A Host Of Landmines

I've been saying for some time that the Bush legacy will long outlast January 20, 2009, because there will be midlevel officials, executive orders and the like littered all throughout the government, ready to undermine the efforts of a potential incoming Democratic President. We're starting to learn about that with respect to the Justice Department.

High-ranking political appointees at the Justice Department labored to stock a prestigious hiring program with young conservatives in a five-year-long attempt to reshape the department's ranks, according to an inspector general's report to be released today.

The report will trace the effort to 2002, early in the Bush administration, when key advisers to then-Attorney General John D. Ashcroft moved to exert more control over the program to hire rookie lawyers and summer interns, according to two people familiar with the probe.

The honors program, which each year places about 150 law school graduates with top credentials in a rotation of Justice jobs, historically had operated under the control of senior career officials. Shifting control of the program to Ashcroft's advisers prompted charges of partisanship from law professors and former government lawyers who had worked under Democratic administrations.

Here's the full report. This was a Monica Goodling special. She directed the candidate selection process and handed it over to Mike Elston, Chief of Staff to Deputy AG Mike McNulty. All of these folks have resigned now, but their legacy remains. And their subordinates, the hands-on people involved in the hiring of these career attorneys, filtered out candidates with any trace of Democratic or liberal politics in their background, and subsequently DESTROYED their applications. Some examples (McDonald refers to Esther McDonald, one of the hiring managers):

[A]n OARM employee ... recalled that one of the [deselected] candidates she raised to DeFalaise's attention was first in his law school class at Georgetown University, had clerked for a federal district court judge, and was currently clerking for a Second Circuit judge. [footnote 41: This candidate also had worked as a law clerk for Senator Russell Feingold, a Democrat, and for Human Rights Watch, but the OARM employee does not recall pointing out the candidate's political or ideological affiliations to DeFalaise at this time.] (59-60)

Elston also told Mercer that he had already scheduled the December 5 meeting to gauge what people's concerns were [with the selection process]. Elston said he intended to explain the process the Committee had followed so the components would have "a clear understanding of what we did, and what we learned, and what the basis for the strikes were." Mercer told us that he later learned from Associate Deputy Attorney General David Margolis, a senior career Department official, that the December 5 meeting had not gone well and that a lot of people had left the meeting "disturbed" and "not satisfied." (64)

The Committee used paper copies of the applications on which Fridman and McDonald made handwritten notations about the applicants, but those documents were destroyed prior to the initiation of our investigation. (68,69)

McDonald declined to be interviewed during our investigation. When we first contacted her in September 2007 for an interview, she was a Counsel to the Associate Attorney General. She initially agreed to a tentative date for her interview, but she later asked us to postpone the interview while she retained counsel. We agreed. After McDonald retained an attorney, and after allowing time for the attorney to familiarize himself with the matter, a new date for the interview was set, October 25, 2007. However, at 5:15 p.m. on October 24, McDonald's attorney e-mailed our investigators to advise them that his client was canceling the interview. The attorney added that McDonald was no longer employed by the Department. We learned that McDonald had resigned from the Department, effective October 24. On the evening of October 23, she had told her supervisor, Acting Associate Attorney General Katsas, that the next day would be her last day at the Department. Katsas said that her resignation came as a surprise to him. (75)

Elston confirmed that Fridman raised with him early in the review process Fridman's concerns that McDonald was deselecting candidates based on "membership in liberal organizations, or those kind of things," revealed in the candidate's application or from Internet searches she conducted. Elston said he reviewed the applications Fridman noted and saw that McDonald had either circled or written comments about liberal affiliations on the applications and then voted to deselect those candidates. (81)

Elston said he thought he recalled McDonald indicating it was a negative factor if a candidate had worked for a Democrat. (82)

Elston said he did not want to accuse McDonald of doing something inappropriate because he speculated that Goodling may have told McDonald to do what she was doing. (83)

These are, as is known, violations of federal law. Nothing will be done about it because most of those responsible are already out of government and accountability isn't part of the culture of Washington these days. The real impact will be felt when laws from a Democratic President are not implemented, or a staffer leaks information incriminating the executive or his staff, or any of a thousand options that hardcore right-wing DoJ staffers have to damage the opposition party.

