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Tales From The Department Of Justice

cafeconleche.jpgThis keeps up, and I'm going to need more coffee.  Michael Isikoff and Evan Thomas have quite the interesting article in Newsweek, but it requires a closer read because there is some connect the dots that needs to be done and several points where obvious information is, inadvertantly I'm sure, omitted where it is very important to know it in order to fully understand the quote and/or the particulars.  Thought I'd walk through the article a bit and show you what I mean.

So consider these scenes from March 2004, described by two former top Justice officials who, like other ex-officials interviewed by NEWSWEEK, did not wish to be identified discussing sensitive internal matters. Attorney General John Ashcroft is really sick. About to give a press conference in Virginia, he is stricken with pain so severe he has to lie down on the floor. Taken to the hospital for an emergency gallbladder operation, he hallucinates under medication as he lies, near death, in intensive care. On the night after his operation, he has two visitors: White House chief of staff Andrew Card and presidential counsel Alberto Gonzales. As described in public testimony, they want Ashcroft to sign a document authorizing the government's top-secret eavesdropping program to go on. The attorney general, who thinks the program is illegal, refuses.

Back at the Justice Department, there is an equally extraordinary scene. Appalled by the White House's heavy-handed attempt to coerce the gravely ill attorney general, virtually the entire top leadership of the Justice Department is threatening to resign. The group includes the director of the FBI, Robert Mueller, Associate Attorney General Robert McCallum and the chief of the Criminal Division, Chris Wray. Some of them gather in the conference room of Deputy Attorney General James Comey, who describes Ashcroft's bravely turning away the president's men from his hospital bed. The mood that night in the conference room was tense—and sober. "This was a showdown," says a former senior Justice Department official who was there. "Everybody understood the choice they were making and the gravity of the situation. Everybody knew what the stakes were." A different source estimated that as many as 30 top DOJ officials would have resigned.

The next day Comey is summoned to the White House to meet with President Bush. The details remain murky. But it takes two weeks before a compromise is reached—averting the spectacle of mass resignation by putting more legal controls on the eavesdropping program.

Well, isn't THAT interesting, if accurate? Not only was there a threat of mass resignations at the DOJ, according to the article, once the WH end-run of the FISA court was learned about — which suggests that the WH actions on this were closely held among Presidential cronies until this showdown with Ashcroft and Comey at the hospital blew that out of the water among the professional class at the upper echelons of the DoJ and the FBI. But wait, there's more:

Under oath (and given immunity from prosecution), she seemed shy and a little overwhelmed, more Rosemary Woods than Madame Defarge, although she never got rattled or resorted to histrionics. Wringing her hands beneath the witness table, she acknowledged that she may have improperly used political considerations to choose career prosecutors. "I crossed the line," she said, taking a deep breath, a Christian girl who succumbed to temptation. Carefully prepared by a shrewd lawyer, John Dowd, she suggested, almost in passing, that Gonzales may have crossed another line by discussing with her his account of how the U.S. attorneys were fired. The implication was that Gonzales had been subtly trying to coach her testimony. "I just thought maybe we shouldn't have that conversation," she said.

If Goodling's testimony helps to bring down Gonzales, a distinct possibility, President Bush will be exposed to more questions and dragged into a messy confirmation battle over Gonzales's successor. And so Goodling, like Nixon's unfortunate secretary Rosemary Woods, may be destined to be a footnote in history—but an important one.

Goodling admitted checking the political donations of some job applicants before hiring them for jobs that are supposed to be apolitical. While crass, her actions did not threaten to bring down the re-public. Still, they are part of a broader and more troubling picture—a slow and stealthy erosion of the independence of the Justice Department. President Bush's personal involvement remains uncertain, as does the precise role of his chief political adviser, Karl Rove. Nonetheless, the clearest evidence of legal subversion comes not from congressional Democrats, but from once loyal Bush conservatives who worked at the Justice Department.

This is not, nor has it ever been, a partisan issue. This is about wrong and right — and what the folks who have attempted to subvert the justice department to a political machinations branch did not count on is that people who truly believe in the justice system will not sit back silently forever and watch. The question that keeps coming up, over and over, in my mind is this: the loyal Republicans who are coming forward now are the sort of people, in at least several cases to my knowledge, who would have come forward at the first signs of problems, at least to others in the GOP who might have had some influence to demand changes.

