Lawyer Adam Cohen in the New York Times (formatting his):
[T]he administration has been strangely successful in pushing its message that the scandal is at worst a political misdeed, not a criminal matter.
It is true, as the White House keeps saying, that United States attorneys serve “at the pleasure of the president,” which means he can dismiss them whenever he wants. But if the attorneys were fired to interfere with a valid prosecution, or to punish them for not misusing their offices, that may well have been illegal.
[…] 1. Misrepresentations to Congress. The relevant provision, 18 U.S.C. § 1505, is very broad. It is illegal to lie to Congress, and also to “impede” it in getting information. Deputy Attorney General Paul McNulty indicated to Congress that the White House’s involvement in firing the United States attorneys was minimal, something that Justice Department e-mail messages suggest to be untrue.
Attorney General Alberto Gonzales made his own dubious assertion to Congress: “I would never, ever make a change in a United States attorney position for political reasons.”
[…] 2. Calling the Prosecutors. As part of the Sarbanes-Oxley reforms, Congress passed an extremely broad obstruction of justice provision, 18 U.S.C. § 1512 (c), which applies to anyone who corruptly “obstructs, influences, or impedes any official proceeding, or attempts to do so,” including U.S. attorney investigations.
[…] 3. Witness Tampering. 18 U.S.C. § 1512 (b) makes it illegal to intimidate Congressional witnesses. Michael Elston, Mr. McNulty’s chief of staff, contacted one of the fired attorneys, H. E. Cummins, and suggested, according to Mr. Cummins, that if he kept speaking out, there would be retaliation. Mr. Cummins took the call as a threat, and sent an e-mail message to other fired prosecutors warning them of it. Several of them told Congress that if Mr. Elston had placed a similar call to one of their witnesses in a criminal case, they would have opened an investigation of it.
[…]4. Firing the Attorneys. United States attorneys can be fired whenever a president wants, but not, as § 1512 (c) puts it, to corruptly obstruct, influence, or impede an official proceeding.
That should help explain why somebody leaked to US News and World Report about panic and paralysis at the DOJ.
The fear that virtually any piece of communication will have to be turned over has paralyzed department officials’ ability to communicate effectively and respond in unison to the crisis, as has the fact that senior Justice officials themselves say they still don’t know the entire story about what happened that led to the crisis. So they are afraid that anything they put down on paper could be viewed as lies or obfuscation, when in fact, the story is changing daily as new documents are found and as the Office of Legal Counsel conducts its own internal probe into the matter.
Depending on your reading one might feel tempted to sympathize, David Broder-like, with the mess in which Gonzales and his appointees have found themselves. If that in fact was the article’s intent, it is hard to imagine a more thorough dereliction of the basic principle of causality and personal responsibility.
Revisit this sentence: senior Justice officials themselves say they still don’t know the entire story about what happened that led to the crisis. Plainly either senior officials know full well the story behind how eight of their US Attorneys got fired, or else we have one of the most dysfunctional Departments of Justice in US history. The message is either a steaming pile of damage control or yet one more indictment of our current government.
Of course the two possibilities hardly exclude each other. Senior managers routinely overrule career lawyers in politically charged cases, suggesting that the DOJ’s role as a neutral arbiter of justice subsumed to the Republican policy agenda long ago. By now we should recognize that when political considerations win out in a federal department, dysfunction follows like water flows downhill.
So of course DOJ is in disarray. The DOJ has been in disarray since the president appointed his own lawyer to the Attorney General job, and probably since Ashcroft (or not?). Like the rest of government they seem to have believed their own rhetoric and felt that Republican Congressional majorities would go on blocking oversight forever.
Again, none of this should be the least bit surprising. Removing accountability always leads to lax behavior. People cut corners, fudge reports and miss filing requirements because human nature does not include a drive to keep up with time-consuming crap unless some punishment exists for not doing it. Political hacks always do a worse job than career professionals because their career doesn’t advance on doing the job right, it moves forward if the results have the right political odor. Mix accountability-free government with political hackery of the first degree and the question of government functioning without screwing up, wrecking protocol and breaking the law becomes a mathematical impossibility.
Take this anecdote for example. In a meeting with skeptical Senators Gonzales at first dismisses them entirely, then loses his nerve and ends in a state of near panic. It might be the first time that Gonzales has experienced real accountability and he has no idea how to deal with it.
Document dumps like today’s emails will cause particular heartburn for the DOJ because the relevant actors didn’t even conspire to break a specific law. At least in that case they would know their own potential jeapordy. Instead Gonzales and his appointees merely acted as if the law (or at least the less obvious laws) didn’t exist. So in a sense it may be perfectly true that they have no real idea what kind of trouble they’re in. Try to understand if my first reaction is to point and laugh.
As a sidebar, don’t miss this story about the great vote fraud case on which Washington US Attorney Tom McKay supposedly lost his standing with the DOJ. It’s pretty funny.