No Charges in U.S. Attorney Firings: Not All Dirty Politics Is Criminal

It's over. After 22 months, the Justice Department has sent a letter to the House Judiciary Committee stating no criminal charges will be brought as a result of the firing of 9 U.S. Attorneys during the Bush Administration.

Special counsel Nora Dannehy, who conducted the DOJ investigation (not to be confused with the earlier Inspector General and OPR investigation) recommended no charges, and Attorney General Eric Holder has accepted it. In the letter (available here, it takes a few minutes to load):

Associate Attorney General Ronald Weich said Gonzales made "inaccurate and misleading" statements about the firings. The report also said Gonzales' chief of staff, Kyle Sampson, also made misleading statements. But the report by Dannehy concluded there was "insufficient evidence to establish that persons knowingly made material false statements" or tried to obstruct justice.
As Committee Chair Rep. John Conyers points out, this is not an exoneration. The investigation found both Gonzales and Kyle Sampson made misleading and inaccurate statements. [More...]

"Similarly, the letter does not conclude that administration officials testified truthfully to Congress on this subject. Indeed, the letter reaffirms DOJ’s prior finding that Alberto Gonzales and Kyle Sampson made ‘inaccurate and misleading’ statements. Despite coming to this conclusion, however, it concludes only that there was insufficient evidence to make the legal showing needed for a criminal case.
Mostly the letter addresses the allegations pertaining to former U.S. Attorney David Iglesias and actions by former Sen. Peter Domenici to have him removed.
Ms. Dannehy, together with other prosecutors and agents of the Federal Bureau of Investigation (the investigative team), sought and obtained all documents noted as relevant by OIG/OPR as well as many additional documents. They questioned over 60 individuals, including those individuals OIG/OPR described as potentially having relevant information. The White House, under former President George W. Bush, fully cooperated with the investigation.

The investigative team determined that, based on the evidence already developed by OIG/OPR and Congress, as well as the additional evidence developed through the criminal investigation, that evidence did not demonstrate that any prosecutable criminal offense was committed with regard to the removal of David Iglesias. The investigative team also determined that the evidence did not warrant expanding the scope of the investigation beyond the removal of Iglesias. Additionally, the investigative team determined that there was insufficent evidence to show that any witness made prosecutable false statements to either Congress or OIG/OPR, or corruptly endeavored to impede a congressional inquiry.

Obstruction of justice charges were also found wanting:
The evidence did not support charges under the Omnibus Clause of § 1503. There was insufficient evidence that former Senator Pete V. Domenici, other New Mexico Republicans, persons in the White House, or anyone at DOJ attempted to prospectively influence Iglesias's actions. The weight of the evidence established not an attempt to influence but rather an attempt to remove David Iglesias from office, in other words, to eliminate the possibility of any future action or inaction by him.
More on Domenici:
Likewise, the evidence did not show that anyone sought Mr. Iglesias's removal in order to replace him with a United States Attorney who would act in a manner aimed at influencing the due administration of justice. Although Senator Domenici's motive for seeking Iglesias's removal were in part politically motivated, a public official does not violate the law by seeking the removal of a United States Attorney for his failure either to pursue a particular case the official believes is legitimate or to pursue certain types of cases the official believes should be brought, even if the public official's motives are partisan and inconsistent with the values of DOJ.
Another criticism that didn't amount to criminal conduct:
Ms. Dannehy and her investigative team also concluded that DOJ leadership never determined whether the complaints about Mr. Iglesias were legitimate and that the fact that the investigation of the complaints about Iglesias's performance never occurred bespeaks undue sensitivity to politics on the part of DOJ officials who should answer not to partisan politics but to principles of fairness and justice. While the actions of DOJ leadership were contrary to DOJ principles, they were not intended to and did not influence or in any way impede voter fraud prosecutions or a particular public corruption case.
On the false statements:
The Report concluded that then Attorney General Gonzales made a "series of statements after the removals" that were "inaccurate and misleading." Report at 341. Similarly,OIG/OPR noted that Kyle Sampson made various misleading statements about the United States Attorney removals to the White House, Congress, and other Department officials. !d. at 347. The investigative team focused on the statements referenced in the Report as well as other statements made by not only Mr. Gonzales and Mr. Sampson but also other DOJ officials. Based on a consideration of all the evidence and the legal standards, Ms. Dannehy concluded that there was insufficient evidence to establish that persons knowingly made material false statements to OIG/OPR or Congress or corruptly endeavored to obstruct justice.
The letter concludes with the limitations on the investigation:
In this instance, Ms. Dannehy, a long time career prosecutor, was asked only to assess the possible criminality of the actions described in the OIG/OPR report, to conduct such additional investigation as necessary to make that assessment, and to determine whether anyone made prosecutable false statements to Congress or OIG/OPR.
Dannehy was appointed by former AG Michael Mukasey.

