Is Gonzales a Diversion?

By Dan Froomkin
Special to washingtonpost.com
Wednesday, March 14, 2007 1:20 PM

Attorney General Alberto Gonzales is taking fire -- but he may also be creating a diversion.

Whether by accident or by design, his public statements are distracting journalists from elements of the prosecutor-purge scandal that lead directly to the heart of the White House.

Gonzales's inattentive management of the Justice Department and the repeated deception of Congress by senior Justice officials are certainly important issues.

But the central question before us is whether the unprecedented mid-term purge of eight U.S. attorneys was the result of their having failed to use their offices to pillory Democrats as much as the White House wanted them to.

Negligence and deceit are one thing; a policy of requiring law-enforcement officials to abuse the justice system for partisan ends is quite another. (See yesterday's column.)

In a news conference yesterday and on a tour of the television morning shows today, Gonzales repeatedly acknowledged that "mistakes were made" and accepted responsibility for the fact that "incomplete" information "may have been communicated" to Congress.

But his collection of talking points were ultimately meaningless, passive and nonresponsive.

Meanwhile, the White House is sticking to its position that the prosecutors were removed for cause -- while hoping no one remembers that its official position also used to include the now-jettisoned insistence that Bush's chief political adviser, Karl Rove, wasn't involved.

White House counselor Dan Bartlett told reporters yesterday that Gonzales still has the confidence of the president, because "He's a stand up guy."

Asked about all the cumulative credibility crises suddenly facing the White House, Bartlett accused reporters of trying to "connect a lot of dots that aren't connectable" -- then attributed all the controversy to the administration's diligence against terror: "I think if you look back at any presidency, issues like this come up all the time, particularly when we are such an active government that is engaged in the war and . . . where we're trying to prevent terrorists from attacking our homeland.

The Gonzales News Conference

Here's the transcript of Gonzales's news conference yesterday.

Dana Milbank of The Washington Post examines some of the contradictions:

"'Mistakes were made,' he said in fluent scandalese, but 'I think it was the right decision.'

"'I am responsible for what happens at the Department of Justice,' he posited, but 'I . . . was not involved in any discussions about what was going on.'

"'Kyle Sampson' -- Gonzales's chief of staff -- 'has resigned,' he said, but 'he is still at the department.'

"And, finally, 'I believe in the independence of our U.S. attorneys,' Gonzales maintained, but 'all political appointees can be removed . . . for any reason.'

"He had the look of a hunted man in his appearance at the Justice Department. He wiggled his toes inside his shoes and shifted his feet. He spoke too loudly into the microphone. He arrived 18 minutes late, gave well-rehearsed answers and appeared intent on getting out as fast as he could, ignoring reporters' shouts of 'Sir! Sir!' The child of Mexican immigrants even mentioned his rise from poverty in dismissing calls for his ouster: 'I've overcome a lot of obstacles in my life to become attorney general. I am here not because I give up.'"

Ruth Marcus writes in her Washington Post opinion column that Gonzales's news conference "was a self-serving masterpiece of passive voice and unpersuasive platitudes. . . .

"Translation: 'I'm going to tell you I'm responsible, because that's what they tell me I have to say. But of course I'm not. It's all Kyle Sampson's fault. I'm hoping that if I say I'm accountable often enough, no one will actually hold me accountable.'...

"The precise non-mistake mistake that Gonzales copped to yesterday was sharing 'incomplete' -- this is Gonzales-speak for wrong -- information with Congress. Think about this: Gonzales first testified about the U.S. attorney firings on Jan. 19. His No. 2, Paul McNulty, testified on Feb. 6. Assistant Attorney General William Moschella testified March 6.

"And it wasn't until this week that Justice finally figured out it hadn't figured out the whole story? If that's true -- and I'm not sure which would be worse -- why should anyone believe this crowd is capable of getting its congressional story straight in the future?"

Gonzales in the Morning

On CNN this morning, anchor Miles O'Brien got Gonzales to admit he himself made mistakes -- but not to say what they were.

Here's the video and the transcript:

"O'BRIEN: Why don't you give us a self-evaluation? How do you think you did your job through all this?

"GONZALES: Obviously, I think there were mistakes made here. I think that part of the problem is we don't have --

"O'BRIEN: I was asking -- that 'mistakes made,' that's passive. The question is, how did you do your job? Do you feel you did a good job?

"GONZALES: I think that I did make some mistakes and we'll going to take steps to ensure that doesn't happen again. But, ultimately, I work for the American people and I serve at the pleasure of the United States and he'll decide if I continue to serve as attorney general. . . .

"O'BRIEN: Mr. Attorney General, do you feel it's time for you to step down?

