I had not planned to return to the topic of the firings of the eight federal prosecutors tonight, but a column by William F Buckley and a review of the document dump clarified certain issues in the story. Buckley, I believe, captures the essence of the massive failure seen in the Department of Justice in this instance. He notes the plenary authority of both the President to fire political appointees and of Congress to conduct investigations into the conduct of the executive branch. He warns conservatives to refrain from constraining the latter for momentary political benefit:
It is obvious that there are Democrats in Congress who want an opportunity to forage for crimes in the matter of the discharged U.S. attorneys. Nobody has come up with a description of exactly what crime might have been committed and should be investigated. What is being conjectured is that an industrious investigating committee armed with subpoena powers could come up with malfeasance of some kind.
On the other hand, the investigative function of the legislative branch is of plenary importance, and should not be aborted by hypothetical immunities of the chief executive. Woodrow Wilson wrote in his classic book "Congressional Government" that Congress' investigative power was more important, even, than its legislative power. ...
At present, the investigators want to focus on the question whether one or more U.S. attorneys were discharged simply because they were doing their duty, and that duty included refusing to speed up the prosecution of various Democrats. But in the matter of any one of the fired attorneys, guilt might be found to attach to the attorney himself -- he abused his authority by protecting a friend, or by persecuting an enemy -- or to the attorney's superiors, reaching right up to the White House. ...
Of one thing Mr. Bush is manifestly guilty. It is the criminal (in the metaphorical sense) mismanagement of the whole business of the U.S. attorneys. The fault is not personal; it was probably the attorney general and other advisers of the president who took so many clumsy steps. But Mr. Bush's stress on his rights invites a coordinate stress on his responsibilities. "These attorneys," he said, "serve at my pleasure." Right. But presidential pleasures have to rest on defensible grounds.
Reading through the document dump from yesterday, Buckley's analysis looks spot on. It seems clear from the tenor of the e-mails that the instigation for the terminations came from within Justice. Kyle Sampson writes in an e-mail (which I will reproduce farther down) that he had not informed Karl Rove of the plans as of November 15th, 2006. While the White House had started the conversation shortly after the start of the second term, when cleaning house made more sense, the document string seems to support the description of the actual terminations as a DoJ project.
However, they also strain the notion that Alberto Gonzales had no operational discussions about the firings until afterwards. In the two weeks prior to the November 27th meeting, several e-mails got exchanged that clearly show that Justice had already developed a clear plan to terminate the officials -- and to coordinate the political response. The plan went forward after the November 27th meeting, which included Gonzales, making it almost certain that the plan got approved at this meeting of all the principals.
Kyle Sampson's e-mail of 11/15/06 to Harriet Miers and William Kelley at the White House had an attachment called "USA Replacement Plan.doc":
Harriet/Bill, please see the attached. Please note (1) the plan, by its terms, would commence this week; (2) I have consulted with the DAG [deputy Attorney General], but not yet informed others who would need to be brought into the loop, including Acting Associate AG Bill Mercer, EOUSA Director Mike Battle, and AGAC Chair Johnny Sutton (nor have I informed anyone in Karl's shop, another pre-execution necessity I would recommend); and (3) I am concerned that to execute this plan properly we must all be on the same page and be steeled to withstand any political upheaval that might result (see Step 3); if we start caving to complaining US Attorneys or Senators then we shouldn't do it -- it'll be more trouble than it's worth.
We'll stand by for the green light from you. Upon the green light, we'll (1) circulate the below plan to the list of folks in Step 3 (and ask you to circulate it to Karl's shop), (2) confirm that Kelley is making the Senator/Bush political lead calls, and (3) get Battle making the calls to the USAs. Let me know.
This e-mail generated a series of exchanges between Tasia Scolinos, the DoJ press liaison, and Catherine Martin at the White House. As the e-mails make clear, the White House didn't even know which USAs had been targeted for removal at that time; Martin had to get the list from Scolinos on November 21st. William Kelley at the White House also circulated Sampson's e-mail, informing the recipients (one of which was Martin) that the messages "reflect a plan by Justice to replace several US Attorneys". He also wrote: "Before executing this plan, we wanted to give your offices a heads up and seek input on changes that might reduce the profile or political fallout."
It was after this exchange that Justice scheduled the meeting with the principals. On November 21st, four days after sending out the e-mail asking for input on the final plan to replace the USAs, Sampson scheduled a meeting on 11/27 for the purpose of discussing "US Attorney Appointments". The meeting was supposed to include Sampson, Gonzales, his senior counselor Monica Goodling (who is now on a leave of absence), the DAG, Battle, and others. With the list of terminated USAs and the plan in hand, and with Sampson and Kelley looking for input on any needed last-minute changes, it seems very, very likely that the plan and the list got discussed before Gonzales gave his approval.
In fact, what other possible purpose would there have been for the meeting? If Sampson needed nothing more than a signature from Gonzales, he could have gotten that without the meeting.
Now let's look at the statement made by Gonzales on March 13th, 2007:
What I know is that there began a process of evaluating strong performers, not-as-strong performers, and weak performers. And so far as I knew my chief of staff was involved in the process of determining who were the weak performers. Where were the districts around the country where we could do better for the people in that district, and that's what I knew. But again, with respect to this whole process, like every CEO, I am ultimately accountable and responsible for what happens within the department. But that is in essence what I knew about the process; was not involved in seeing any memos, was not involved in any discussions about what was going on. That's basically what I knew as the Attorney General.
Gonzales sat in this meeting, and yet was "not involved in seeing any memos", "not involved in any discussions about what was going on"? That's absurd. For that matter, so is the defense offered by Scolinos and Brian Roehrkasse after the release of these memos. They said that no one can determine whether the USA Replacement Plan.doc and the list of terminated prosecutors ever came up in the meeting, which amounts to "You can't prove anything, copper."
All of this still doesn't make the case that any of the firings were illegal. So far, no one has offered any proof of evil intent. That's what makes Gonzales' handling of this issue so poor. Even if Gonzales didn't intend to deceive -- that is to say that he honestly didn't recall sitting in on that meeting -- wouldn't a competent CEO (as he described himself) do some research before making categorical statements? Every time a Justice official has offered a version of the firings, it has foundered on the shoals of Justice's own documentation, which one would assume these professionals would have checked before creating their explanations.
And who would accept the competence of the AG if Gonzales really had no idea how his own department drew up a list of federal prosecutors for termination? What Cabinet officer would have so little interest in how his underling fired presidential appointees?
That's why I wrote earlier that Gonzales and others who have presented misleading versions of the project are either incompetent or deceptive. We should not accept either in the office of the highest-ranking law enforcement officer of the United States, regardless of whether he is a Republican or Democrat. America existed before the Bush administration, and it will exist after it, and we had better insist on a level of competence and/or honesty that exceeds what we're getting at the moment -- or else we will live to regret it in later adminstrations.