Pointing the Finger at the White House

By Dan Froomkin
Special to washingtonpost.com
Monday, September 29, 2008; 1:14 PM

The Justice Department's new investigative report into the removal of nine U.S. attorneys in 2006 points a steely and incriminating finger over the stone wall -- toward the White House.

Let's be frank here: Not many people in Washington have ever suspected that notoriously weak-willed and suggestible former attorney general Alberto Gonzales came up with the idea of the firings on his own. So it's not big news that the report released this morning contains a series of humiliating conclusions about his abysmal lack of leadership and general cluelessness -- rather than a criminal referral.

The big news is that in response to the report, and its call for the appointment of a criminal prosecutor to pursue the case further than the Justice Department's internal investigations could, Attorney General Michael Mukasey today appointed Nora R. Dannehy, a career prosecutor currently acting as U.S. attorney in Connecticut, to oversee such a probe. And that means further pressing the White House, which repeatedly refused the Justice Department investigation teams' requests for interviews and documents.

From the report's conclusion:

"The most serious allegations that arose were that the U.S. Attorneys were removed based on improper political factors, including to affect the way they handled certain voter fraud or public corruption investigations and prosecutions. Our investigation found significant evidence that political partisan considerations were an important factor in the removal of several of the U.S. Attorneys.

"However, we were unable to fully develop the facts regarding the removal of Iglesias and several other U.S. Attorneys because of the refusal by certain key witnesses to be interviewed by us, as well as by the White House's decision not to provide internal White House documents to us. Therefore, we recommend that counsel specially appointed by the Attorney General work with us to conduct further investigation and ultimately to determine whether the totality of the evidence demonstrates that any criminal offense was committed."

The lack of White House cooperation with the internal DOJ investigation was brazen. According to the opening chapter of the report, top White House aides "including White House Counsel Harriet Miers, Assistant to the President and Deputy Chief of Staff and Senior Advisor Karl Rove, Deputy White House Counsel William Kelley, and Associate White House Counsel Richard Klingler, declined our request to interview them."

Investigators for the Inspector General's Office and Office of Personal Responsibility "requested and received documents from the White House showing communications between the White House and outside persons and entities, including the Department of Justice, related to the removal of the U.S. Attorneys. However, the White House Counsel's Office declined to provide internal e-mails or internal documents related to the U.S. Attorney removals, stating that these documents were protected from disclosure because, according to the White House Counsel's Office, such material 'implicate[s] White House confidentiality interests of a very high order . . . ' The White House did not formally assert executive privilege as grounds for withholding the material from us, but asserted that its 'internal communications . . . are, in our judgment, covered by the deliberative process and/or presidential communications components of executive privilege in the event of a demand for them by Congress.'"

And there's more. Astonishingly enough, the results of an internal White House investigation -- which were provided to the Justice Department's Office of Legal Counsel and to then-attorney general Gonzales early last year -- were nevertheless denied to the DOJ's internal investigators. The report states that associate White House counsel Michael Scudder interviewed Justice and White House personnel in early 2007 at the request of White House Counsel Fred Fielding. "[W]e requested that OLC produce a complete copy of the final Scudder memorandum and all drafts of the memorandum. OLC declined to produce the document, stating that the White House Counsel's Office directed it not to do so. . . .

"The White House Counsel's Office eventually provided to us a heavily redacted version of the document, but the redactions made the document virtually worthless as an investigative tool. We disagree with the White House's rationale for withholding this document, particularly since the document was shared with OLC and e-mail records also show that drafts had been provided to former Attorney General Gonzales. We also disagree with the White House Counsel's Office decision not to provide us White House internal documents related to the U.S. Attorney removals and, as we discuss below, believe it hindered our investigation."

The good news for the White House, however, is that all this is happening today -- rather than 18 months ago, when the internal investigation began. Since the next investigation will inevitably take months if not years, the stonewall has effectively worked. Nothing will happen while Bush is still in office.

All this despite the facts that, as the report makes clear, the idea of firing U.S. attorney originated in the White House, no one within the Justice Department has been able to provide a persuasive explanation for why several of the names showed up on the firing list, and the White House aides who just might possibly be in a position to resolve the mystery insist on remaining silent.

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