The Misplaced Focus on Gonzales

Marty Lederman

In today's Washington Post, the Attorney General writes:

I know that I did not -- and would not -- ask for the resignation of any U.S. attorney for an improper reason. Furthermore, I have no basis to believe that anyone involved in this process sought the removal of a U.S. attorney for an improper reason.

I believe the first assertion. I don't think that Gonzales himself did recommend the removal of any U.S. Attorney for an improper reason. [UPDATE: Thanks to Paul Kiel for posting Gonzales's forthcoming opening statement.]

I also don't think he acted for any proper reasons, either. It is increasingly plain that he didn't act for much of a reason at all, other than that he was presented with a list of names that had already been cleared with Karl Rove and Harriet Miers. His previous statements that he was more-or-less out of the loop, in other words, are likely to be basically accurate. He didn't fundamentally mislead Congress. His role in this imbroglio was as the rubber-stamper. He writes:

To be clear: I directed my then-deputy chief of staff, Kyle Sampson, to initiate this process; fully knew that it was occurring; and approved the final recommendations. Sampson periodically updated me on the review. As I recall, his updates were brief, relatively few in number and focused primarily on the review process. During those conversations, to my knowledge, I did not make decisions about who should or should not be asked to resign.

That sounds very plausible to me. And in fact, that sort of delegation of responsibility wouldn't have been such an unusual or terrible thing, either, if the process had actually been designed to identify appointees who were doing a less-than-acceptable job and if at the end of the process the Attorney General had carefully reviewed the pros and cons for each removal before making his recommendations to the President.

But it wasn't, and he didn't.

NPR reports that "[a]ccording to someone who's had conversations with White House officials, the plan to fire all 93 U.S. attorneys originated with political adviser Karl Rove. It was seen as a way to get political cover for firing the small number of U.S. attorneys the White House actually wanted to get rid of." (Recall that as early as January 6, 2005, Rove stopped by the White House Counsel's office to ask whether they were going to go with the "ask all to resign and retain some" option. See the Newman e-mail to Leitch.)

In other words, this was a White House -- not a DOJ -- initiative, and its function was to remove U.S. Attorneys who were not acceptable to the President and his advisers. It makes sense, in that light, that Kyle Sampson would work closely with the White House on the process, and that the Attorney General would be inclined to go along with the White House's final decisions if he were satsified that there was a solid basis for them. So far, so good -- and it wouldn't be terribly out of the ordinary, either, except that it's increasingly clear that this was part of a much more extensive Rovian White House operation to use the mechanisms of government to skew elections to Republicans.

(The biggest part of that scandal, by the way, is not the dismissals of the U.S. Attorneys, or the use of RNC accounts for White House e-mails (and the "deletion" thereof), or even the groundless prosecution of Democratic officials on basically no evidence at all, such as Georgia Thompson in Wisconsin (where a panel of the U.S. Court of Appeals that included Frank Easterbrook summarily reversed the conviction mere hours after an oral argument in which the government was unable to provide a shred of justification for the prosecution). It is, instead, the elaborate fiction of widespread "voter fraud," which has not only been the predicate for the enactment of numerous disenfranchising voter ID laws, and the pretext for stopping much-needed voter-registration reforms, but has also resulted in in terrorem prosecutions by the Department of Justice on trivial or trumped-up charges. The two NYTimes stories linked above are absolute must reading -- as are Bob Bauer's post here and Hilzoy's series of posts over at Obsidian Wings, such as here, here, and here. See also "publius" here. As Rick Hasen writes, "Together, these two reports show that despite tremendous efforts by the DOJ and others to ferret out instances of voter fraud taking place at polling places (as opposed to, for example, vote buying occurring with absentee ballots), there is very little evidence at this point. It is now incumbent upon those who still believe a great deal of voter fraud is taking place at the polls to come forward with a plan with sound methodology to show that such fraud is occurring on any kind of scale that would justify efforts such as the new recent onerous voter identification laws that have been put in place by some legislatures. But some who raise the fraud arguments do not appear to have an interest in relying on more than anecdote. The stories show the unfortunate politicization of election administration reform efforts in recent years.")

Others (especially the indefatigable Josh Marshall and crew over at TPM) have thoroughly canvassed the evidence of improper motivation in cases such as Carol Lam and David Iglesias. Two other things from Kyle Sampson's testimony, however, have not gotten the attention they deserve.