"GONZALES: That will be a decision for the president of the United States to make. I think if you look at the record of the department --

"O'BRIEN: But should you offer your resignation? Is it time for you to offer your resignation?

"GONZALES: It's the decision of the president of the United States to make. I'll be focused on identifying what went wrong here and correcting those mistakes, and focused on the good for the American people.

"O'BRIEN: The decision to offer your resignation is yours, is it not?

"GONZALES: I'm focused on doing my job."

NBC's Matt Lauer and CBS's Harry Smith weren't able to move Gonzales off his talking points even that much.

The Coverage

Dan Eggen and Paul Kane write in The Washington Post: "Attorney General Alberto R. Gonzales took responsibility yesterday for 'mistakes' related to the firing of eight U.S. attorneys last year but rejected calls for his resignation from Democrats who accuse him of misleading Congress.

"'I acknowledge that mistakes were made here. I accept that responsibility,' Gonzales said. He said he did not know the details of the plan to fire the prosecutors, but he defended the dismissals: 'I stand by the decision, and I think it was a right decision.' . . .

"The revelations prompted another outcry on Capitol Hill over the firings and new demands for Gonzales's resignation from key Democrats, including Senate Majority Leader Harry M. Reid (Nev.), Sen. Hillary Rodham Clinton (N.Y.) and Sen. Edward M. Kennedy (Mass.). 'It appears he's over his head in this job,' Reid said."

Not Listening Carefully Enough

Kevin Johnson and David Jackson of USA Today miss a crucial distinction. They report that Gonzales "acknowledged Tuesday that 'mistakes were made' in the Bush administration's firings of eight federal prosecutors." But he didn't.

And Sheryl Gay Stolberg and Jeff Zeleny, writing in the New York Times, call it a "mea culpa" -- which it is not.

Cutting Gonzales Loose?

Stolberg and Zeleny also disclose what could be a sign that the White House will cut Gonzales loose.

They write: "With Democrats, including the Senate majority leader, Harry Reid of Nevada, insisting that Mr. Gonzales step down, his appearance underscored what two Republicans close to the Bush administration described as a growing rift between the White House and the attorney general. Mr. Gonzales has long been a confidant of the president but has aroused the ire of lawmakers of both parties on several issues, including the administration's domestic eavesdropping program.

"The two Republicans, who spoke anonymously so they could share private conversations with senior White House officials, said top aides to Mr. Bush, including Fred F. Fielding, the new White House counsel, were concerned that the controversy had so damaged Mr. Gonzales's credibility that he would be unable to advance the White House agenda on national security matters, including terrorism prosecutions.

"'I really think there's a serious estrangement between the White House and Alberto now,' one of the Republicans said. . . .

"[A]ides to the president, including Mr. Rove and Joshua B. Bolten, the chief of staff, were said to be increasingly concerned that the controversy could damage Mr. Bush.

"'They're taking it seriously,' said the other of the two Republicans who spoke about the White House's relationship with Mr. Gonzales. 'I think Rove and Bolten believe there is the potential for erosion of the president's credibility on this issue.'"

Who's Next?

James Gordon Meek writes in the New York Daily News: "A senior GOP leadership source predicted Deputy Attorney General Paul McNulty will be forced out next. McNulty told Congress that the firings were performance-related, but he received copies of many e-mails in which political decisions were made."

The Clinton Excuse

New presidents typically start with a clean slate of U.S. attorneys, appointed by them. That's standard practice.

But from that point forward, the prosecutors are expected to behave with a certain amount of independence.

What's unprecedented about this case is the large-scale purge of U.S. attorneys, in the middle of a presidential term, potentially because they were perceived to be insufficiently partisan.

I've been dumbfounded by all the e-mail I've been getting from people trying to forgive Bush's move by likening it to the generic, whole scale acts of previous presidents. Do people really not understand the distinction?

Well, apparently Bush himself doesn't get the distinction. Or he does, but he's just trying to confuse people.

Early this afternoon in Mexico, Bush repeated this entirely unsupported and disingenuous argument, saying that "there is a lot of confusion about what really has been a customary practice. . . . Past administrations have removed U.S. attorneys, it's their right to do so."

McClatchy Newspapers explains: "Mass firings of U.S. attorneys are fairly common when a new president takes office, but not in a second-term administration. Prosecutors are usually appointed for four-year terms, but they are usually allowed to stay on the job if the president who appointed them is re-elected."

This is not a debatable fact -- even within the Bush administration. As Gonzales's former chief of staff Sampson explained to White House lawyers in an Jan. 9, 2006, e=mail: "In recent memory, during the Reagan and Clinton Administrations, Presidents Reagan and Clinton did not seek to remove and replace U.S. Attorneys they had appointed whose four-year terms had expired, but instead permitted such U.S. Attorneys to serve indefinitely under the holdover provision.'"

