So Much Spin, So Little Time, Part I: Firing The US Attorneys

Even some master counter-spinners are dizzy after a flurry of outrageous scandals one on top of another and somehow -- MSM? Anyone? -- obliterating each other in favor of important stories like Bush asks for patience on anniversary of Iraq war. The cold blogger, pressed for time as usual, has wanted to counterspin the wingnut talking points on several national issues lately, but tick tick tick ... In other words, it was great to see this Editorial Observer piece from Adam Cohen in the New York Times: It Wasn’t Just a Bad Idea. It May Have Been Against the Law.

The Bush administration has done a terrible job of explaining its decision to fire eight United States attorneys. Story after story has proved to be untrue: that the prosecutors who were fired were poor performers; that the White House was not involved in the purge. But the administration has been strangely successful in pushing its message that the scandal is at worst a political misdeed, not a criminal matter.

It is true, as the White House keeps saying, that United States attorneys serve “at the pleasure of the president,” which means he can dismiss them whenever he wants. But if the attorneys were fired to interfere with a valid prosecution, or to punish them for not misusing their offices, that may well have been illegal.

In law schools, it is common to give an exam called the “issue spotter,” in which students are given a set of facts and asked to identify all the legal issues and possible crimes. The facts about the purge are still emerging. But based on what is known — and with some help from Congressional staff members and Stephen Gillers, a law professor at New York University — it was not hard to spot that White House and Justice Department officials, and members of Congress, may have violated 18 U.S.C. §§ 1501-1520, the federal obstruction of justice statute.

Some crimes that a special prosecutor might one day look at:

1. Misrepresentations to Congress.
The relevant provision, 18 U.S.C. § 1505, is very broad. It is illegal to lie to Congress, and also to “impede” it in getting information. Deputy Attorney General Paul McNulty indicated to Congress that the White House’s involvement in firing the United States attorneys was minimal, something that Justice Department e-mail messages suggest to be untrue.

Attorney General Alberto Gonzales made his own dubious assertion to Congress: “I would never, ever make a change in a United States attorney position for political reasons.”
...
2. Calling the Prosecutors.
As part of the Sarbanes-Oxley reforms, Congress passed an extremely broad obstruction of justice provision, 18 U.S.C. § 1512 (c), which applies to anyone who corruptly “obstructs, influences, or impedes any official proceeding, or attempts to do so,” including U.S. attorney investigations.

David Iglesias, the New Mexico United States attorney, says Senator Pete Domenici, Republican of New Mexico, called him and asked whether he intended to bring indictments in a corruption case against Democrats before last November’s election. Mr. Iglesias said he “felt pressured” by the call. If members of Congress try to get a United States attorney to indict people he wasn’t certain he wanted to indict, or try to affect the timing of an indictment, they may be violating the law.

3. Witness Tampering.
18 U.S.C. § 1512 (b) makes it illegal to intimidate Congressional witnesses. Michael Elston, Mr. McNulty’s chief of staff, contacted one of the fired attorneys, H. E. Cummins, and suggested, according to Mr. Cummins, that if he kept speaking out, there would be retaliation. Mr. Cummins took the call as a threat, and sent an e-mail message to other fired prosecutors warning them of it. Several of them told Congress that if Mr. Elston had placed a similar call to one of their witnesses in a criminal case, they would have opened an investigation of it.

4. Firing the Attorneys.
United States attorneys can be fired whenever a president wants, but not, as § 1512 (c) puts it, to corruptly obstruct, influence, or impede an official proceeding.

Let’s take the case of Carol Lam, United States attorney in San Diego. The day the news broke that Ms. Lam, who had already put one Republican congressman in jail, was investigating a second one, Mr. Sampson wrote an e-mail message referring to the “real problem we have right now with Carol Lam.” He said it made him think that it was time to start looking for a replacement. Congress has also started investigating the removal of Fred Black, the United States attorney in Guam, who was replaced when he began investigating the Republican lobbyist Jack Abramoff. Anyone involved in firing a United States attorney to obstruct or influence an official proceeding could have broken the law.

Much more needs to be learned, and Senator Patrick Leahy, the Vermont Democrat who leads the Judiciary Committee, has been admirably firm about insisting that he will get sworn testimony from Karl Rove and other key players. It is far too soon to say that anyone committed a crime, and it may well be that no one has. But if this were a law school issue spotter, any student who could not identify any laws that may have been broken would get an “F.”

Thanks to Adam Cohen for a little bit of counterspin on an issue that's been spinning too hard for too long.