Legalities
Life, Politics and the Law From ABC News Correspondent Jan Crawford Greenburg
Jan Crawford Greenburg is a correspondent for ABC News' bureau in Washington DC. She covers politics, the Supreme Court and provides legal analysis for ABC News. She is a graduate of the University of Chicago's law school and is a member of the New York bar.
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A "pink-slip" slip-up
March 18, 2007 7:30 PM
In the re-election flush of victory, so the story goes, somebody came up with what seemed like a pretty simple plan: tap nearly a hundred Republican lawyers from every state in the Union—red and blue---for the prestigious appointment as one of nation's 93 US Attorneys. Veterans of those important jobs are have gone on to great success---my home state Alabama's Sen. Jeff Sessions was a US Attorney during the Reagan/HW Bush years (until he and the other Republican US attorneys were let go when Clinton took office).
But in the end, as we all now know, the idea of giving pink-slips to all the US Attorneys at the beginning of President Bush's second term morphed into firing just eight of them, and there-in we have the underpinning of the latest imbroglio that has gripped political Washington and fueled heated calls for the resignation of Attorney General Alberto Gonzales.
There's an awful lot of finger-pointing going on as Justice Department and White House aides all try to convince members of Congress and the media that this is all the other guy's fault. And whose bright idea was it to fire all 93 en masse in the first place? Well, that seems to be a moving target too.
Early last week, the bumbling culprit was Harriet Miers, a handy fall-gal since she's recently departed the White House premises. Last Tuesday, White House spokesman Tony Snow told White House reporters during what's called the daily "gaggle" that the cockamamie scheme (my words, not his) was "Miers' idea only."
Wait a minute. During the year I spent reporting my book, I learned a lot about Harriet Miers, the woman President Bush famously called a "pit bull in size six shoes." She is a tough lady. Determined, forceful, an excellent executor and administrator. But what she is not is a political strategist. That is not how she thinks. That sounded like someone else—say, someone known for political strategy—who might have been involved in such a political calculus as replacing 93 political appointees with another round of Republican lawyers. Let's see now. How about Karl Rove? The man President Bush dubbed "the Architect" after Rove designed the 2004 re-election strategy.
Republican insiders I talked to also were dubious of Miers' supposed role-- some outright disbelieving; and I began hearing maybe there was an email that showed Rove had a more central role than the White House had been saying. And sure enough, the emails were there. They showed Rove stopped by the White House Counsel's office in early January 2005 to talk about the firing notion with lawyer David Leitch. Leitch though, wasn't there. He was on the Hill with Alberto Gonzales, making the rounds of Senate offices while his nomination as Attorney General was pending. Harriet Miers was, at the time, slated to become White House Counsel, but technically was still the President's deputy chief of staff. (Gonzales was confirmed by the Senate on Feb. 3, 2005, and Miers became WH Counsel that same day.)
Rove's "drop-by" triggered a series of emails between Leitch and another former White House lawyer, Kyle Sampson, who had already decamped for the Justice Department.
On Thursday, when I called the Justice Department to ask about the emails, the White House swiftly—and uncharacteristically—ordered them released to everyone, trying to pre-empt our report (click here to read it). Yet, even as Rove's central role in the exchange was revealed in the emails' contents, the White House continued to spin the notion—confidently telling nearly every reporter who they could find in the press room---that nothing in the emails contradicted earlier assertions that Rove was an innocent in the whole debacle. In fact, they argued to those gullible enough to believe them, the emails really showed Rove's role was "neutral." The explanation went, Rove was just trying to get some information about what had happened to an idea he thought was a bad one from the get-go.
But let's take a close look at the emails. The subject line: "Question from Karl Rove." The first in the trio of emails came from an assistant to lawyer David Leitch at 12:30 p.m. on Thursday, Jan. 6, 2005. "Karl Rove stopped by to ask you," the message says, "how we planned to proceed regarding US attorneys, whether we were going to allow all to stay, request resignations from all and accept only some of them, or selectively replace them, etc."
Only minutes after getting the message, Leitch wrote to Sampson, "let's discuss." Sampson replied to Leitch three days later with a detailed memo that began, "Judge and I discussed briefly a couple of weeks ago." Sampson went on to memorialize the wholesale replacement of the US Attorneys in the context of legal, historical, operational and political concerns. His memo ended with a political message: "…if Karl thinks there would be political will to do it, then so do I."
Now, let's review here. These are aides to Alberto Gonzales—a longtime rival of Harriet Miers. They are discussing the political implications of replacing the US Attorneys with a whole other group of Republican lawyers. Mind you, there's nothing wrong with replacing U.S. Attorneys. They are political appointees who can be let go whenever the President wants to make a change. As Rove himself pointed out in a speech Thursday (and as Sen. Sessions knows). President Clinton replaced 123 of them during his terms in office. Still, the email chain. begins with a visit by Karl Rove and ends with a deferent nod to his assessment of "political will."
By last Friday, the White House was backing off pinning the mess on Harriet Miers. Here's the official transcript of Tony Snow's spin on the subject at his briefing that day:
Q Tony, do you now know whether it was Harriet Miers who first brought up the idea of removing all 93?
