Cross Posted at Legal Schnauzer
After reading this week's report on the U.S. attorney firings during the Bush administration, I immediately checked the calendar to see if it was April Fool's Day.
The report, in the form of a letter from Justice Department official Robert Welch to Judiciary Chairman John Conyers (D-MI), found that no criminal charges were warranted against Bush administration officials for the firings of nine U.S. attorneys.
A person who has tried to stay reasonably informed about the scandal is likely to read the report and say, "Is this a joke? Is it meant to be taken seriously?" The report, of course, is about matters of utmost seriousness. That should raise profound questions about the motivations and competence of the Barack Obama administration, especially Attorney General Eric Holder.
Scott Horton, legal affairs contributor for Harper's magazine, does not mince words about the report, which focused heavily on Bush-era attorney general Alberto Gonzalez. Horton calls the report a whitewash. Writes Horton:
The report, in the form of a letter from Justice Department official Robert Welch to Judiciary Chairman John Conyers (D-MI), found that no criminal charges were warranted against Bush administration officials for the firings of nine U.S. attorneys.
A person who has tried to stay reasonably informed about the scandal is likely to read the report and say, "Is this a joke? Is it meant to be taken seriously?" The report, of course, is about matters of utmost seriousness. That should raise profound questions about the motivations and competence of the Barack Obama administration, especially Attorney General Eric Holder.
Scott Horton, legal affairs contributor for Harper's magazine, does not mince words about the report, which focused heavily on Bush-era attorney general Alberto Gonzalez. Horton calls the report a whitewash. Writes Horton:
The DOJ criminal review didn't exonerate Gonzales and his teamfar from it. The Justice Department's letter to the Judiciary Committee explained that they clearly engaged in improper conduct, but it focused on an absence of clear-cut evidence that would make out a criminal case. That's curious. In a series of high-profile public-integrity prosecutions brought by the Bush Justice Departmentthose against Alabama Governor Don Siegelman, Mississippi attorney Paul Minor, and Georgia Senate Minority Leader Charles Walker, for instanceprosecutors also acknowledged they lacked the direct evidence to make out their case in full. But they said the facts were enough to allow jurors to decide for themselves, based on inference, whether corrupt motives were in play. When the tables are turned on the Bush Justice officials who drove those very decisions, we discover that the evidentiary bar has been dramatically raised.
Want to get heavily into "theater of the absurd"? Check out the full six-page letter that outlined the findings. Possible criminal charges in the case included obstruction of justice (18 U.S. Code 1503), theft of honest services (18 U.S. Code 1346), and false statements (18 U.S. Code 1001). Here are a few lowlights:
* Pressure is bad, firing is fine--On obstruction of justice, Dannehy found that the statute penalizes only forward-looking conduct that endeavors to "influence, obstruct, or impede." According to Dannehy, firing someone does not amount to an effort to impede their work. As Dave Barry would say, "I'm not making this up!" Here are actual words from the report:
There was insufficient evidence that former Senator Pete V. Domenici, other New Mexico Republicans, persons in the White House, or anyone at DOJ attempted to prospectively influence Iglesias's actions. The weight of the evidence established not an attempt to influence but rather an attempt to remove David Iglesias from office, in other words, to eliminate the possibility of any future action or inaction by him.
If you can read that without spewing water across the room, you have a stronger constitution than I do. Nora Dannehy actually determined that an effort "to eliminate the possibility of any future action or inaction" by David Iglesias was not an impediment to his work.
* A Dishonest Take On Honest Services--On theft of honest services, Dannehy found the effort to remove Iglesias from office was not "a scheme to get him to use his Office in return for anything of value, including his continued employment." Unfortunately, that's not what the statutory or case law on honest-services fraud says. We summed up the actual law in an earlier post titled "Mail Fraud: A Primer." Here is a key segment:
What about the "honest services" component included under Sec. 1346? Courts have stated that a public official has a duty to disclose information regarding a personal interest that may affect his judgment and therefore "undisclosed, biased decision making . . . regardless of tangible loss to the public . . . constitutes a deprivation of honest services." U.S. v.Lopez-Lukis, 102 F.3d 1164, (1997)
Did Bush officials exhibit undisclosed, biased decision-making in taking out David Iglesias? Considering that Dannehy admits their motivations were political, the answer obviously is yes.
Also, Dannehy found the following:
Additionally, honest services fraud does not embrace allegations that purely political interests may have influenced a public official's performance of his duty.
Where does Dannehy come up with this? It's impossible to say because the letter does not offer a citation to case law. Based on our research of honest-services fraud, that's probably because no such citation exists.
* "Inaccurate" and "Misleading" Do Not Equal "False"--Dannehy says the statute requires that statements "actually be false." Dannehy's report acknowledges that former Attorney General Alberto Gonzalez made statements to Congress and DOJ investigators that were "inaccurate and misleading." But get this conclusion from the report:
Based on a consideration of all the evidence and the legal standards, Ms. Dannehy concluded that there was insufficient evidence to establish that persons knowingly made material false statements to OIG/OPR or Congress or corruptly endeavored to obstruct justice.
Now let's use just a tad of common sense. Certainly a person can make an inaccurate statement that is innocent--he simply is mistaken about something. But Dannehy admits Gonzalez' statements were not just inaccurate; they were misleading. And that indicates the statements were made with intent. How can you unintentionally mislead someone? Answer: You can't. That means Gonzalez' statements were knowingly false --and that clearly is a criminal act under the statute.
What does it all mean? The emptywheel blog at firedoglake puts the report in disturbing perspective:
I don't think anyone would have predicted the cavalier way in which Holder's DOJ reaches its seemingly predetermined decision, while providing a roadmap to other legislators who'd also like to get a prosecutor fired for political convenience. Dannehy and Holder explain to Members of Congress if a Federal prosecutor isn't filing or refraining from filing the cases you want, feel free to covertly conspire to get him fired. As long as you don't make any misguided attempt to "influence" him before you get him fired, you're good to go. Oh, and btw, phone calls to him at home to fume over his handling not to worry, those doesn't count as an attempt to influence.
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