When you fail to engage in the most basic oversight and offer even the threat of punishment, a rogue President and his allies can really do just about anything. You can pass laws and they simply don't get followed. You can consider subpoenas for officials who fail to comply with oversight investigations, and the officials just decline. You can take them to court, but the judge doesn't want to get involved and informs the Congress that they could have solved this on their own anyway:

Congress was trying to be diplomatic when it brought an unprecedented lawsuit to settle its subpoena fight against the White House, a lawyer told a federal judge Monday. After all, lawmakers could've just arrested the president's former lawyer for refusing to testify.

The judge's response?

Maybe they should have.

Congress has the authority to hold someone in contempt, U.S. District Judge John Bates said. Did it really need to go to court?

Congress insists on taking most of their bullets out of the chamber and then begging the executive branch to be reasonable, after they have shown no interest in ever doing so. This is how you get the DoJ hiring far-right conservatives and breaking the law with impunity. And getting caught doesn't seem to be an obstacle.

The next four to eight years, should Sen. Obama win, will be littered with "exclusive" stories from inside the DoJ of corruption and politicization and all sorts of malfeasance. These "honor" students are who those charges will be coming from. It'll be a total reversal and somebody had better recognize it.

UPDATE: The more you read this DoJ report, the crazier it gets. They actually denied someone a job because he liked wolves.

Mercer responded by e-mail that he was inquiring with a reference the candidate listed whom Mercer knew to find out "the scoop on intellect, personality, etc." Mercer added:

My initial reaction is that the guy is probably quite liberal. He is clerking for a very activist, ATLA-oriented justice. His law review article appears to favor reintroduction of wolves on federal lands, a very controversial issue here which pits environmentalists against lots of other interests, including virtually all conservative and moderate thinkers. I know of better candidates through our internship and clerkship programs who have applied to the honors program.

There are copious charts and graphs showing the "deselection" process and how liberals (or maybe conservatives who liked wolves, who knows?) were filtered out. The Attorney General says he's accepted all the recommendations in the IG report. Of course he will NOW, the landmines have already been set.

Meddling Justice Department

The more information that comes out about the Purdue Frederick case, the angrier I get. I think I've mentioned that I have a cousin who spent years addicted to OxyContin. Executives at the drugmaker knew their substance was addictive and kept on selling the drugs. The prosecution in the trial didn't even argue this, and the result was a fine that will be largely paid out of the company's vast sum of profits off of the ruination of people's lives.

Now we learn that the US Attorney for Roanoke, where the Purdue Frederick case was filed, was told to slow down on the prosecution:

The night before the government secured a guilty plea from the manufacturer of the addictive painkiller OxyContin, a senior Justice Department official called the U.S. attorney handling the case and, at the behest of an executive for the drugmaker, urged him to slow down, the prosecutor told the Senate Judiciary Committee yesterday.

John L. Brownlee, the U.S. attorney in Roanoke, testified that he was at home the evening of Oct. 24 when he received the call on his cellphone from Michael J. Elston, then chief of staff to the deputy attorney general and one of the Justice aides involved in the removal of nine U.S. attorneys last year.

Brownlee settled the case anyway. Eight days later, his name appeared on a list compiled by Elston of prosecutors that officials had suggested be fired.

Brownlee wasn't fired. But this is a textbook example of politicization into cases of justice. And as I said, the prosecution, even in the view of the judge, blew the case.

In announcing the unorthodox sentence, Judge James P. Jones of United States District Court indicated that he was troubled by his inability to send the executives to prison. But he noted that federal prosecutors had not produced evidence as part of recent plea deals to show that the officials were aware of wrongdoing at the drug’s maker, Purdue Pharma of Stamford, Conn.

So the Elston call may have actually worked. Meanwhile, here's the Justice Department's alibi.

Justice Department officials said it was not unusual for senior members to weigh in on major criminal cases, and a spokesman, Dean Boyd, said the department "encourages healthy internal debate and discussion on complex cases like this one."

Well, perhaps it SHOULD be unusual. Especially when you have a Justice Department as political as this one.

Others said Elston's timing and message were atypical. "Normally, there's a lot of deference given to U.S. attorneys in matters of timing," said Michael R. Bromwich, a former Justice Department inspector general. "The kind of micromanagement that this suggests could easily have a chilling effect in some circumstances."