Coming forward to, say, the chairmen of the Senate and House Judiciary Committees with their substantial concerns. Except, at the time this was all occurring, who they had to depend on to then turn around and perform their constitutional duty of oversight were Arlen Specter and James Sensenbrenner. And, as Sensenbrenner opened his yap to brag in last week's Goodling hearing, he didn't find anything worthy of issuing a subpoena over for accountability questions of the Bush Administration during his tenure in the power chair at the House. Say hello to accountability and integrity in the Age of Bush.

And then there is this:

Yoo was increasingly seen as a rogue operator inside the Justice Department. Officials were suspicious of his ties to David Addington, counsel to Vice President Cheney. The vice president's office took a hard-line view that the executive branch should not be trammeled in the war on terror by legislators and bureaucrats. Yoo was "out of control," recalled a former Ashcroft aide. Almost without exception, this conflict stayed behind closed doors. (Yoo declined to respond on the record, but he has told others that Ashcroft was fully briefed by him and approved his memos, and that his critics are now engaged in creative "Monday-morning quarterbacking.")

The bad feelings seemed to come to a head in 2003, when there was a vacancy to head OLC. At the White House, Gonzales wanted Yoo, and was so insistent that he took the matter to Bush. According to the former Ashcroft aide who did not want to openly discuss matters involving the president, Bush was surprised to learn that Ashcroft opposed Yoo as a renegade. A compromise was reached: a conservative lawyer named Jack Goldsmith was put in charge of OLC.

But the fight was really just beginning. Carefully reviewing Yoo's carte blanche memos, Goldsmith became convinced that the Justice Department had been signing off on memos approving initiatives, like wiretapping and water boarding, that were not legally supportable. Goldsmith took the matter to Ashcroft's deputy, Comey, and to Patrick Philbin, Comey's No. 2. Philbin's sterling conservative legal résumé tracked Yoo's—they had both clerked for Justice Clarence Thomas at the U.S. Supreme Court. But Philbin and Goldsmith were adamant. The Justice Department could no longer sign off on the wiretapping program, which had been expanded to wiretap more U.S. residents. "This was not ideological," recalled a former Ashcroft aide. "This was about the difference between pushing the limits to the edge of the line and crossing the line."

Bush's role has remained shadowy throughout the controversy over the eavesdropping program. But there are strong suggestions that he was an active presence. On the night after Ashcroft's operation, as Ashcroft lay groggy in his bed, his wife, Janet, took a phone call. It was Andy Card, asking if he could come over with Gonzales to speak to the attorney general. Mrs. Ashcroft said no, her husband was too sick for visitors. The phone rang again, and this time Mrs. Ashcroft acquiesced to a visit from the White House officials. Who was the second caller, one with enough power to persuade Mrs. Ashcroft to relent? The former Ashcroft aide who described this scene would not say, but senior DOJ officials had little doubt who it was—the president. (The White House would not comment on the president's role.) Ashcroft's chief of staff, David Ayres, then called Comey, Ashcroft's deputy, to warn him that the White House duo was on the way. With an FBI escort, Comey raced to the hospital to try to stop them, but Ashcroft himself was strong enough to turn down his White House visitors' request.

The morning after the scene at Ashcroft's hospital bed, the president met with Comey. "We had a full and frank discussion, very informed. He was very focused," Comey later testified, choosing his words carefully. But it wasn't until Bush had met with Mueller that the president agreed to take steps (still unspecified, but probably involving more oversight) to bring the eavesdropping program back inside the boundaries of the law. Mueller has never said what he told the president, but it is a good bet that he said he would resign if the changes were not made. Bush could not afford to see Mueller go, nor could he risk losing the rest of the Justice Department leadership over a matter of principle in an election year.

The confrontation over the eavesdropping program "seared" the relationship between the White House and Ashcroft's team at Justice, according to a former senior Justice official. Within months, many of the top officials had resigned or started making plans to do so. Solicitor General Ted Olson was the first to go that summer. On Election Day 2004, Ashcroft—sensing that he would not be asked to stay for a second term—personally wrote his letter of resignation, and Bush promptly tapped Gonzales to replace him. Comey announced his resignation the next summer.

