Scandal Cheat Sheet Apr 2, 2007 The Purgegate Primer

Here’s the problem with modern political scandals: Many of the journalists and media outlets follow the case for months—while it’s still under the radar of the American public. Then, when the scandal attracts a great deal of attention, the articles presuppose an audience as versed in the minutiae of the case as its authors. Readers interested in the big picture are left to piece together the backstory themselves.



This has been especially true of “Purgegate,” the controversy surrounding the dismissal of eight U.S. Attorneys. The coverage has been so devoted to the Bush administration’s bungled response to the allegations that many are left to wonder what the original allegations were. Further obfuscating matters is the fact that, as of yet, none of the key players are asserting that any specific crime was committed (though some of the White House’s critics think there may be some “obstruction of justice” charges at the end of this particular rainbow).



And yet this incident, dismissed by Attorney General Alberto Gonzales as “an overblown personnel matter,” is threatening to become one of the biggest blows to the Bush administration yet. And I’ll bet you a beer that Gonzales resigns by Walpurgisnacht. When that happens, I suspect a lot of people are going to say, “What the hell was that all about?”



And so, a primer.



Note: This is not meant to be an encyclopedic reference on the debacle; instead, I intend to give you just enough context to understand the additional revelations (and resignations) that will undoubtedly follow.



Some Key Facts

The United States Attorney General is the chief law enforcement officer of the United States, and head of the Department of Justice. The president nominates the Attorney General, but he or she must be confirmed by the Senate. The current Attorney General is Alberto Gonzales.



The US Attorneys are the attorneys that represent the Federal Government at the judicial district level. The president nominates the U.S. Attorneys, but each must be confirmed by the Senate; the president is free to fire any U.S. Attorney at any time for any reason. There are 93 U.S. Attorneys.



Title 28, section 546 of the United States Code is the statute governing the appointment of interim U.S. Attorneys in the case of a vacancy (due to a firing, resignation, death, etc.). Interim U.S. Attorneys are not subject to Senate confirmation. Until recently, this statute stipulated that interim U.S. Attorneys could serve a maximum of 120 days. Now they can serve indefinitely.



Background

On March 9, 2006, Title 28, section 546 of the United States Code was modified. It happened when the U.S.A. PATRIOT Act Improvement and Reauthorization Act of 2005 was signed into law by President Bush. Unbeknownst to just about everyone, a provision had been tucked into the bill abolishing the 120-day limit on interim U.S. Attorneys, thereby allowing them to serve indefinitely, without ever having to receive Senate confirmation.



The provision was inserted into the bill by the office of Senator Arlen Specter. Specter was offended when some reporters described the controversial provision as having been “slipped in” (“I do not slip things in,” he said), but later admitted that even he did not know about the revision until long after the bill had become a law. Apparently a counsel to the Senate Judiciary Committee, Brett Tolman, had put the verbiage into the bill at the behest of the Justice Department. It is unknown how many Senators knew of the provision when they voted on the bill, but, given that Specter himself was unaware of it, the number could be as low as zero.



In December 2006, eight U.S. Attorneys were fired, and interim U.S. Attorneys appointed in their places.



“Performance-Related”

Many scandals hinge on a single phrase (“I did not have sexual relations with that woman,” “significant quantities of uranium from Africa,” etc.). Much of the Purgegate brouhaha, however, can be attributed to two words: “performance-related.”



By January of this year, some Democratic Senators were looking askance at the U.S. Attorney firings. They noted, for instance, that one of the fired attorneys, Carol Lam, was responsible for putting Republican Congressman Duke Cunningham behind bars. Seeking answers, they summoned Deputy Attorney General Paul J. McNulty to Capitol Hill on February 7, and asked him why the eight had been dismissed.



McNulty’s response is pretty much universally recognized, on all sides of this debate, as a colossal blunder. Or, specifically, his blunder was to respond at all. Presidents can remove U.S. Attorneys by fiat, and are not obligated to account for their decisions. If McNulty had simply said that, and if everyone else in the Administration had stuck to the script, it is unlikely that this story ever would have gotten legs. It probably would have made headlines, then quickly been relegated to the inside pages, and eventually dropped.



Instead, McNulty said that the U.S. Attorneys had been fired for “performance-related” reasons—thereby giving the story both legs and roller skates.



The problem was twofold. First, it was easy as pie to dig up the records of the fired U.S. Attorneys; lo and behold, six of them had recently received positive evaluations. This gave the appearance that the Deputy Attorney General was lying, had something to hide, or both.