First was Sampson's suggestion, to Harriet Miers and her Deputy Bill Kelley, that Pat Fitzgerald be added to the list of U.S. Attorneys to be considered for removal. Fitzgerald, of course, is widely viewed as one of the most stellar U.S. Attorneys of his generation. Sampson himself testified that "Pat Fitzgerald is widely viewed within the Department of Justice as being a very strong U.S. attorney. He's a strong manager. He's a skillful lawyer and is, by all accounts, a very strong United States Attorney." So what possibly could have motivated Sampson to suggest to Miers and Kelley that Fitzagerald be removed? That's what Senator Durbin wanted to know:

DURBIN: Why did you say it? Why did you recommend, or at least suggest, that [Fitzgerald] be removed as U.S. attorney?

SAMPSON: I'm not sure. I think -- I don't remember. I think it was, maybe, to get a reaction from them.

"To get a reaction from them." Yeah, right. If that were Sampson's motivation, it would demonstrate that he had the maturity of a 10-year-old. But of course that's hardly a plausible excuse. The only reason it would ever have occurred to Sampson that he could raise with Miers the possibility of removing Fitzgerald was that it was understood in the White House (and by Sampson) that the very nature of the project was to remove those U.S. Attorneys who were proving to be a thorn in the side of the Administration (or who were not playing ball with the trumped-up "voter fraud" initiative). Truthfully, I can think of no other explanation. (It's akin to why Iglesias was magically added to the list hot on the heels of Senator Domenici's phone calls to the White House.)

The second thing that warrants more emphasis is that, unless I missed something in his testimony, it was Sampson's account that the documentation for this process consisted of a fluctuating list of names that he personally kept in his desk drawer. Just a simple list of names. No documentation. No files. No memos from those in the know carefully evaluating the strengths and weaknesses of the U.S. Attorneys. No statistics. No explanations from the U.S. Attorneys for the conduct that allegedly got them in hot water. Nothing. And if this was so -- if there were no significant files on this matter within the Department of Justice, despite over a year of discussions -- it gets to the real problem with Gonzales's role here: He recommended that the President remove eight high-ranking officials of the Department of Justice without seriously reviewing the evidence, the justifications, for such a serious course of action. Recall Gonzales's previous statement: "[I] was not involved in seeing any memos, was not involved in any discussions about what was going on. . . . Many decisions are delegated. . . . I never saw documents." (Similar is today's Op-Ed: "[Sampson's] updates were brief, relatively few in number and focused primarily on the review process. During those conversations, to my knowledge, I did not make decisions about who should or should not be asked to resign.")

He simply took Sampson's word for it, because he was confident that Sampson's unadorned list reflected Rove's and Miers's wishes. There's possibly some truth to his statement in today's Op-Ed that he has "no basis to believe that anyone involved in this process sought the removal of a U.S. attorney for an improper reason." And that's because he never insisted upon learning the basis. From what we know thus far -- and perhaps his testimony will fill in the details -- Gonzales didn't know exactly why he was recommending that these U.S. Attorneys be fired -- indeed, he was much better off not knowing. [UPDATE from his written statement: "I did so because I understood that the recommendations represented the consensus of senior Justice Department officials most knowledgeable about the performance of all 93 U.S. Attorneys."] And it's that abdication of oversight and responsibility at the time of the final recommendation -- that willful blindness -- that is most troubling about Gonzales's conduct.

And that's where the focus of Tuesday's hearing ought to be, it seems to me -- on that and on the question of why Gonzales assigned so much important responsibility, throughout the Department, to young attorneys with no experience and even less judgment. As I wrote previously:

[T]he Attorney General delegated this very serious, unusual and sensitive function -- deciding to recommend that the President remove several U.S. Attorneys -- to an aide in his mid-30's who had virtually no experience or knowledge of institutional norms, and even less practical or political judgment, and . . . the Attorney General himself forwarded such recommendations on to the President without even bothering to check the evidence with respect to whether these U.S. Attorneys had done such a bad job in office as to justify the solemn step of firing them in midstream, i.e., without even knowing whether the removals would be justified or wise. If this were the true story, it would demonstrate atrocious judgment on the part of the Attorney General, and would be much more troubling than the fact that he dissembled a bit in a press conference about the level of his own involvement.

Nevertheless, the real action on the "merits" was not at DOJ, but in the White House, where the process was initiated by Karl Rove and where the final decision was made by the President. Thus, the current focus on the Attorney General is something of a distraction, at least insofar as Congress's objective is to determine whether anything unlawful or unconstitutional was involved in the U.S. Attorney dismissals. Congress cannot determine whether the removals were made for improper reasons unless it discovers what Rove and Miers advised the President, and why they did so. But the evidence that would bear on that is precisely the sorts of internal White House deliberations that Fred Fielding would put off-limits to Congress -- or that have magically disappeared from RNC databases.
Posted 4:49 AM by Marty Lederman [link]