2. The Justice Department’s Inspector General (OIG) and the Office of Professional Responsibility (OPR) have been investigating the firing of eight U.S. attorneys, including yourself, and their report is now due. The OPR has been heavily criticized lately for its failure to follow through on major investigations, and it has been manipulated—sometimes overtly—by political appointees. OIG has maintained its independence and integrity, however. Have you been interviewed in connection with this probe? Did it strike you as thorough and professional? Do you expect a report to be issued shortly, and if so, what are the major conclusions you would anticipate?
Yes, I was interviewed by attorneys from both OIG and OPR. They initially interviewed me in Albuquerque in June, 2007. They called me a couple more times with follow-up questions. I viewed them as professional and thorough. I expect the report to be filed any day now. I expect them to conclude that there is sufficient evidence to show that former Attorney General Alberto Gonzales and former Deputy Attorney General Paul McNulty committed perjury in their statements before Congressional committees and investigators. They may find that former McNulty chief of staff Mike Elston intimidated witnesses based on his calls to former U.S. Attorney Bud Cummins of Arkansas. I was aware that Elston had told Cummins that “the gloves would come off” if we kept speaking out about our forced resignations. I found out after In Justice went to print that Elston also told Cummins we would be “thrown under the bus” for our speaking out. It is appalling that a former career federal prosecutor like Elston would so flagrantly violate the law against witness intimidation. There may be enough evidence to warrant a formal investigation of conspiracy and obstruction of justice charges against Gonzales, McNulty and Elston. I hope the OIG/OPR report recommends the appointment of a special prosecutor to investigate the matter, taking the advice offered by former U.S. Attorney John McKay in his compelling law review article on the subject.
3. You quote John Ashcroft as saying that “politics have no role in the position of United States attorney.” But of course, the House Judiciary Committee is now looking at a list of prosecutions brought under Ashcroft’s tenure in which there is significant evidence that politics did indeed play a role. On Thursday of last week, Ashcroft surprised many by stating that he was very troubled by the way the White House manipulated the process of issuing opinions in the Office of Legal Counsel (OLC). He suggested that OLC had ceased to be independent or to render independent legal advice. What emerges from Ashcroft’s testimony is a picture of a Justice Department that was slipping out of his control and was being secretly manipulated by political functionaries in the White House. In retrospect, would you now say that this may have occurred with respect to the U.S. Attorneys as well?
Yes, based on what I know now, the political operatives in the West Wing wanted an outcome that Ashcroft and former Deputy Attorney General Jim Comey were not willing to support after reviewing the law. The White House didn’t want an independent analysis–it wanted the rubber stamp of the Justice Department. I recall hearing testimony last year from Comey that he, Ashcroft, and FBI Director Bob Mueller threatened to resign over the warrantless wiretap issue—another issue from OLC, but indicative of the clash between the politicos of the West Wing and the independent analysis that the DoJ was ethically required to provide.
Regarding the other U.S. Attorneys, of the remaining 84 who were not asked to resign in 2006, I am aware of allegations of selective, politically driven prosecutions in Alabama related to the highly suspicious prosecution of former Governor Don Siegelman, the prosecution of county coroner Cyril Wecht in Pittsburgh, and the prosecution of Wisconsin employee Georgia Thompson in Milwaukee. I am not aware of even the allegation of a “Faustian bargain” with the remaining 81 US Attorneys. Having worked with virtually all of them, I believe them to be ethical attorneys who would not compromise their office for political gain.
4. You write that “all roads lead to Karl Rove,” that he was the mastermind of the plan to cashier U.S. attorneys for political reasons. Ten days ago, Karl Rove failed to respond to a subpoena from the House Judiciary Committee, sending only a letter by his lawyer stating that he was invoking executive privilege. Of course, as you explained in your article in Slate, Executive Privilege does not exist in this case, and in any event, it would be the President’s privilege to invoke, not Karl Rove’s. Not only did Rove fail to appear, he actually fled the jurisdiction, as my colleague Ken Silverstein reported, appearing at a “nauseating” gathering of post-Soviet oligarchs in Ukraine. To add to the insult, he later appeared on Fox News taunting and mocking the Congressional investigators. Do you think it would be appropriate for Congress to sanction him for contempt? Why do you think Rove is refusing to answer questions under oath? Do you believe the prohibition on “corruptly influencing” a criminal prosecution, 18 U.S.C. § 1503(a), has something to do with Rove’s decision?
Rove has already been held in contempt of the Senate. The House should follow suit. It is unacceptable in a country where the rule of law is the cornerstone of our jurisprudence that a former White House official fail to appear to claim privilege before Congress. Rove should have appeared before Congress and claimed privilege. Rather, he thumbed his nose at a co-equal branch of government and showed his utter disregard for their powers. His actions are contemptuous per se and he should be held in contempt by the House. The language of 18 USC § 1503(a) is broad since it speaks of “influencing” an “officer…of the United States” in the “discharge of his duties” including the “due administration of justice.”
Applying this test to the allegations concerning the Siegelman matter, for instance, the evidence suggests that Rove influenced a U.S. Attorney in the discharge of her duties. This is a very serious matter and needs to be fully investigated since a non-attorney policy adviser has no business influencing the indictment of an elected official.
The record also shows that Domenici contacted Rove about me, as did the State Party Chairman of New Mexico, Allen Weh. If Rove’s intent was to find a U.S. Attorney who would file voter fraud cases or rush an indictment against the former State Senate Pro Tem Manny Aragon, then Rove may face criminal exposure using the “corruptly…influence” standard in section 1503. The Administration may be withholding evidence concerning former San Diego U.S. Attorney Carol Lam’s forced resignation while she was investigating Dusty Foggo, a high level political appointee at the CIA and former Arizona U.S. Attorney Paul Charlton’s dismissal as he was investigating Arizona Congressman Rick Renzi, a conservative Republican.
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