The second unintended side effect of McNulty’s statement was worse: The dismissed U.S. Attorneys got pissed. Bear in mind that all were Republicans and loyal servants of the Justice Department. While presumably unhappy about getting the heave-ho, they acknowledged that they served “at the pleasure of the president,” and stepped aside without complaint. Now, suddenly and despite their compliance, they found themselves publicly bad-mouthed. Most felt they had to defend themselves—after all, nothing complicates a job search like having your former employer go on CSPAN and announce you’d been sacked for “performance-related” reasons.



And so, one by one, the fired U.S. Attorneys came forward to tell their sides of the story. February 8: “US Attorney Rebuts Claim Performance Led to Firing”; February 9: “Fired Prosecutor Disputes Justice Dept. Allegation”; and so on.



The Plot Thickens

On February 23, hoping to quell the growing discord, Gonzales’s assistant, Richard A. Hertling, sent a letter to Congress. “The Department of Justice rejects any suggestion that U.S. Attorneys were asked or encouraged to resign for the inappropriate ‘political reason’ of interfering with any public corruption case,” he said. He further stated that, to the best of the Justice Department’s knowledge, no one “lobbied for” any of the firings, and specifically named Karl Rove as someone who played no role in the decisions.



On March 1, the McLatchy Washington Bureau carried an article alleging that, prior to his firing, U.S. Attorney David Iglesias had been contacted by two Republican Congressmen regarding a pending corruption case against Democrats; according to Iglesias, he felt pressured to issue indictments before the November election. Both Congressmen later admitted to making the calls, but denied exerting pressure.



On March 6, speaking before Congress, Iglesias reiterated his claims. Another fired U.S. Attorney, John McKay, said that he was also contacted by Republicans regarding ongoing investigations. In the days the followed, it was revealed that these complaints were relayed by Karl Rove, contradicting the Justice Department’s early claim that he had played “no role.”



At this point, the White House went into full damage-control mode.

March 12 : Kyle Sampson, Gonzales’s chief of staff, abruptly resigned, saying he had failed to fully inform the Justice Department of the White House’s role in the firing.

: Kyle Sampson, Gonzales’s chief of staff, abruptly resigned, saying he had failed to fully inform the Justice Department of the White House’s role in the firing. March 13 : The White House released a bunch of emails documenting the extent to which it had participated in planning the firings. Later that day Gonzales held a press conference, in which he first took responsibility for the firings, and then said that he had no knowledge of how they came about (“I was not involved in any discussions about what was going on.”)

: The White House released a bunch of emails documenting the extent to which it had participated in planning the firings. Later that day Gonzales held a press conference, in which he first took responsibility for the firings, and then said that he had no knowledge of how they came about (“I was not involved in any discussions about what was going on.”) March 14: President Bush spoke publicly about the burgeoning scandal. “Mistakes were made,” he said, echoing a phrase Gonzales used the day before. “And I’m, frankly, not happy about it, because there is a lot of confusion over what really has been a customary practice by the presidents.”

Gonzales the Pariah

At this point you may be asking: “What’s going on here? If the president is free to fire any U.S. Attorney for any reason, why is this such a big story? And why was Bush admitting that mistakes were made?”



Ah, but reread what Bush said—specifically, what he is unhappy about: the publicity rather than the practice (which he characterized as “customary”). The fact that this became a “big story” is the mistake, made by the Attorney General.



Gonzales is in a bad position here. Either he was involved in the firing, in which case, according to his critics, he put politics ahead of law enforcement (i.e., his job), or he wasn’t involved in the firings, in which case: Who the hell is running the Department of Justice, anyhow?



Gonzales apparently concluded that, all things considered, option two was the lesser evil, and so claimed to have not been a party to the planning discussions.



Wrong answer.



On March 19, the Justice Department released 3,000 more pages of emails relating to the Purgegate scandal, and on March 23 they released even more. One of the documents describes a November 23, 2006, meeting in which Gonzales and his top aides explicitly coordinated the firings.



On March 28, The National Review (“America’s most widely read and influential magazine and website for Republican/conservative news, commentary, and opinion”) published an editorial concerning Gonzales entitled “Time to Go.”



On March 29, Kyle Sampson, Gonzales’ former chief of staff, testified before Congress. When asked about Gonzales’s prior statements, Sampson said: “I don’t think the attorney general’s statement that he was not involved in any discussions of U.S. attorney removals was accurate.” Gonzales is scheduled to testify before the Senate on April 17.



Ask not for whom the bell tolls, Alberto. It tolls for thee.



Performance or Politics?

So were the eight U.S. Attorneys fired because of performance or politics? That’s the question Democrats want people asking, having insinuated that the former is a legitimate reason, while the latter is “improper.”