It is telling that the plans that Rove had for the Department of Justice couldn't even be stomached by a conservative operative and ideologue like Ted Olsen, isn't it? Did President Bush force his aides into the sickroom of his Attorney General to try and force his delerious and medicated hand to sign-off on a program he had already informed him was illegal? And, if so, how sickened are you now?

But it is this particular part of the article that really pissed me off. It suggests that sly slip-in of so-called balance, without any regard to honesty on the facts or full disclosure to the public, and it is incredibly sloppy in an otherwise straightforward piece.

Goodling's only crime was her lack of subtlety, said Mark Corallo, the Justice Department's chief of public affairs under Ashcroft, and Goodling's onetime boss. "She probably was a little too overt about it," Corallo told NEWSWEEK. "But let's face it—the Democrats do this, too, they all do it. The idea that career employees are above politics is total crap. The so-called career employees are mostly liberal Democrats." He noted that in the U.S. Attorney's Office in San Francisco, career employees refused for months to hang portraits of Bush, Cheney and Ashcroft.

Still, there were some former Justice officials who took a loftier view. One of them was Comey. Every day, he told the House Judiciary Committee, prosecutors must argue cases before juries of all political stripes; if they are seen as little more than political apparatchiks, it will be the death knell for many legitimate cases. To him, the charge that prosecutors were being picked for their politics was the "worst" allegation he had heard yet about the Justice Department. "If that's what was going on," he said, "that strikes at the core of what the Department of Justice is." Or was.

Morak Corallo is and always has been a PR flack and political operative for the Republican party. He was primarily an official at the DOJ doing PR for them, not having substantial prosecutorial or investigative responsibilities. And using him as a public rebuttal quote gives him a legitimacy that he has neither earned nor deserves in terms of constitutional or legal commentary. Further, he has been and remains a PR flack for Karl Rove, who has a substantial interest in how the DOJ story is spun publicly, given that his fetid fingerprints are all over the behind-the-scenes aide machinations eminating from his office in the WH.

That Isikoff and Thomas don't even bother mentioning this is beyond lazy. Worse, they slip in the snotty "some former Justice officials who took a loftier view," insinuating as they have previously on the attempted portrayal of Pat Fizgerald as a "boy scout" that there is something downright quaint about officials at the Department of Justice demanding that the rule of law be upheld.  Perhaps it was meant to be a comparison in tone and, if so, Corallo does come off as quite the crass GOP aparatchik who would justify any piss poor conduct by blaming someone else for doing it first.  But the double entendre potential on this pissed me off.

Hello, fellas, it is the Department of Justice. Of course they want the rule of law to be followed to the letter — that is their job. Just because you have some jaded view from wading through the sewer that is the Beltway doesn't mean that the rest of the folks who spent a lifetime working their asses off outside that stinking gutter don't still remember that the Constitution, the Bill of Rights and the laws of the land are more than simply pieces of paper to be brushed aside when they are deemed to be inconvenient or in the way of a good faux monarchy beachhead.

The fact that even conservatives are running away from the Bush-tainted DoJ in droves, and refusing to be considered for positions either at the Department itself or as USAs ought to be of great concern to all of us.  (H/T TPM.)  Prosecutions for criminal conduct must be undertaken with seriousness, and where positions remain unfilled, the communities that are meant to be served suffer.  Everywhere.  After reading through all of this, and considering that Rep. Conyers has asked for more testimony from Moschella and McNulty, and has expressed concerns about testimonial veracity questions about AG Gonzales as well, I can only say: more of this openness from folks who are fed up and disgusted, please. It is about damned time — because only full and complete sunshine on all of this is going to save the DoJ. 

(Photo of some tasty looking cafe con leche y napolitana via Proggie.)

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Christy Hardin Smith

Christy Hardin Smith

Christy is a "recovering" attorney, who earned her undergraduate degree at Smith College, in American Studies and Government, concentrating in American Foreign Policy. She then went on to graduate studies at the University of Pennsylvania in the field of political science and international relations/security studies, before attending law school at the College of Law at West Virginia University, where she was Associate Editor of the Law Review. Christy was a partner in her own firm for several years, where she practiced in a number of areas including criminal defense, child abuse and neglect representation, domestic law, civil litigation, and she was an attorney for a small municipality, before switching hats to become a state prosecutor. Christy has extensive trial experience, and has worked for years both in and out of the court system to improve the lives of at risk children.

Email: reddhedd AT firedoglake DOT com