn’t filing or refraining from filing the cases you want, feel free to covertly conspire to get him fired. As long as you don’t make any misguided attempt to “influence” him before you get him fired, you’re good to go. Oh, and btw, phone calls to him at home to fume over his handling – not to worry, those doesn’t count as an attempt to influence.

MODS: Reproduced in Entirety w/ Permission of Author


http://www.harpers.org/archive/2010/07/hbc-90007431

July 22, 11:01 AM, 2010 · No Comment

Another Audacious Whitewash at DOJ
By Scott Horton

The Associated Press reports that the Justice Department’s two-year-long internal criminal probe into the U.S. attorney’s scandal has closed without bringing criminal charges. As usual, the Department waits for the dog days to deliver its report, hoping no one will pay it any attention.

The Bush Administration’s Justice Department’s actions were inappropriately political, but not criminal, when it fired a U.S. attorney in 2006, prosecutors said Wednesday in closing a two-year investigation without filing charges. The decision closes the books on one of the lingering political disputes of the Bush Administration, one that Democrats said was evidence of GOP politics run amok and that Republicans have always said was a manufactured controversy. Investigators looked into whether the Bush Administration improperly dismissed nine U.S. attorneys, and in particular New Mexico U.S. Attorney David Iglesias, as a way to influence criminal cases. The scandal added to mounting criticism that the administration had politicized the Justice Department, a charge that contributed to the resignation of Attorney General Alberto Gonzales.

It wasn’t just Gonzales, actually: the scandal forced the resignation-under-a-cloud of the top four figures in the Department. Now they can all sleep safely, and Gonzales may even be able to get a job practicing as an attorney again.

- snip -

The investigation was also marked by a process of blindering, driven by the Justice Department itself, but without any apparent pushback from Nora Dannehy, the Bush-appointed U.S. attorney in Connecticut tapped by Attorney General Mukasey to handle the probe. Rather than look at the entire U.S. attorneys scandal, Dannehy settled on a probe of a single case: that involving New Mexico U.S. Attorney David Iglesias. This is the one case in which the available evidence showed that the decision was taken by President Bush himself, in the White House. The cast of characters included Karl Rove, New Mexico Senator Pete Domenici, and New Mexico Congresswoman Heather Wilson. Executive privilege was invoked to block any meaningful investigation of what happened inside the White House, and a number of Bush officials declined to cooperate with the investigation, which explains why Dannehy could not find “sufficient evidence.”

- snip -

Nora Dannehy’s decision to take no action, coupled with all the lame rationalizations of inaction that preceded it, is another self-administered bullet wound to the integrity of the Justice Department. It makes clear that the Department has a well-honed double standard. There is one standard applied by the Department’s Public Integrity Section to political figures of the party out of power (whether Democrats or Republicans, doesn’t really matter). Minor indiscretions and fundraising gaffes will be prosecuted as crimes, usually under the “honest-services fraud” statute, using standards that three Supreme Court justices recently ridiculed as lacking any intellectual or political integrity. Conduct by Justice Department political appointees that is comparable or still worse, however, will simply be fluffed off—sometimes after lengthy internal probes designed to create the appearance that the Department takes the matter seriously. How can a Justice Department hold its own personnel to a lower standard under the law than they hold other public officials? This is a formula for disaster. Dannehy’s decision not to proceed is an open invitation to future administrations: the White House is free to manipulate the Department for political purposes, and Justice Department officials are free to lie to Congress.

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