Politics and Policy

Bob Egelko writes in the San Francisco Chronicle: "The Justice Department's firing of federal prosecutors who ran afoul of the Bush administration or Republican operatives is fueling the belief among legal analysts -- including some conservatives -- that the White House is erasing the traditional line between politics and policy in law enforcement.

"'The Justice Department is different from other agencies because it's devoted to the rule of law,' Bruce Fein, a Justice Department official under Presidents Richard Nixon and Ronald Reagan, said Tuesday. He said the Bush administration is tampering with that principle in a way that is 'worrisome, because the rule of law is the cement that holds the country together.'"

About Those E-Mails

Here are the e-mails released yesterday, parts one, two, three and four, reflecting communication between the Justice Department and the White House.

David Johnston and Eric Lipton write in the New York Times: "The documents provided by the Justice Department add some new details to the chronicle of the fired prosecutors but leave many critical questions unanswered, including the nature of discussions inside the White House and the level of knowledge and involvement by the president and his closest political aide, Karl Rove.

"The White House said Monday that Mr. Bush and Mr. Rove had raised concerns about lax voter fraud prosecutions with the Justice Department. And several of the fired attorneys told Congress last week that some lawmakers had questioned them about corruption investigations, inquiries the prosecutors considered inappropriate. The documents do not specifically mention either topic. . . .

"Mr. Sampson's e-mail message, sent to the White House and Justice Department colleagues, suggested he was hoping to stall efforts by the state's two Democratic senators to pick their own candidates as permanent successors for Mr. Cummins.

"'I think we should gum this to death,' Mr. Sampson wrote. 'Ask the senators to give Tim a chance, meet with him, give him some time in office to see how he performs, etc. If they ultimately say "no never" (and the longer we can forestall that the better), then we can tell them we'll look for other candidates, ask them for recommendations, interview their candidates, and otherwise run out the clock. All this should be done in "good faith" of course.'"

Evan Perez and Gary Fields write in the Wall Street Journal: "Emails between White House aides and Attorney General Alberto Gonzales's chief of staff show an orchestrated effort to fire several U.S. attorneys, counter to Mr. Gonzales's previous assertions that the firings weren't instigated by the White House."

Margaret Talev writes for McClatchy Newspapers: "In a remarkably candid series of emails, Justice Department officials said its new powers to appoint interim U.S. attorneys without Senate confirmation offered the administration the chance to efficiently 'get our preferred persons appointed' to the top prosecutors jobs."

The Boston Globe has some excerpts. Here, for instance, is a Dec. 4, 2006, e-mail from Deputy White House Counsel William K. Kelley to Sampson, copied to White House Counsel Harriet Miers: "We're a go for the US atty plan. WH leg[islative affairs], political and communications have signed off and acknowledged that we have to be committed to following through once the pressure comes."

GWB43.com

One curious aspect of yesterday's document dump is that it shows e-mails from J. Scott Jennings, who is Karl Rove's deputy at the White House, coming from an e-mail address at gwb43.com -- a domain owned by the Republican National Committee.

It makes some sense that White House officials might have and use such accounts when they conduct party business, rather than White House business. But the distinction between party and government business seems to have been forgotten here -- which I guess is exactly the point.

Eggen and Kane write in The Post: "Democratic congressional aides said they will investigate whether using the private address for government business violated laws against using taxpayer resources for political work or signaled that White House officials considered the firing of U.S. attorneys to be primarily a political issue. Jennings did not return a call to his office seeking a comment.

"'As a matter of course, the RNC provides server space and equipment to certain White House personnel in order to assist them with their political efforts,' RNC spokeswoman Tracey Schmitt said."

I have asked a White House spokesman to answer the following questions:

1) Does White House policy allow White House staffers to use non-White House e-mail addresses for official White House business? Does it prohibit it? What is the policy?

2) Would these e-mails be treated any differently from official White House e-mails when it comes to archiving or subpoena purposes?

3) Does it create either impropriety or the appearance of impropriety that gwb43.com is a domain owned by the Republican National Committee?

4) Do other White House staffers regularly use non-White House e-mail accounts for White House business, and if so, why?

So far, no answers.

FAQ

David G. Savage has a primer on U.S. attorneys in the Los Angeles Times.

Cascade Failure

Peter Baker and Michael Abramowitz write in The Washington Post: "The cascade of controversies that followed Bush to Latin America has left a president familiar with weathering crises in uncharted territory. For the first time since taking office, Bush confronts political furors on multiple fronts and an opposition Congress armed with the subpoena power to investigate them. . . .