My views: I'm okay with this. The main reason is I know and respect Ron Weich who is no pawn. He's not a career prosecutor. He's a straight shooter and smart as a whip. If the case isn't there, it's not there. No one should be charged with a crime if the evidence isn't there to prove it.

The U.S. Attorney's job has always been a political plum. They are appointed as a result of their political connections, so why is it surprising that they are fired for the same reasons? Politics is a dirty business, but there's a difference between politics and crime. When the Justice Department believes it cannot prove a crime beyond a reasonable doubt, it has no business bringing criminal charges.

There's been far too much attention to this episode, in my view. I would have much preferred the House Judiciary Committee and Justice Department to have spent the resources investigating allegations of Bush officials' complicity in torture than the firing of U.S. Attorneys.

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    I know what you mean (5.00 / 3) (#3)
    by ruffian on Thu Jul 22, 2010 at 05:38:57 AM EST
    They walk right up to the edge of the law, ruin lives, and walk away laughing. I'm pretty sure that even if all the resources had been used to investigate torture, they would find the same thing. There will be something that makes what they did legal. I have no faith in our ability to bring those in power to justice anymore.

    not going to stop trying though, you are right about that too.

    Oh please (5.00 / 1) (#4)
    by jimakaPPJ on Thu Jul 22, 2010 at 08:10:48 AM EST
    Does anyone here remember Clinton's wholesale firing of 93???

    Guess it depends on whose Ox is being gored.

    apples and oranges (5.00 / 1) (#7)
    by Jeralyn on Thu Jul 22, 2010 at 08:46:26 AM EST
    it's traditional and expected for the 93 to be replaced when a new administration comes in, especially when it's a different party.

    These 8 or 9 were individually targeted in mid term.


    No one is saying the POTUS can't fire AGs (5.00 / 2) (#8)
    by Yman on Thu Jul 22, 2010 at 09:11:36 AM EST
    But there's a few major differences, primarily the political reasons for the firings:

    1.  USA Iglesias was fired after being pressured to expedite a corruption investigation of state Democrats by Sen. Pete V. Domenici (R-NM) and Rep. Heather Wilson (R-NM).  Sampson then allowed DOJ officials to falsely testify before Congress that the WH had little involvement, and that his firing was "performance related".

    2.   USA McKay was fired after refusing to pursue allegations of voter fraud in the 2004 Washington state gubernatorial race, despite the fact that his office found no evidence of voter fraud.

    3.  "[m]ass firings of U.S. attorneys are fairly common when a new president takes office, but not in a second-term administration." The article added that "Justice Department officials acknowledged it would be unusual for the president to oust his own appointees."  Link

    Why is this distinction important?  Because politically motivated firing (and subsequent lies about claims of sub-standard performance) threatens the independence and objectivity of the DOJ.  

    legal experts and former prosecutors say the firing of a large number of prosecutors in the middle of a term appears to be unprecedented and threatens the independence of prosecutors.

    Of course, no one really needs "legal experts" to explain the reasons for that, and this doesn't even touch on all of the lies and mistatements from Gonzales, Sampson and the Bush Whitehouse.


    Guess i have; (none / 0) (#5)
    by dead dancer on Thu Jul 22, 2010 at 08:27:09 AM EST
    Now on with the goring!

    Part of previous (none / 0) (#6)
    by dead dancer on Thu Jul 22, 2010 at 08:28:16 AM EST
    Todays America is quite a bit different from 93 wouldn't you say?

    If you want to say (none / 0) (#13)
    by jimakaPPJ on Thu Jul 22, 2010 at 09:37:13 AM EST
    right and wrong is relative, just say it.

    But that doesn't make it true.


    I will say it .. (none / 0) (#30)
    by nyrias on Thu Jul 22, 2010 at 04:50:34 PM EST
    there is no right and wrong in politics. There is only winning and losing, looking good and looking bad.

    Those who think otherwise risks the perils of losing.


    You are correct (none / 0) (#38)
    by jimakaPPJ on Fri Jul 23, 2010 at 08:02:28 AM EST
    But that has nothing do with right been right and wrong being wrong.