Ultimately, though, it is a false distinction. U.S. Attorneys are political appointees, and the idea that any aspect of their service (hiring, duties, firing) would remain untainted by politics is naive. Furthermore—and this is the case Sampson made during his testimony—one possible “performance-related” reason why a U.S. Attorney might be fired is if he or she, in the opinion of the president, is insufficiently supporting the White House’s policies and priorities.



The real question is: Were some of these U.S. Attorneys (e.g., Carol Lam) removed because they were pursuing corruption charges against Republicans, or viewed as too soft on Democrats? If that were the case, you could then argue that these firings constitute obstruction of justice. But, as with all allegations requiring proof of intent, this charge will be very difficult to substantiate. While there is some fairly damning evidence to support that hypothesis, as of yet no smoking gun has been found.



Until Democrats find one—or give up trying—expect the scandal to continue.



FAQ

I recently asked my readers to send me specific questions they had about the scandal. Here are my answers.



How is this different from Clinton firing 93 U.S. Attorneys at the start of his term?



One thing that defenders of the Bush administration like to point out is that Bush only fired eight U.S. Attorneys, while Clinton fired 93. The implication is: If firing eight is bad, firing 93 must be an order of magnitude worse. However, two factors set the firings apart.



First, they happened mid-term. All recent Presidents (i.e., not just Clinton) have typically replaced all U.S. Attorneys (i.e., 93) at the start their first term, just as they appoint a new Secretary of State, Secretary of Defense, etc. (More details can be found in this article.) This was unusual in that it happened more than two years into Bush’s second term.



Second, the U.S. Attorneys fired by Bush in Purgegate were people he himself had appointed. Clinton fired all 93 U.S. Attorneys to get rid of George H.W. Bush’s appointees, just as G.W. Bush got rid of everyone Clinton appointed within a few months of taking office. There’s nothing inherently improper about a President removing his own appointees, but it’s certainly not customary.



What’s up with the woman who pled the fifth? Does that prove that something illegal took place?



On March 26, Monica Goodling, one of Gonzales’s senior counselors, refused to testify before the Senate, instead invoking her Fifth Amendment right. According to a letter sent by her lawyer, she is not doing so because she has committed any crime, but because she fears she may be prosecuted for telling the truth, if someone else contradicts her testimony, or the Senate just flat-out doesn’t believe her. Call it the “Libby Gambit.” It’s anyone’s guess as to whether this claim of protection would survive the scrutiny of the courts, but my hunch is she’ll be offered immunity before we find out.



What’s the deal with all the White House system emails?



It has recently come out that many people in the White House have been using Republican National Committee email accounts to discuss matters such as this, presumably because Congress cannot subpoena such correspondence, as it can White House email. But as one legal blogger points out, this might blow up in their faces, as such emails might therefore be exempt from claims of executive privilege.



For scandal connoisseurs like me, this perfectly illustrates why Purgegate has been such a treat: Nearly everything the principal players have done to mitigate the damage has somehow made things worse. For example, Gonzales uses the phrase “mistakes were made” to avoid having to specify what the mistakes were and who made them, but in doing so links this case and Watergate in the minds of those familiar with the phrase. It’s like every time they put their hands behind their backs to cover their asses, they get punched in the gut.



Bush says this is a “partisan fishing expedition.” Is it?



Well, yes—albeit one that seems to be landing a fair amount of grouper.



Though I doubt little beyond Gonzales’s resignation will come of this, Democrats will probably try and use this scandal as a springboard for a number of other investigations into allegations that the Bush Administration systematically abused its power for political gain. In fact, they are currently working overtime to connect this scandal to the budding GSA PowerPoint Controversy.



How much is Bush within his rights to assert executive privilege?



If Congress opts to subpoena Karl Rove or former White House Counsel Harriet Miers (who helped coordinate the dismissals), Bush will almost certainly invoke executive privilege, thereby putting the executive and legislative branches of government on a collision course. Trying to figure out what happens afterwards is like arguing over whether Batman or Wolverine would win in a fight.



Going into the legal intricacies would double the length of this article, but MSNBC has an exhaustive Q&A here, and NPR explored the issue in this report. The question of executive privilege may indeed prove to be the most contentious, interesting, and consequential element of the entire scandal.



Were Republicans as farcical in their hectoring of Clinton as the Democrats are now?



Ladies and gentlemen, I give you Joycelyn Elders.

Acknowledgements

I relied on a number of sources for this primer, but none as much as the U.S. Attorney Scandal Timeline at Talking Points Memo. TPM has been generally regarded as the go-to website for this whole affair.



Thanks also to the many contributors to the “Dismissal of U.S. Attorneys Controversy” Wikipedia page and the fine columnists at Slate.com.