Turns out that Paul McNulty was talking to the defense attorney in the case and relaying information through DoJ to the US Attorney Brownlee. That appears completely untoward, as if the DoJ is taking sides with the defense in a criminal case.

Wonder what Alberto Gonzales knew about this? Oh, wait, he doesn't know anything.

Last One Working At The Justice Department Turn Out The Lights

Sara Taylor, Harriet Miers, Kyle Sampson, Michael Battle, Monica Goodling, Paul McNulty, Tim Griffin, Bradley Schlozman, and now Mike Elston; all involved with the US Attorney Scandal, all out of work.

A senior Justice Department official who helped carry out the dismissals of federal prosecutors said Friday he is resigning.

Mike Elston, chief of staff to Deputy Attorney General Paul McNulty, is the fifth Justice official to leave after being linked to the dismissals of the prosecutors.

To refresh your memory, Mike Elston was the hatchet man of the group.

As McNulty's top aide, Elston's duties included overseeing the government's 93 U.S. attorneys nationwide. He was closely involved in the firings of seven of the eight prosecutors who were dismissed in 2006. In addition to helping plan those firings, he called several of the U.S. attorneys afterward trying to quell the growing outcry.

At least four of the prosecutors Elston contacted said they felt threatened by his calls, which they interpreted as demands to stay quiet about why they were fired. Congress is investigating the firings, which Democrats believe were politically motivated [...]

"I believe that Elston was offering me a quid pro quo agreement: my silence in exchange for the attorney general's," wrote Paul Charlton, the former U.S. attorney in Nevada.

John McKay, former top prosecutor in Seattle, said he perceived a threat from Elston during his call. And Carol Lam, who was U.S. attorney in San Diego, said that "during one phone call, Michael Elston erroneously accused me of 'leaking' my dismissal to the press, and criticized me for talking to other dismissed U.S. attorneys."

Well, that's all wrapped up now, right? Everyone involved with the scandal has resigned! Everyone, of course, but the ones accountable.

(In other US Attorney news today, by the way, Bradley Schlozman has now been accused of replacing female minority lawyers in the Civil Rights Division of the Justice Department with what he called "Good Americans". He's under investigation for this by the DoJ's Inspector General.)

Blog Outsourcing

Just go to TPM Muckraker today, there's a host of good stuff on the US Attorney scandal. Apparently Michael Elston, DoJ official, told Carol Lam she had to leave in weeks and not months, REGARDLESS OF THE IMPACT on existing cases. And fired prosecutor Bud Cummins heard from a DoJ official that Tim Griffin would stay as his replacement no matter what and that the plan was to circumvent the Senate. And another fired prosecutor, Paul Charlton, was asked to keep quiet about his circumstance in return for the Attorney General's silence. Oh, and Paul McNulty said USA Daniel Bogden's performance had nothing to do with his firing, in variance to his earlier statements to Congress. AND, the Senate Judiciary Committee has granted subpoenas for Karl Rove's emails.

And this is ONE DAY of reporting. TPM Muckraker is amazing.

I have another long US Attorney post that I'm readying, but as an example of how damaging this entire scandal has been, take a look at this:

Lawyers for former Poway defense contractor Brent Wilkes yesterday asked a judge to dismiss indictments stemming from the Randy “Duke” Cunningham scandal because the government deliberately and illegally disclosed grand jury secrets to the media.

Wilkes' attorney, Mark Geragos, also alleged in documents filed in federal court that the leaks were part of a campaign by former U.S. Attorney Carol Lam to use Wilkes and other defendants as “pawns” in a “political squabble” with bosses at the Justice Department who wanted her fired.

Geragos contended that Lam wanted the indictments to happen before the Bush administration forced her from office. The indictments were issued Feb. 13; Lam left two days later.

“The United States Attorney used the leaks to create a public atmosphere that compelled the grand jury to return indictments and present (the Justice Department) with a fait accompli, a gesture of defiance by Carol Lam as she was forced out of office,” Geragos wrote.

Because there was such a sloppy process to fire these attorneys, because it did impact ongoing investigations, the perception that Lam rushed her indictments through may be seen as legitimate, even though it's clear from the evidence that Brent Wilkes is a complete scumbag who was bribing legislators, government officials, everyone in sight. This is the damage done when you mess with the administration of justice.