MR. SNOW: Again -- no, I don't. And what we've said -- I tried to make clear earlier today, the most -- here's what I can say -- the most certain thing I can say at this juncture is that Karl Rove has a recollection of Harriet having raised it with him, and his expressing to her that he thought it was a bad idea.
Q Tony, if the White House is unsure who, exactly, came up with the idea, floated the idea to dismiss all 93 U.S. attorneys, and Karl Rove recalls it was Harriet Miers, has anyone at the White House thought to contact Harriet Miers and ask her if it was her idea?
MR. SNOW: The Counsel's Office has talked with her. The question is, does it matter? Does it matter who comes up with an idea?
Q Does it matter if the White House said it was her, and then you're incorrect? I mean, you're giving out incorrect information. I'm not --
MR. SNOW: Well, what happened was -- and I'll lay that on myself -- I was referring earlier, as I said today, to a Kyle Sampson memo that came out that had stated that it was her idea. But at this point, I think -- I want to try to err on the side of caution by noting that Karl had a recollection that she had mentioned it to him, and that's really as far as we can go with it.
Q So you know that someone has talked to her, but you don't know if anyone has asked her that question, specifically.
MR. SNOW: I don't know. And, frankly, I believe you understand how internal deliberations go. But let's think about this for a moment. Again, you've got an idea; it is raised; it is not followed. Is it germane about who comes up with an idea that eventually is not followed by an administration?
Q A bizarre idea, firing 93 people.
MR. SNOW: Oh, happened once before. (Laughter.)
Monday it will all heat up again. Committees in both the Senate and House are threatening subpoenas for all involved—which could lead to a showdown over "separation of powers" and executive privilege. And the Justice Department has promised to release another stack of emails from its internal deliberations. Maybe at the end of all of this we'll find out who's idea this was in the first place.
March 18, 2007 | Permalink | User Comments (12)
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I appreciate that you've so clearly pointed out the White House's mendacity on this whole thing, but I wish you wouldn't repeat the White House line that "there's nothing wrong with replacing U.S. Attorneys. They are political appointees who can be let go whenever the President wants to make a change."
If this were true, why on earth would you, the rest of the media, and congress even care? The truth is that there is something very wrong with replacing U.S. Attorneys for the purely political reason that they refused to use the prosecutorial power of the United States in the aid of the Republican party.
Next you're going to repeat the White House's lie du jour that firing these 8 U.S. Attorneys was the same as Clinton replacing all 93 when he was elected. Please, don't insult our intelligence.
Posted by: disappointed | Mar 18, 2007 9:38:49 PM
Someone help me out here, if there is precedent for firing these attorneys for political reasons, why is this stunning that it is happening again? Why should I care?
Posted by: Bruce | Mar 18, 2007 10:27:31 PM
It seems to me there are two distinct questions here. The first is, does the Bush administration have the right to hire and fire US Attorneys at the beginning of a new four year Presidential term? The second is, is it OK if this particular set of firings served as a smoke screen to derail a criminal investigation by US attorney Carol Lam in San Diego into corrupt dealings by Republicans in the US House (and similarly was it punishment for her prosecution of Randy "Duke" Cunningham)?
The answer to the first is, yes, of course they have the right to change US attorneys. The way they did the change may have been unusual in some respects. They may have pushed the envelope a bit on how they did it. But certainly the basic precedent was there, and certainly the administration can hire and replace it's appointees. (It's mindboggling to hear people say it can't.) And then, the way they handled the explanation was poor, even incompetent.
On the second question, of course, it is not OK to fire a US attorney as a smoke screen to derail an investigation into political corruption by congressional Republicans. This is the heart of the problem. Everything else is just noise.
I think the best thing the administration could do is to give Carol Lam her job back and to make sure that whatever investigations into Republican corruption she was pursuing in San Diego go forward. This is the only issue that has fire to it. The administration should recognize this and do all it can to correct it, before the fire this issue carries with it spreads and burns up every one around it. Protect the President, not some Republican congressmen.
As for Gonzales, I do not think he should resign, mainly because I don't think the Senate would approve anybody to replace him that conservatives would find acceptable. Conservatives don't want someone more liberal than Gonzales around when it's time to pick another Supreme Court nominee.
(As a side note, it is interesting how they tried to pin this idea on Miers. It's interesting that Miers and Gonzales were rivals -- which likely is why he was against her being nominated to the Supreme Court.)
Posted by: Joe | Mar 19, 2007 3:27:41 PM
disappointed said: "[W]hy on earth would you, the rest of the media, and congress even care?"
Answer: The media might care because scandal (real or perceived) means viewers and viewers means ad revenue. Congress might care because Republican scandal (real or perceived) means Democrat political advantage. I view this as a likely explanation now, just as it was when the roles were reversed in the Clinton/Lewinsky scandal.
disappointed said: "The truth is that there is something very wrong with replacing U.S. Attorneys for [a] purely political reason"
Response: I think you meant "partisan" not "political". These appointments are "political" in nature. As to whether partisan appointments are "very wrong" depends if you agree/disagree with the partisan agenda. Was it "very wrong" when Clinton did it? Most on the left would say "no", but intellectual honesty would require a consistent answer of "yes".
