an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Who refused to be interviewed by the Inspector General? Karl Rove, Harriet Miers, former Deputy White House Counsel (and current Notre Dame law professor) William Kelley , Associate WH Counsel Richard Klingler, Senators Kit Bond and Pete Domenici, and Domenici's chief of staff. Is there any apparent justification for their refusals? No. And the White House refused to provide internal e-mails and documents, even though it conceded that there is no claim of executive privilege here. The Administration also refused to give the IG a memorandum about the scandal prepared by Associate Counsel Michael Scudder, even though the memorandum has been provided to OLC. (The Counsel's office eventually provided a redacted version that the IG calls "worthless.") The White House Counsel's office wrote in explanation that "we viewed the situation as in some sense analogous to civil discovery efforts to obtain an opponent's attorney work-product material." The Counsel's Office, in other words, views the investigating components of the Justice Department as analogous to "opponents" in civil litigation.
The Counsel's Office also wrote that "[o]ur disclosure was necessarily partial because, in our judgment, total, unqualified disclosure of all factual portions of the entire draft chronology would have an adverse impact on the effective provision of legal advice within the White House. That impact, as we perceived it, was not outweighed by OIG/OPR's need for the undisclosed information, at least to the extent we understood that need as articulated in our discussions with your office."
Of course, to the extent the draft chronology does not reflect any unlawful conduct, its disclosure would be unlikely to have any chilling effect on legitimate White House communications, and would assist the IG and OPR in understanding what happened here. And to the extent the chronology reveals unlawful conduct, there is no justification for the White House to keep such evidence secret in the first place. Not surprisingly, then, the IG and OPR do not agree with the rationales for the White House's refusals, which they conclude "hindered" their investigation.
The basic thrust of the Report, as I understand it, is that Kyle Sampson was acting in cahoots with the White House Counsel's Office to fire disfavored U.S. Attorneys -- at least some for possibly impermissible reasons -- and that AG Gonzales and others at DOJ therefore left the entire project up to Sampson, stepping in merely to rubberstamp whatever decisions he reached in accord with the Counsel's Office.
Important findings include:
[T]he statements provided by the Attorney General and other Department officials about the reasons for the removals were inconsistent, misleading, and inaccurate in many respects.
The most serious allegations that arose were that the U.S. Attorneys were removed based on improper political factors, including to affect the way they handled certain voter fraud or public corruption investigations and prosecutions. Our investigation found significant evidence that political partisan considerations were an important factor in the removal of several of the U.S. Attorneys. The most troubling example was David Iglesias, the U.S. Attorney in New Mexico. We concluded that complaints from New Mexico Republican politicians and party activists about Iglesias’s handling of voter fraud and public corruption cases caused his removal, and that the Department removed Iglesias without any inquiry into his handling of the cases.
However, we were unable to fully develop the facts regarding the removal of Iglesias and several other U.S. Attorneys because of the refusal by certain key witnesses to be interviewed by us, as well as by the White House’s decision not to provide internal White House documents to us. Therefore, we recommend that counsel specially appointed by the Attorney General work with us to conduct further investigation and ultimately to determine whether the totality of the evidence demonstrates that any criminal offense was committed.
* * * *
Gonzales acknowledged to us that he did not discuss with Sampson how to evaluate the U.S. Attorneys or which factors to consider. We found that Gonzales eventually approved the removals of a group of U.S. Attorneys without inquiring about the process Sampson used to select them for removal, or why each name was on Sampson’s removal list. Gonzales also did not know who Sampson had consulted with or what these individuals had said about each of the U.S. Attorneys identified for removal. Instead, Gonzales told us he “assumed” that Sampson engaged in an evaluation process, that the resulting recommendations were based on performance, and that the recommendations reflected the consensus of senior managers in the Department. Each of those assumptions was faulty.
Gonzales also said he had little recollection of being briefed about Sampson’s review process as it progressed over a year and a half. He claimed to us and to Congress an extraordinary lack of recollection about the entire removal process. In his most remarkable claim, he testified that he did not remember the meeting in his conference room on November 27, 2006, when the plan was finalized and he approved the removals of the U.S. Attorneys, even though this important meeting occurred only a few months prior to his testimony.
This was not a minor personnel matter that should have been hard to remember. Rather, it related to an unprecedented removal of a group of high level Presidential appointees, which Sampson and others recognized would result in significant controversy. Nonetheless, Gonzales conceded that he exercised virtually no oversight of the project, and his claim to have very little recollection of his role in the process is extraordinary and difficult to accept.
We also found that Deputy Attorney General McNulty had little involvement in or oversight of the removal process, despite his role as the immediate supervisor of all U.S. Attorneys. McNulty was not even made aware of the removal plan until the fall of 2006. When McNulty learned about the plan, he thought it was a bad idea. However, he deferred to Sampson and did not raise his concerns with regard to the plan itself or, except in a couple of cases, the evaluation of specific U.S. Attorneys to be removed. Rather, he distanced himself from the project, both while it was ongoing and after it was implemented.
