In light of the Attorney General Alberto Gonzales' testimony before the Senate Judiciary committee yesterday, this seems a good time for another installment of "What the hell just happened?" [For the full timeline of all of these events, see Talking Points Memo]
There are several moving parts here that are important to keep distinct: (1) the politicization of the Department of Justice and questions of the perceived legitimacy of federal prosecutions, (2) the cover up and lies to the American people about the planning, scope, and intent of these firings, and the degree to which elected officials and their political staffs played in them, (3) possible criminal acts of obstruction of justice by interfering in on-going investigations, (4) whether this was a part of a deliberate campaign to undermine our democracy by trying to suppress voting by traditionally Democratic-leaning communities, and (5) questions about the structure of government and the distribution of power.
What Happened to Start All of This?
On December 7 of last year, the Department of Justice fired eight of the 49 United States Attorneys. These are people who oversee offices that prosecute cases involving possible violations of federal law. The position is one standard route to becoming a federal judge. They were replaced with people who are very close to the White House, including Karl Rove's Special Assistant, by the administration without Senate confirmation in accordance with a little known clause in the USAPATRIOT Act which took that power away from the Senate. The House and Senate have recently voted to overturn the President's ability to appoint US attorneys without oversight.
Why Those Eight?
The original reason given for the firing was poor job performance. When their evaluations were examined, all eight were given high marks for their work. From there, the reasoning shifted to their execution of policy goals of the administration. It turns out that all of these attorneys had either brought corruption charges against Republicans or failed to bring corruption charges against Democrats. At this point, questions of the politicization of the Department of Justice erupted.
What did He Know and When Did He Know It?
A fundamental tenet of the American legal system is that everyone is equal under the law, as such, the work of the Department of Justice must be seen as non-partisan if the American people are going to maintain faith in the government's prosecutorial power. If people get the sense that cases in federal court are brought for partisan political reasons, this will have a chilling effect on our democracy. We need to think that enforcement of the law is a matter above partisan squabbles. For this reason, questions about the White House's influence in the matter.
Alberto Gonzales, before becoming the top lawyer for the country as a whole was the personal lawyer for the President. Those connections gave rise to speculation that this was an operation run out of the White House's political machine which would be deeply problematic for the Justice Department.
High ranking officials at the Department of Justice, the White House, and in the Congress denied any attempt to influence the matter.
Then the e-mails were released. It turns out that there was significant coordination between the White House, members of Congress, and the DoJ going back two years. These plans had been in the works for a long time and the list of attorneys to be fired was based on whether an attorney was "a loyal Bushie" (the phrase of Gonzales' deputy in one of the e-mails). Statements that Gonzales made to the Congress and at press conferences about having limited knowledge and involvement turned out to be completely false.
Hariet Meiers, Gonzales' successor as White House council, was set up biefly as a fall-gal to insulate Karl rove and President Bush himself, but questions still exist about their roles, questions continuing to be fueled by the fact that Rove and others in his office were using non-governmental GOP-based e-mail channels to discuss the matter, keeping it away from federal records which must be kept. Once the existence these e-mail accounts were discovered, it was also discovered that Rove had gone back and deleted many of them in violation of the order of the special prosecutor investigating the Scooter Libby and the Plame leak. Whether these e-mails can be recovered is a question being pursued.
There is no doubt that under the reauthorized version of the USAPATRIOT act, the President did have the authority to fire the attorneys, so is it just a matter of undermining public confidence? It would be unless the firing of any of these attorneys was intended to derail an on-going investigation into a political ally of the administration. That would make those connected with the case guilty of obstruction of justice. This remains an open question related to the firings of the prosecutors who were engaged in pursuing Republican corruption.
What About the Talk of Voter Fraud?
When Alberto Gonzales speaks of attorneys being fired for issues "related to policy, priorities and management," what they are talking about is voter fraud. Voter fraud has been a major rallying cry for conservatives for many years, but it has become a major talking point recently. Why?