    That doesn't change.


    and completely ... (none / 0) (#43)
    by nyrias on Sat Jul 24, 2010 at 10:46:44 AM EST

    The other side believes you are wrong, as strongly as you believe they are.

    What matter is who gets thing done and who is winning.


    Jim, seriously (none / 0) (#10)
    by jbindc on Thu Jul 22, 2010 at 09:28:40 AM EST
    This has been explained ad nausuem about how it's fairly typical at the start of a new president's term (especially when there is a party switch). Reagan did it too.

    Look, I think sometimes you get piled on around here for dumb things because people just want to disagree with you.  But when you make it easy by making comments like this, I just have shake my head.  Save your ammo for when you have a real argument - not a made up one that can be discredited in three seconds.


    jbindc (none / 0) (#12)
    by jimakaPPJ on Thu Jul 22, 2010 at 09:35:39 AM EST
    While I appreciate your advice, it isn't news to me.

    As for this instance, no wrong was found yet we are supposed to accept that this was all evil, or more evil I guess, than the routine politics we saw by Clinton and now see by Obama.


    Not true (none / 0) (#15)
    by jbindc on Thu Jul 22, 2010 at 09:53:27 AM EST
    Gonzales and Samson made many misleading and inaccurate statements.  Translation - they lied,

    Like saying there was (none / 0) (#17)
    by jimakaPPJ on Thu Jul 22, 2010 at 10:12:55 AM EST
    no pressure from the WH???

    Now, who has just claimed that.. ??


    Hang on a second...the letter did NOT state (5.00 / 2) (#27)
    by Anne on Thu Jul 22, 2010 at 03:07:10 PM EST
    that no charges would be brought with respect to the firings of 9 US Attorneys; it said charges would not be brought in the case of the firing of David Iglesias.  Period.

    But as Mary - from Marcy Wheeler's place - writes, the report does provide a really nice road map for any Senator who might want to get a non-cooperative USA fired in the future.

    Here's a link to the letter itself, which should make clear that this was not just "mostly" about Iglesias - it was "all" about Iglesias.

    And here's the heart of Mary's take on the letter and the investigation that sums up pretty well, I think, what the letter really says:

    Stripped and shorn, Holder and Dannehy have said -

    1. We aren't gonna investigate anything but Iglesias and we aren't saying why:  "The investigative team also determined that the evidence did not warrant expanding the scope of the investigation beyond the removal of Iglesias."

    WHAT EVIDENCE? They freakin didn't expand the scope of the investigation to see what evidence there was, then they decide, oh well, we don't have any of the evidence we didn't look for so we shouldn't look for it since we don't have it ... whatever.

    2. Hey, yeah, Domenici DID make a contact to smack on Iglesias about the handling of a matter currentily in front of the USA's office but:   "The evidence about the call developed in the course of Ms. Dannehy's investigation, however, was insufficient to establish an attempt to pressure Mr. Iglesias to accelerate his charging decisions."

    So similar to the lack of intent to torture - I mean, if Domenici in good faith thought he was just gathering intel on the status of political prosecutions ... um, let's move on.  

    1. Instead of trying influence Iglesias, Holder and Dannehy think that Domenici just got Iglesias fired for not pursuing political bias in his prosecutions. "The weight of the evidence established not an attempt to influence but rather an attempt to remove David Iglesias from office, in other words, to eliminate the possibility of any future action or inaction by him."

    2. This, they say, is fine. Seriously. They say there's nothing DOJ can do about it. It's no problem for politicians to get DOJ lawyers fired for not being political lapdogs. But to be fair, they then finish up by saying both, "In closing, it is important to emphasize that Attorney General Holder is committed to ensuring that partisan political considerations play no role in the law enforcement decisions of the Department" and (bc that wasn't really the closing after all) "The Attorney General remains deeply dismayed by the OIG/OPR findings related to politicization of the Department's actions, and has taken steps to ensure those mistakes will not be repeated."

    HUH? They've just said it is perfectly legal for politicians to get USAs who won't do their political bidding fired by covert contacts with the WH, but Holder is  "committed" to ensuring partisan political considerations play no role at DOJ? WTH?  I guess if you put those two concepts together and held them in your mind for long, you'd end up committed too.

    5. Anyway, they pull all of this off by giving a Bybee-esque review of "18 U.S.C. § 1503 [that] punishes anyone [at least, anyone the DOJ selectively decides to prosecute] who `corruptly . . . influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice." It's a simple thing - according to Holder and Dannehy,  Domenici didn't try to "influence" Iglesias, he just had Iglesias fired.   Which obviously isn't an attempt to obstruct or impede.  I mean, there's nothing that doesn't impede a case like getting the prosecutor handling it fired.  