Moreover, we found that there was virtually no communication between Attorney General Gonzales and Deputy Attorney General McNulty about this important matter. Even when McNulty learned about the plan in the fall of 2006 (more than a year after Gonzales and Sampson initiated the removal process), he did not discuss any of his concerns about the plan with Sampson or Gonzales.
We found no evidence that Gonzales, McNulty, or anyone else in the Department carefully evaluated the basis for each U.S. Attorney’s removal or attempted to ensure that there were no improper political reasons for the removals.
Sampson was primarily responsible for creating the plan, selecting the U.S. Attorneys to be removed, and implementing the plan. He said he consulted with Department officials in informal settings to get their “frank assessments” of U.S. Attorneys, and Sampson described himself as the “aggregator” of their views. Sampson also testified that he had “no independent basis” for removing any U.S. Attorney and that he relied on other Department officials, such as McNulty, Executive Office for U.S. Attorneys (EOUSA) Directors Mary Beth Buchanan and Michael Battle, and Associate Deputy Attorney General David Margolis to make recommendations about who should be removed. He said, “[i]n my mind, they were the Department officials who would have reason to make informed judgments about who might be added to such a list.”
This claim was misleading. Neither Sampson nor anyone else in the Department ever engaged in a systematic assessment of the performance of U.S. Attorneys to determine who was underperforming and should be replaced.
Instead, Sampson’s evaluation process was casual, ad hoc, and anecdotal, and he did not develop any consensus from Department officials about which U.S. Attorneys should be removed.
* * * *
We believe that senior Department officials – particularly the Attorney General and the Deputy Attorney – abdicated their responsibility to safeguard the integrity and independence of the Department by failing to ensure that the removal of U.S. Attorneys was not based on improper political considerations.
* * * *
[W]e found evidence that complaints to Rove and others at the White House and the Department by New Mexico Republican political officials and party activists about how Iglesias was handling voter fraud cases and a public corruption case led to Iglesias’s removal.
* * * *
We recommend that a counsel specially appointed by the Attorney General assess the facts we have uncovered, work with us to conduct further investigation, and ultimately determine whether the evidence demonstrates that any criminal offense was committed with regard to the removal of Iglesias or any other U.S. Attorney, or the testimony of any witness related to the U.S. Attorney removals.
The Department’s removal of the U.S. Attorneys and the controversy it created severely damaged the credibility of the Department and raised doubts about the integrity of Department prosecutive decisions. We believe that this investigation, and final resolution of the issues raised in this report, can help restore confidence in the Department by fully describing the serious failures in the process used to remove the U.S. Attorneys and by providing lessons for the Department in how to avoid such failures in the future.
Since when is Department of Justice an independent agency?
Oh, it's not. It's a wholly owend subsidiary of the BFF crime family. But it should be "independent". Otherwise the distinction between the top law enforcement officer of the Unisted States and a consigliere is so small as to be indistinguisable under anything other than an electron microscope.
It sounds like the IG did a very thorough and professional investigation. Frankly, however, the IG’s findings (at least the ones you quote, I haven’t read the report) are pretty much what was obvious before the investigation began. (BTW, I assume that the reason the IG made no mention of the claim that Carol Lam was fired to forestall an investigation of Congressman Lewis is that the evidence clearly shows that this had nothing to do with her firing).
The only real issue seems to be with respect to Iglesias’ firing. It seems clear that he was replaced because of complaints from NM Republicans about his handling of politically sensitive cases. Therefore, those who were involved in the firing must have been motivated by some combination of the following: (1) a desire to placate political allies of the Administration, (2) a belief that Iglesias’s failure to pursue these cases demonstrated lack of political loyalty or (3) a belief that replacing Iglesias would make it more likely that these cases or these types of cases would be pursued in the future. (It is theoretically possible that they believed that Iglesias showed a lack of professional competence, but there is no indication of the type of due diligence that one would expect if this was a genuine concern). Any of these motivations can be fairly characterized as improper or inappropriate, but I don’t see how any of them can make his firing illegal or criminal.
If the Administration had ordered Iglesias to bring cases without legal basis, then there would be a serious issue of abuse of power. But there is no suggestion that anything like that happened. In the first place, Iglesias himself believed that there was a legal basis for the corruption cases that were apparently the proximate cause of his termination—he simply disagreed with the NM Republicans that these cases should be brought immediately. Moreover, it does not appear that anyone in the Administration ordered him to bring the cases or threatened him with retaliation if he failed to do so. There is no evidence that the NM Republicans tried to get the Administration to pressure Iglesias to bring any case. They simply whined after the fact that he failed to do what they wanted.
Rather than treating this investigation as if it involved obstruction of justice or some other crime, the investigators should concentrate on the real scandal, which is the disgraceful performance of AG Gonzales and the fact that staffers like Kyle Sampson and Monica Goodling were allowed to act like Soviet commissars.
The only real issue seems to be with respect to Iglesias’ firing.
Oh, really?!?!? The others were just fired for no fricking reason?!?!? McKay in Washington?!?!?
The only thing obvious here is that the paper trail in the Iglesias case shows improoer motive, period. That there not such fortuitous evidence in the case of the others is unfortunate, but any person defending such has to explain why they were fired as well....