I don't personally have a dog in this fight, but I do have this observation: everyone (the media, Congress, Rove, Gonzales, and even "disappointed") has an agenda. Right or wrong, honorable or not, it is so.
Posted by: jdk | Mar 19, 2007 3:34:02 PM
If Gonzales does resign (which wouldn't surprise anyone), Ted Olson would be a replacement that conservatives certainly would like. He's probably their top choice.
I've been reading Michael Chertoff is also a possibility, but it sure seems to me that Chertoff has way too much negative baggage. So much negative activity has gone on under his watch at the Department of Homeland Security (Katrina, for one example, which was an exponentially bigger mess-up than the current dust-up over the US attorney firings). I can't imagine that the democrats in the senate wouldn't rip him to shreds in a confirmation hearing.
Olson should be a relatively easy confirmation. Sure, some democrats won't like it that he argued the Bush side in Bush v Gore or that he argued the Bush side as Solicitor General in front of the Supreme Court, but these aren't issues of massive incompetence and confusion, as is so much at DHS.
Then maybe Olson would give Jan another interview -- and give her good tips about what was going on with judicial nominations. That'd be cool. The more I think about it, Ted Olson for Attorney General sounds like a great idea.
Posted by: Joe | Mar 19, 2007 7:57:03 PM
this whole thing is stupid. Chuck Schumer is the one that needs to be investigated for overtly partisan political maneuvering here.
Posted by: Jack | Mar 20, 2007 2:13:41 AM
Corruption from stem to stern. Start with Bush, go down the line on both sides of the aisle, and put all who have corrupt practices in their record in a federal prison, and not some "campus jail" for the rich. Afterward, audit their estates, and all monies or equivalent obtained while in office above and beyond the legal salaries should be appropriated and put into the national treasury. Start a national shame TV show where corrupt dealings and the players involved are exposed. Make financial lobbying equivalent to bribery, which it really is, and apply appropriate sanctions to the briber and the bribee. Total and unrelenting war on corruption is an idea whose time came long ago...
Posted by: brian | Mar 20, 2007 8:54:00 AM
Looks like Jan was right when she said Sunday this was leading to a showdown over separation of powers and executive privilege. It looks like Gonzales stays and all those who said he was leaving were wrong. All in all, an interesting couple of days.
I suppose this soon will head to the Supreme Court, where it all likely will come down to the vote of Justice Kennedy. Hmmm, some things never change.
(I hope Jan is as right about Janice Rogers Brown being Bush's likely next pick for a Supreme Court vacancy as she was about this US attorneys dust-up ending up in a showdown over executive privilege.)
Posted by: Joe | Mar 20, 2007 7:59:57 PM
QUOTE: "...there's nothing wrong with replacing U.S. Attorneys. They are political appointees who can be let go whenever the President wants to make a change. As Rove himself pointed out in a speech Thursday (and as Sen. Sessions knows). President Clinton replaced 123 of them during his terms in office."
Where on earth did you get that number? 123? There are only 93 of them all together. Is this a typo?
Posted by: uh_clem | Mar 21, 2007 1:23:33 PM
I don't see how that particular email chain is all that damning. There certainly isn't a smoking gun.
One possible interp: Miers originally floated the fire-'em-all idea, Rove opposed it because he didn't think it was politically wise, then over a period of days became convinced that it was, and suggested such to Sampson who put it in an email. That doesn't sound implausible to me at all.
And if that particular email chain is representative of the substance of this investigation, then I agree with Bush that this looks more like a fishing excursion than a real investigation.
Posted by: kwo | Mar 21, 2007 3:37:29 PM
I just read this bit about Justice Kennedy and executive privelege -- from an Adam Liptak article in the NY Times, linked at ABC News: The Note:
"“Once executive privilege is asserted,” Justice Anthony M. Kennedy wrote for the majority in a 2004 Supreme Court decision, “coequal branches of the government are set on a collision course.” . . . In 2004, the Supreme Court ruled for Mr. Cheney. The decision was the occasion for Justice Kennedy’s musings on the troublesome potential of the privilege. He said it should not be lightly invoked because it was a recipe for constitutional confrontation."
So it looks like since the Supreme Court ruled for Cheney in 2004, it likely will rule for the White House again this time. I don't see Roberts and Alito going against that precedent. Looks like the White House is holding the trump card. No wonder Bush seems so confident on the subject.
Posted by: Joe | Mar 21, 2007 5:09:51 PM
The problem here is the patriot act.
New USA's would not need to be confirmed, something foreseen, I believe, in case of emergency, but not as a tool to bypass oversight.
When a president replaced most of them at beginning of his term (and Bush did it too when replacing Clinton, by the way) there was not problem. It's different now: new USA's could be political friends with no competence and be kept on the job without
confirmation.
Posted by: AB | Mar 27, 2007 11:24:50 AM
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