    They also explain to us that they can't go after Domenici for trying to get, then getting, Iglesias fired - at least, not under 18 USC 1503, because that section "penalizes only forward-looking conduct." So Domenici would have to be doing something that would involve forward-looking conduct. And after all, as they just said (see 3 above) Domenici wasn't trying "in other words, to eliminate the possibility of any future action or inaction by [Iglesias]." Oh, except for, you know, they actually say in the letter that's exactly what Domenici WAS doing. Trying to affect future action or inaction - in a forward-looking way with his forward-looking conduct.

    Given the detailed and extensive work done by Marcy Wheeler, bmaz and Mary on the US Attorney firings, I don't have any reason to think Mary's take on this "report" isn't spot-on.

    I posted the link to the letter (5.00 / 1) (#37)
    by Jeralyn on Fri Jul 23, 2010 at 01:31:16 AM EST
    and quoted the portions I found significant.

    There are no other DOJ investigations into the firing of the U.S. Attorneys. It's over. No one will be charged. The special counsel is done. The Inspector General is done.

    The House Judiciary Committee can continue to chase it but why would you want them to when there are so many other pressing issues?

    DOJ made a distinction between what is against DOJ principles and what is criminal.

    And, I'm always glad to see the DOJ take a strict view on what constitutes criminal conduct. I've opined here for years that I didn't see the value of pursuing criminal charges here.

    Let's right some of the wrongs the average citizen faces at the hands of the Government and stop worrying about a small group of political appointees.


    Oh, Anne (none / 0) (#28)
    by NYShooter on Thu Jul 22, 2010 at 04:32:02 PM EST
    The Pres calls Holder and says, "Get this Wall Street crap off the front page, will ya? Didn't you get the memo, we're looking forward.......to the next election. Gotta clean up all this past sh!t)

    One company; which one? Oh, let's see: eenie, meenie, miney, mo.....Goldman Sachs! Yeah, O.K.
    Da Bing-Da Bang-Da Boom; Charges, talks, settlement, punishment, hmm, let's see, "hey Trudy, what's the code penalty for blowing up the world?" got it, 3 days trading profits.

    Love your posts; sure saves me a lot of digging. Now some advice from me, your friend: Make sure all guns (if any) in your house are securely locked up, liquor cabinet set to not open before 9p.m., and your psychiatrist's phone # taped to all phone's.

    I know what you're going through, and one day, I hope and pray, you'll find out just how many friends you've got.  


    General crabbiness (none / 0) (#36)
    by bordenl on Thu Jul 22, 2010 at 09:27:19 PM EST
    The reason they can get away with saying that Domenici didn't "impede" is that Iglesias was fired for NOT bringing voter fraud cases. So the replacement person might not find any evidence either, and you might be talking an ideological difference on whether voter fraud cases are real.

    Got it (none / 0) (#1)
    by NYShooter on Thu Jul 22, 2010 at 12:44:43 AM EST
    WE:  Tell a lie....
           "You committed a crime...Go to Jail!"

    They: Give a mis-leading statement
          "Sorry to have bothered you....You may go now."

    If only we knew the rules...  

    Not surprised at all (none / 0) (#9)
    by jbindc on Thu Jul 22, 2010 at 09:18:43 AM EST
    I would have been more shocked if they actually found something and prosecuted.  No administration knows what a future one will find, so it seems to be an unwritten rule -"" "Thou shall not go after former administrations and thou will be spared the same."

    Other way around (none / 0) (#25)
    by jbindc on Thu Jul 22, 2010 at 11:42:37 AM EST
    That the Obama administration won't go after the Bush administration because they don't want the next Republican administration to go after them.

    Well (5.00 / 1) (#32)
    by squeaky on Thu Jul 22, 2010 at 05:50:11 PM EST
    I doubt that that is the case. If anything, going by what happened to CLinton, The Obama WH, does not want to shut down government for the next four years, with political trials.

    There is more important work to do, these days than payback.

    Besides even after wasting what would take years of criminal investigations, grey mail would more than likely win out, and the cases would get closed.

    And who would have egg on their face?  The Democrats.


    good luck on this one (none / 0) (#31)
    by BackFromOhio on Thu Jul 22, 2010 at 05:23:39 PM EST
    We'll see what the next Repub admin goes after

    Can anyone tell me (none / 0) (#11)
    by jimakaPPJ on Thu Jul 22, 2010 at 09:31:39 AM EST
    the name of any other President that replaced all of the AG's??