Elections are won when one candidate receives the most votes. You can seek election by only playing offense -- trying to convince as many people as possible who are voting to vote for you -- or by playing offense and defense -- trying to convince as many people as possible who are voting to vote for you AND trying to make sure that people who are most likely going to vote for your opponent don't vote. In the last several elections, margins of victory by candidates from either party have been razor thin, especially in certain states. In places where Democrats have won close elections, that very small margin of victory has often been provided by poor and minority voters. It is well documented that certain policies, requiring picture id's, for example, depresses voting in these communities.
The Bush administration's policies and priorities were directed to establishing high profile cases and convictions around voter fraud, especially in states like Wisconsin and New Mexico where minority votes were seen as the key to possible Democratic victories. Press coverage for such cases would allow the policies to be put into place which would benefit Republicans at the polls.
The problem was that the claimed wide-spread voter fraud was not to be found. Investigations turned up a few cases which mostly were honest mistakes (a legal alien filling out all the paperwork he was handed when getting a drivers license including the application for a voting card), bureaucratic mix-ups (someone who moved from one jurisdiction to another and whose name had not yet been taken off the voting rolls in his old district), or isolated examples of individuals voting twice.
A federal panel of expert was convened to examined this question, to establish the degree of voter fraud in America. When they submitted their report finding little voter fraud and no wide spread conspiracy to commit voter fraud, some editing changes to thier findings were made. From a New York Times story,
Though the original report said that among experts "there is widespread but not unanimous agreement that there is little polling place fraud," the final version of the report released to the public concluded in its executive summary that "there is a great deal of debate on the pervasiveness of fraud."...
The original report on fraud cites "evidence of some continued outright intimidation and suppression” of voters by local officials, especially in some American Indian communities, while the final report says only that voter “intimidation is also a topic of some debate because there is little agreement concerning what constitutes actionable voter intimidation."
The original report said most experts believe that "false registration forms have not resulted in polling place fraud," but the final report cites "registration drives by nongovernmental groups as a source of fraud."
The Philosophical Question
When defending himself against the charges yesterday, Gonzales contended that he did nothing wrong, that the firings were justified and legitimate. The basis of this argument is what is called the "unitary executive theory." The idea is that as the chief executive of the government, everything that happens in the executive branch is under the control and direction of the President. His whim is sufficient reason for any action. Congress, on this view, has limited or no power to restrain or check the President in what he does or what happens in any of the agencies under him. It is in the name of this view that Bush and his folks have been usurping and limiting the power of the other branches of government.
But this view is not the mainstream opinion on the matter. The objection is that this mindset is based on an equivocation, failing to distinguish between three things: the administration, the government, and the country. In the run-up to the war, we saw the flourishing of the "anti-Bush = anti-America" sentiment, but more subtle is the version in play here where the administration is considering itself to be identical to the government. We see it in the use of signing statements where the President takes laws that are to be enacted and determines what he will mean by the law and which parts he contends do not apply to him. The Congress may pass laws for the rest of the country, but they have no power over the executive or those under him.
But the objection is that the government, and even the executive branch alone, has a structure and roles that are extra-administrative, that is, they do not change from administration to administration and while they are overseen and managed by the executive, they are not political tools of the administration. The EPA oversees the environment, the Department of Defense oversees the armed forces, the Social Security Administration makes sure the checks get out on time to the right people, the Bureau of Indian Affairs makes sure we continue to screw over Native Americans. These are jobs that have large numbers of people with years of experience who know the ins and outs, life-long civil servants who are professionals and make sure that these agencies perform their function.
When you start confusing the agencies of the executive branch with the administration who is temporarily in charge of making sure they get their jobs done, you limit the ability of them to do their jobs effectively. What happened with the firing of the US attorneys is in itself a worrisome action, but really it is a stand in for concerns around the entire governing philosophy of the Bush administration -- everything in government is political and by getting one more vote than the other guy, we have the right to use all of it to our political advantage. They see the governmental structure as nothing more than a means to acquire and maintain power, those on the other side see the government as a tool for the general welfare, parts of which must remain unpoliticized. Bush and his folks see precisely these functions to be not only superfluous, but things the government should not be doing in the first place and so have no problem turning them into levers at Karl Rove's command.