Embattled Attorney General Alberto Gonzales and his closest advisers have stated repeatedly over the past two months that the selective firings of eight United States attorneys last year were justified because President Bush has the authority to purge federal prosecutors at will, a fact that is not under dispute.
However, the common thread in the thousands of pages of documents released by the Department of Justice in conjunction with a Congressional probe into the US attorney dismissals is that top officials in the DOJ who worked behind the scenes believed that they were doing something improper in selectively dismissing the attorneys and acted with a clear intent to deceive lawmakers if any questions into reasons for the firings arose.
Instead of pointing to the president's broad discretion to fire the prosecutors, Justice officials conceived a plan that they would execute on a specific date and time, and then cooked up a story that they all agreed upon in the event that their actions were scrutinized. Simply put, some former US attorneys argue, the emails and other documents released last week demonstrate that prior to the day the firings took place, officials in the Justice Department appeared to be acting under a guilty state of mind.
The state of mind of officials involved in the firings is part of the reason the US attorney purge has turned into a full-blown political scandal and has led to Congressional hearings.
There "seems to be an awareness that the various officials involved in the process knew they were putting out misinformation in large measure; that is, this is evidence of an intent to deceive," said Michael E. Clark, a former US attorney for the Southern District of Texas. "It may not be criminally actionable, but arguably there could be a civil remedy available to those who were on the receiving end - such as for defamation of character. This episode has gained traction in my eyes for the same reason that spelled the fate of former President Nixon during Watergate. The deception is inexcusable, and particularly so when it wasn't necessary; instead, had Gonzales and others been more forthright, then this could have been a tempest in a teapot."
Other former federal prosecutors said the fact that Justice Department officials drafted a document titled "Plan for Replacing Certain U.S. Attorneys" and then allegedly fabricated a set of talking points for the media and lawmakers in the form of employment evaluations showing that the eight US attorneys in question were performing poorly is a clear indicator that DOJ officials knew what they were doing was questionable at best.
The emails demonstrated that "some of [the Justice Department officials] were uncomfortable with the "plan" to dismiss the US attorneys because they realized how unprecedented, disruptive and controversial their actions would be," said Laurie Levenson, a former assistant federal prosecutor in Los Angeles. Levenson recently testified before the House Judiciary Committee regarding the firings. "As for legal consequences of their actions, intent would be important if it could be shown that any of these dismissals were [...] an effort to disrupt or influence a particular criminal investigation."
Several lawmakers, including Senator Dianne Feinstein, (D-Calif.), have questioned whether the eight US attorney firings constituted an attempt to derail corruption investigations involving Republican officials, which the US attorneys who were fired were still working on.
However, Levenson, who now works as a law professor at Loyola Law School in Los Angeles, stressed that it is still a bit "premature" to draw that conclusion "because we still don't know if [the Justice Department was] playing politics or playing with particular criminal investigations."
Dan Richman, a former US attorney in New York, doesn't necessarily see deception at play based on the email traffic of the Justice Department officials, but rather awareness that the firings would touch a nerve among some members Congress and a discussion among the DOJ in dealing with the political blowback.
Even if "the staffers had simply been engaged in a plan to make room for new blood or to cull out [US attorneys] not aligned with the administration's enforcement priorities, they might still have worried about the fallout in Congress or within the DOJ community," Richman said. "The allocation of authority between Main Justice and the Districts [US attorneys are assigned to] has always been a sensitive issue."
On Tuesday, during a news conference in Chicago, Gonzales said he wanted to "reassure the American people that nothing improper happened here."
But it's the appearance of impropriety that has angered Congress and members of the legal community.
Indeed, some of the emails into the activities that predated the firings show that White House officials communicated with DOJ staffers about the attorney purge, using email accounts maintained by the Republican National Committee.
Using alternative email accounts also creates the appearance of impropriety, lawmakers charged Monday, because it allows White House officials to avoid the usual archival process and the automatic paper trail that is established when they use White House email servers to conduct business. Emails sent through the RNC server can be destroyed.
Jason Leopold is editor of the online investigative news magazine The Public Record, http://www.pubrecord.org, and the author of the National Bestseller, "News Junkie," a memoir. Visit www.newsjunkiebook.com for a preview. He is also a two-time winner of the Project Censored award, most recently, in 2007, for an investigative story related to Halliburton's work in Iran. He was recently named the recipient of the Military Religious Freedom Foundation's Thomas Jefferson Award for a series of stories he wrote that exposed how soldiers in Iraq and Afghanistan have been pressured to accept fundamentalist Christianity.
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