    There were claims that he did so to disguise the firing of a specific AG who had him and Hillary as targets in an investigation.

    True? I don't know.

    But I do know that in both cases politics was involved. Like I said, it depends on whose Ox is being gored.

    Ronald Reagan (none / 0) (#14)
    by jbindc on Thu Jul 22, 2010 at 09:48:52 AM EST
    Any claims of malfeasance (none / 0) (#16)
    by jimakaPPJ on Thu Jul 22, 2010 at 10:11:16 AM EST
    that he should not have?

    Any claims that he did so to stop an investigation?

    My last on this and then I'll get back to painting the interior of my garage...(us senior citizens lead such exciting lives...)

    It was, is and will be, politics. The Repubs complain when the Demos do it and the Demos complain when the Repubs do it.

    The fact of WHEN it is done is meaningless in this case because nothing was proved, or for that matter, not even enough for an indictment.


    Of course it's politics (none / 0) (#18)
    by jbindc on Thu Jul 22, 2010 at 10:32:31 AM EST
    But you brought up the shocking revelation of Clinton firing 93 US Attorneys at the beginning of his term.  That was different than here, where the allegations were that Bush fired US Attorneys because they weren't pursuing Democrats enough.  See the difference?

    And the allegations re Clinton were?? (none / 0) (#19)
    by jimakaPPJ on Thu Jul 22, 2010 at 11:09:30 AM EST
    No, I don't see any difference.

    The allegation re: Clinton ... (5.00 / 1) (#33)
    by Yman on Thu Jul 22, 2010 at 06:54:27 PM EST
    ... thoroughly debunked, as you are aware.

    When Clinton fired all 93 USAs at the begining of his term (as did Reagan), the Wall St. Journal suggested that Clinton did so to avoid an investigation into Whitewater.  Of course, they neglected to mention the fact that Casey's Republican predecessor, Charles Banks, also refused to investigate Whitewater due to a lack of any evidence of wrongdoing.  And, of course, we all know how the Whitewater investigation ended.

    But if you want to say they're the same, .... okay.  Let's have a $70 Million dollar, 6 year investigation that culminates with GWB being deposed about his sex life.

    Sounds great!


    $80 Million Back Then (none / 0) (#34)
    by squeaky on Thu Jul 22, 2010 at 07:00:47 PM EST
    Which would cost approximately $111,135,75. if you compensate for inflation.

    I didn't say they were found (none / 0) (#39)
    by jimakaPPJ on Fri Jul 23, 2010 at 08:04:25 AM EST
    to be true...

    Neither were these...

    Thanks for making my point.


    Of COURSE they weren't found to be true, ... (none / 0) (#41)
    by Yman on Fri Jul 23, 2010 at 08:38:07 AM EST
    ... particularly since they were nothing more than the speculations of the WSJ and the Wingnut noise machine.  But if you want to treat them the same, let's appoint a special prosecutor and have a $111 Million dollar investigation into these allegations, ending with GWB being deposed about his sex life.

    (crickets) ...

    Thanks for making my point.


    What allegations? (none / 0) (#24)
    by jbindc on Thu Jul 22, 2010 at 11:40:31 AM EST
    Same As Clinton (none / 0) (#42)
    by squeaky on Fri Jul 23, 2010 at 05:18:16 PM EST
    But with a man who was a faux presser. Several sorties in the middle of the night. Remember Gannon/Guckert? For a start...

    Not that his sexual antics were such a surprise.


    Well, it finally makes sense (none / 0) (#23)
    by ruffian on Thu Jul 22, 2010 at 11:38:29 AM EST
    I think the paint fumes have gotten to Jim's brain.

    Alas I must disappoint (none / 0) (#40)
    by jimakaPPJ on Fri Jul 23, 2010 at 08:06:24 AM EST
    latex based paint with the windows and garage doors open..

    All per government mandated standards.

    Good little citizens we be..


    Sherrod's life is NOT ruined. (none / 0) (#29)
    by nyrias on Thu Jul 22, 2010 at 04:48:41 PM EST
    In fact, it may be a turn for the good given all the publicity. The only loser in this game is the WH.

    And you are free to operate in anyway within the confine of the law too. You really shouldn't complain when the other side is playing a better game.

    In fact, the democrats may want to learn from it. If you can't defeat them, join them.

    Not even the Scooter Libby standard (none / 0) (#35)
    by diogenes on Thu Jul 22, 2010 at 08:05:21 PM EST
    Not only no charges for an actual crime but not even charges based on a perjury trap.