March 12, 2007

Gonzalez Takes Fire From All Sides

Attorney General Alberto Gonzales has begun taking fire from both Democrats and Republicans for the actions of the Department of Justice. While Senator Chuck Schumer called for his resignation yesterday over the firings of eight US Attorneys and the errors made by the FBI in domestic surveillance, Republican Congressman Thomas Davis accused Gonzales of stonewalling on dropped leak cases:

The top Republican on the House's main investigative committee, Rep. Thomas Davis of Virginia, is charging the Justice Department with stonewalling his inquiries about the FBI's assertion that it closed several leak investigations because of a lack of cooperation on the part of other government officials.

In January, Mr. Davis asked the Justice Department about a report in The New York Sun that at least three leak inquiries were shut down after officials at the "victim agency" ignored phone calls and canceled meetings with FBI agents assigned to the probes. The agents said some requests for information were rebuffed for more than a year.

On Friday, the lawmaker, the ranking Republican member of the Oversight and Government Reform Committee, sent a sharply worded letter to Attorney General Gonzales, expressing "aggravation" at the Justice Department's handling of questions about the aborted investigations.

"General Gonzales, it would be an understatement to say I am frustrated and disappointed by your department's response," Mr. Davis wrote. Mr. Davis said he would agree to procedures for a classified briefing, but that the Justice Department replied that "the concern is not classification." Mr. Davis's letter also disclosed that the director of the FBI, Robert Mueller, is conducting an internal review of the bureau's handling of leak cases.

Schumer told "Face the Nation" that the firings of eight US Attorneys with otherwise good performance evaluations had politicized the DoJ. Arlen Specter, a frequent Republican critic of the administration, did not go quite so far, but agreed that Justice had "lots of problems", leaving the question of resignation to Gonzales and George Bush. Charges of politicization picked up steam yesterday when the White House acknowledged that Karl Rove had involved himself in the firing process in at least some of the dismissed federal prosecutors:

The new details about Rove's involvement emerged as the top Democrats on the House Judiciary Committee declared their interest in talking to him.

The committee is trying to determine whether the firings were part of an effort to exert political control over federal prosecutors. Democrats consider Rove the key source for any political interference at the Justice Department because of his role at the center of politics and policy in the White House.

Judiciary Committee Chairman John Conyers, D-Mich., and Linda Sanchez, D-Calif., confirmed their plans after McClatchy Newspapers reported Saturday that New Mexico's Republican Party chairman, Allen Weh, had complained to Rove and one of Rove's deputies about Iglesias.

As I have noted before, the position of US Attorney is a presidential appointment, and as such is a political position. US Attorneys serve four-year terms, not coincidental to presidential terms of office. They have to get confirmed by the Senate, just as with any other high-level appointment, but they serve at the pleasure of the President. Since their terms of office expire roughly along that of the President, they usually get replaced when a new President takes office.

All that said, federal prosecutors rarely get replaced mid-term unless specific performance shortcomings reveal themselves. When they do get replaced, new prosecutors only had, under previous law, 120 days to serve on an interim basis before getting confirmed by the Senate through the normal appointment process. That requirement changed last last year in a little-noticed codicil to a homeland-security bill, which allowed Gonzales to replace prosecutors for an indefinite term without Senate oversight. As soon as the law took effect, Gonzales forced the resignations of almost 10% of all US Attorneys, a rather unusual move with unusual timing.

The FBI and leak cases have less to do with Gonzales and more to do with Robert Mueller and other agencies in the bureaucracy. FBI agents broke rules governing the kind of information they could retrieve under the looser restrictions of the Patriot Act, and then underreported the problem to Congress. The FBI is a part of the DoJ, but Mueller runs the FBI and is responsible for its operation. Gonzales may not have responded quickly enough for Davis, but the problem with the leak investigations is less one of enthusiasm at Justice than it is in finding witnesses willing to speak to investigators. The agencies where leaks occurred have not cooperated with the FBI, and if any Cabinet-level officials should take responsibility for that, it should be those who run those agencies, not Gonzales.

Gonzales needs to answer for the dismissals of the prosecutors and the manner in which they were handled, however. It seems highly suspect that the AG suddenly decided to clean house just after the requirement for Senate confirmation got waived on interim appointments, a change that the White House now says it will not defend from reversal by this session of Congress. It's not illegal to replace federal prosecutors for political reasons, but it's foolish to do so as baldly as Gonzales appears to have done -- especially when the White House has to work with a Congress newly captured by an opposition party eager to launch investigations as Helen launched ships from Greece.

UPDATE: The Wall Street Journal has similar thoughts about the incompetence at Justice:

Just when President Bush seemed to have beaten back the Congressional defeatists on Iraq, along comes his own Justice Department to undermine some hard-won antiterror policy gains. The incompetence at Justice is getting to be expensive for Presidential power.

The latest episode involves the FBI's failure to adequately supervise the issuance of so-called "national security letters," or administrative subpoenas for counterterrorism cases that don't require a judge's approval. Congress authorized these letters in 1986 and their scope was expanded as part of the 2001 Patriot Act. An Inspector General's audit has found that some of these subpoenas were improperly issued, and that the FBI lacked the means even to monitor how many were issued, leading to misreporting to Congress. ...

In particular, the Bush Administration shouldn't now give in to any such demands merely to appease Congress or save the jobs of Messrs. Mueller or Gonzales.

We raise that possibility because this is what seems to have happened after Justice's other recent fiasco over the firing of eight U.S. attorneys last December. Last week, under pressure from Congress, Mr. Gonzales said he and Mr. Bush wouldn't object if Congress wanted to strip him of his ability to replace U.S. attorneys without Senate confirmation and give that power to a district court judge. While a similar process prevailed before the Patriot Act, we think the ability to hire and fire attorneys is a core executive power that should not be abandoned to unelected judges.

Incompetence leads to many bad ends, and bad policy certainly is one of them.


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