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Mukasey & Dannehy May Come Through

Let’s not allow the financial news overshadow an important development in D.C. that may actually work to hold the Bush Administration accountable for equally threatening damage done under this Administration’s watch…

  • Emily Berman
October 2, 2008

AG photoBetter late than never, as they say. America’s economic free-fall and the related drama surrounding the on-again-off-again bailout package has all but eclipsed other breaking stories. But, let’s not allow the financial news overshadow an important development in D.C. that may actually work to hold the Bush Administration accountable for equally threatening damage done under this Administration’s watch. This week, Attorney General Michael Mukasey at last concluded that grave allegations of partisan motivation behind the forced resignations of several federal prosecutors in late 2006 must be followed to their conclusion. The efforts to get to the bottom of this issue might just succeed.

This week, the Justice Department’s internal watchdog issued yet another scathing report, which found that the process that led to the dismissal of 9 U.S. Attorneys was “fundamentally flawed;” and that the explanations offered “by the Attorney General and other Department officials about the reasons for the removals were inconsistent, misleading, and inaccurate.” The report also noted “significant evidence that political partisan considerations were an important factor in the removal of several of the U.S. Attorneys.”

In other words, the report corroborates some of the worst suspicions surrounding the US Attorney firings: The Bush Administration fired nine U.S. Attorneys for partisan reasons and then lied about it.

But despite the best efforts of Justice Department investigators, “there are gaps in [the] investigation because of the refusal of certain key witnesses”—Karl Rove, Harriet Miers, William Kelley, Monica Goodling, Senator Pete Domenici and his staff—"to be interviewed. . . . In addition that White house would not provide us internal document s related to the removals of the U.S. Attorneys."

So just as the House and Senate Judiciary Committees concluded when issuing subpoenas to Harriet Miers, Joshua Bolten, and Karl Rove, real answers to the questions about politically motivated hiring decisions at Justice lie in the White House.

Attorney General Michael Mukasey this week appointed Nora Dannehy, Acting United States Attorney from Connecticut as a special prosecutor to investigate whether criminal charges should be brought against former Attorney General Alberto Gonzales or others involved in the firings.

The question arises: why is a special prosecutor likely to succeed where other efforts have failed thus far?

The answer concerns the whereabouts of the information sought. The gaps the Justice Department referred to in its report mirror gaps in Congress’s investigations into the matter and, the information needed to fill these gaps resides within the White House. And the White House has systematically thwarted all efforts to discover why prosecutors were, in fact, fired and who made the decisions to let them go.

Polite inquiries have, like congressional contempt citations, proven futile—presidential advisors refuse to cooperate with either Justice Department investigators, or congressional committees, and the enforcement of congressional subpoenas have been stymied by claims of executive privilege. The courts have thus far roundly rejected the executive’s efforts to evade judicial review of these baseless privilege claims, but the law regarding assertions of executive privilege by the President in response to congressional investigations is underdeveloped. It’s not clear whether the courts would ultimately decide that Congress’s right to the information outweighs the President’s right to keep it secret.

Enter the special prosecutor. The law makes plain that a prosecutor’s need for information trumps a claim of executive privilege. This means that the special prosecutor might succeed in forcing Miers, Rove, and company to testify. She might succeed in obtaining copies of emails and documents that circulated among White House staff as well as between the White House and the Justice Department.

This latest report confirms, for at least the third time, that the Justice Department improperly—and possibly unlawfully—carried out the forced removals of several U.S. Attorneys. It confirms that the President’s immediate advisors were intimately involved. And it confirms that complaints by Republican activists and political officials regarding the handling of voter fraud and public corruption cases seem to have led to the removal of at lease one of the prosecutors.

We already know that hiring decisions at the Justice Department crossed the line into partisan activism. We have waited far to long to discover the true extent to which the Bush Administration perverted the Justice Department to serve its partisan ends. The Justice Department investigators should be commended for their efforts. Congress should continue to press its own investigation. And now that she has been given the mandate, the special prosecutor should quickly and aggressively pick up the baton where Congress and the Inspector General were forced to put it down: at the White House door.