The U.S. Attorney Scandal, in a Nutshell (Upshot -- It's Actually A "Voter Fraud" Scandal)

Marty Lederman

Dan Eggen and Amy Goldstein of the Post summarize what has become increasingly evident. To simplify -- but not by much -- this is the story:

1. There is little, if any, reliable evidence of any serious problem of voter fraud in the United States.

2. After the 2000 election, if not before, Karl Rove and other Republican operatives decided that Republican political prospects would be immeasurably improved if they would only repeat, as often as possible, the unsupported claim that voter fraud is rampant, and take substantial steps to stem such nonexistent voter "fraud" -- all in an attempt to suppress Democratic votes.

3. The bogus claim of a "voter fraud" crisis has been successfully invoked in many states to withstand initiatives to ease voter registration and, even more prominently, to justify unneeded and damaging "Voter ID" legislation. All of which has the effect of suppressing votes, primarily of Democratic constituencies, while doing very little, if anything, to protect against any actual voter fraud. (See, e.g., the links in the middle of this post to the New York Times, Bob Bauer, hilzoy, Rick Hasen and publius.)

[UPDATE: In response to some commenters, especially those over at the Volokh Conspiracy: My argument here obviously does not depend on the extreme and untenable assertion that there is absolutely no such thing as voter fraud, ever, anywhere in the United States. I'm sure that there are some isolated cases, and will be as long as humans are fallible. The point, instead, is simply that there is virtually no evidence of any systemic or new problem of voter fraud that would justify what the Republican operatives have done in recent years.

So, for example, state defendants in high-profile cases attempting to defend voter ID laws predicated on "fraud" (e.g., in Arizona and Missouri) have not been able to adduce any evidence of systemic fraud -- and very little anecdotal evidence, for that matter. Moreover, the May 2006 "status report" of the Election Assistance Commission, written by bipartisan consultants, concluded that there is widespread agreement "that there is little polling place fraud, or at least much less than claimed, including voter impersonation, 'dead' voters, noncitizen voting and felon voters."

Therefore it is quite obvious, I think, that what has prompted Republican officials and operatives since 2000 to systematically (i) push for Voter ID laws; (ii) oppose registration and other enfranchisement reforms; and now (iii) pressure U.S. Attorneys to bring voter-fraud prosecutions, has not been any upswing in actual fraud, but has instead been the realization that the spectre of a widespread "voter fraud" crisis could effectively change the legal landscape in ways that systematically disenfranchise Democratic voters and thus redound to the benefit of Republican electoral prospects.

I am not claiming that every one of the fraud prosecutions that Rove and Co. were pushing were nonmeritorious -- even a stopped watch is correct twice a day. But they were pushing such prosecutions (i) in closely contested states; (ii) close to election time; and (iii) fairly indiscriminately. So, for example, even David Iglesias, who was one of only two United States attorneys in the country to create a voter-fraud task force in 2004, has written of the prosecutions that he was urged to bring:

What the critics, who don’t have any experience as prosecutors, have asserted is reprehensible—namely that I should have proceeded without having proof beyond a reasonable doubt. The public has a right to believe that prosecution decisions are made on legal, not political, grounds. . . .

After reviewing more than 100 complaints of voter fraud, I felt there was one possible case that should be prosecuted federally. I worked with the F.B.I. and the Justice Department’s public integrity section. As much as I wanted to prosecute the case, I could not overcome evidentiary problems. The Justice Department and the F.B.I. did not disagree with my decision in the end not to prosecute.]

4. Karl Rove and others went further: They decided to use the levers of federal governmental power -- the prosecution power, in particular -- to go after nonexistent voter fraud, and thereby to further suppress voter turn-out in closely contested elections, all in order to enhance Republican electoral prospects. (Simultaneously, other sorts of decisions at DOJ (e.g., pursuant to the Voting Rights Act) were also substantially influenced by partisan electoral considerations.)

5. Until this Administration, White House officials such as Rove would not have been permitted to contact persons in the Justice Department in connection with prosecutorial decisions. But those rules were rescinded by the Bush Justice Department.

6. Rove and other White House officials urged DOJ to bring "voter fraud" prosecutions in many contested states and districts -- and even to do so close to the date of elections, contrary to longstanding DOJ policies.

7. Some U.S. Attorneys -- loyal Republicans all -- after concluding that there was, after all, no basis in fact for bringing such prosecutions, especially not so close to elections, when such prosecutions could have an unwarranted impact on election outcomes, understandably declined to prosecute.

8. The President unceremoniously removed many of those U.S. Attorneys -- not because anyone at DOJ thought they were doing a bad job (everyone of note in DOJ has disclaimed responsibility for having identified these officials for removal), but instead because Rove and his operatives in the White House were frustrated at the prosecutors' unwillingness to bring unwarranted voter-fraud prosecutions. (Other U.S. Attorneys were cashiered for analogous partisan electorial reasons, such as their refusal to bring charges against local Democratic officials, or their peristence in investigating Republican officials.)

9. In order to further ensure that the White House has much greater, unfettered, influence over the machinations of the criminal justice system, the Attorney General determined that personnel decisions at DOJ would no longer be subject to the institutional and professional screens that had long been in place, but would instead be delegated almost entirely to undistinguished, inexperienced young attorneys whose only qualification for being assigned that important responsibility was that they were loyal Republican foot soldiers, unequivocally responsive to the direction of Rove, et al.

10. The attempts by government officials to bring pressure on U.S. Attorneys to bring prosecutions -- or to forego ongoing investigations -- for partisan electoral objectives may well have constituted criminal violations of 18 U.S.C. 1505 ("Whoever corruptly . . . influences, obstructs, or impedes or endeavors to influence, obstruct, or impede the due and proper administration of the law under which any pending proceeding is being had before any department or agency of the United States, . . . Shall be fined under this title, imprisoned not more than 5 years"); and/or 18 U.S.C. 1512(c)(2) ("Whoever corruptly . . . obstructs, influences, or impedes any official proceeding, or attempts to do so, shall be fined under this title or imprisoned not more than 20 years, or both.").

At the very least -- and more significantly -- such efforts constituted a breach of the President's constitutional obligation to "take Care that the Laws be faithfully executed."

* * * *

For the most part, the media have understandably been focused thus far on Point No. 8. But the real heart of the scandal -- the much more important long-term outrage -- is Point No. 4, the abuse of governmental authority for partisan ends.
Posted 5:34 AM by Marty Lederman [link]