No Charges in U.S. Attorney Firings: Not All Dirty Politics Is Criminal
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.Obstruction of justice charges were also found wanting:
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.
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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