"In the past, questions about its actions might have died down without the internal administration e-mails being made public. Now the White House is in the position of explaining why it has repeatedly changed its story. . . .

"'What you have got is a White House that has become an accountability-free zone that is now facing the reality of checks and balances from Congress,' said Rep. Chris Van Hollen (Md.), a member of the House Democratic leadership. 'You had a White House that was used to a rubber-stamp Congress for so long that they could get away with anything. This is the kind of stuff that in the past Congress would have put their head in the sand about.'"

Baker and Abramowitz note that Bartlett, while acknowledging that the attorney issue was mishandled, "made no mention, however, of the shifting White House version of events. A week ago, the White House said it knew of no involvement of Deputy Chief of Staff Karl Rove. But this week it disclosed that Rove was consulted two years ago on a suggestion to fire all 93 U.S. attorneys and that he warned against it. On Tuesday, Bartlett said that 'it wouldn't be surprising that Karl or other people were receiving these complaints' about prosecutors and passing them on."

Motivation

The mainstream press is doing a miserable job of addressing the issue of "voter fraud" and whether criminal investigations into such alleged fraud are acts of responsible law-enforcement or rank partisanship, and what role all this played in the firings. I hope to revisit that tomorrow.

In the meantime, blogger Josh Marshall outlines a circumstantial case that the administration's beef with San Diego U.S. Attorney Carol Lam had everything to do with her prosecution corruption investigation of former Republican Rep. Randy 'Duke' Cunningham.

Editorial Watch

Washington Post: "It's become clear, most recently and pointedly with the release of e-mails between Mr. Sampson and former White House counsel Harriet E. Miers, that Mr. Gonzales's assurances can't be trusted. . . .

"As we have said previously, the administration is entitled to prosecutors who reflect its policies and carry out its priorities. It is not entitled to treat federal prosecutors like political pawns -- nor is it entitled, any longer, to the benefit of the doubt about the propriety of its conduct.

"Mr. Gonzales can make self-serving declarations about his belief in 'accountability,' as he did at a news conference yesterday; he can proclaim his plans to 'ascertain what happened here . . . and take corrective actions.' Nothing in his record gives any reason for confidence that anything will change in a department under his leadership."

New York Times: "In firing the prosecutors and replacing them without Senate approval, Attorney General Alberto Gonzales took advantage of a little-noticed provision that the administration and its Republican enablers in Congress had slipped into the 2006 expansion of the Patriot Act. The ostensible purpose was to allow the swift interim replacement of a United States attorney who was, for instance, killed by terrorism.

"But these firings had nothing to do with national security -- or officials' claims that the attorneys were fired for poor performance. This looks like a political purge, pure and simple, and President Bush and his White House are in the thick of it."

Los Angeles Times: "[D]on't blame [Gonzales] for the lack of principled leadership at the Justice Department. Blame his boss. President Bush appointed a man clearly unqualified for the job..

"The fact that the White House was complaining to the Justice Department that David Iglesias, the well-regarded federal prosecutor in New Mexico, was insufficiently committed to taking up voter fraud cases that Republicans cared deeply about is rather alarming. Alarming, but not surprising -- not so long as Gonzales is attorney general."

San Francisco Chronicle: "These latest incidents underscore the obvious: Gonzales must resign. The nation needs an attorney general who can restore confidence in the administration of justice."

Philadelphia Inquirer: "[T]he nation needs an attorney general whose first loyalty is to the rule of law, not to his old pals in the White House."

What About the 'Good Soldiers'?

New York Times opinion columnist Paul Krugman writes: "The bigger scandal, however, almost surely involves prosecutors still in office. The Gonzales Eight were fired because they would not go along with the Bush administration's politicization of justice. But statistical evidence suggests that many other prosecutors decided to protect their jobs or further their careers by doing what the administration wanted them to do: harass Democrats while turning a blind eye to Republican malfeasance.

" Donald Shields and John Cragan, two professors of communication, have compiled a database of investigations and/or indictments of candidates and elected officials by U.S. attorneys since the Bush administration came to power. Of the 375 cases they identified, 10 involved independents, 67 involved Republicans and 298 involved Democrats. The main source of this partisan tilt was a huge disparity in investigations of local politicians, in which Democrats were seven times as likely as Republicans to face Justice Department scrutiny.

"How can this have been happening without a national uproar? The authors explain: 'We believe that this tremendous disparity is politically motivated and it occurs because the local (non-statewide and non-congressional) investigations occur under the radar of a diligent national press. Each instance is treated by a local beat reporter as an isolated case that is only of local interest.'"

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