Article — From the March 2008 issue
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Article — From the March 2008 issue
The American system of democracy has many defenses, and the Bush Administration overcame each of them in turn. It was not enough simply to control the bureaucracy. High officials as well had to understand that their function was not to enforce the law but rather to express the will of the president. The next step, then, would be to discipline the U.S. attorneys.
The U.S. attorneys serve ninety-three judicial districts and report directly to the attorney general. They prosecute all criminal cases brought by the federal government and defend all civil cases in which the United States is a party. In that there are so few of them, they are almost uniquely powerful, akin to members of the Senate. They are appointed by the president and by tradition serve a minimum of four years. This tradition was upended when Attorney General Gonzales, on Bush’s authority, sacked seven U.S. attorneys on December 7, 2006. No explanation was given at first, and the maneuver itself was made possible only by an obscure provision in the 2005 reauthorization of the USA PATRIOT Act.
The case of Albuquerque U.S. Attorney David Iglesias makes clear the thinking behind the firings. Iglesias was born in Panama, where his father belonged to an indigenous tribe. He financed his law-school education by joining the Navy and becoming a JAG officer, and he first appeared on the public scene in connection with a highly unusual court-martial at Guantánamo that later furnished the plot for the Aaron Sorkin play A Few Good Men. (The Iglesias role was played in the film version by Tom Cruise.) In 1998, Iglesias was narrowly defeated by Democrat Patricia A. Madrid in a bid to become New Mexico’s attorney general. When the Republicans came to power in Washington, though, Iglesias was recognized as a rising star and quickly appointed as a U.S. attorney.
For five years, Iglesias achieved distinction for his work as a prosecutor, but in 2006, as the midterm elections approached, things turned very sour. New Mexico is one of the dozen states in which national elections are decided. In 2000 the state went for Gore. In 2004 it went for Bush. In both elections the margin of victory was paper-thin and highly disputed. And Iglesias, like other U.S. attorneys, was expected to push aggressively against “voter fraud.” Iglesias did so and was recognized for his efforts. In 2004 he reacted to Republican complaints about a highly effective voter-registration program run by a grassroots activist organization, ACORN, by creating a special task force of FBI agents and prosecutors to fully investigate the allegations. He was selected for the faculty of the Justice Department’s October 2005 Voting Integrity Symposium, at which more than a hundred prosecutors were trained in handling fraud cases. But that wasn’t enough.
Iglesias says that he received a series of odd calls in October 2006. The first was from Congresswoman Heather Wilson, who was locked in a close contest with her Democratic challenger in the upcoming midterm election. The second call was from Republican Senator Pete Domenici, the powerful longtime chair of the Senate Budget Committee. Iglesias later described the exchanges in a New York Times op-ed column, headlined “Why I Was Fired”:
Ms. Wilson asked me about sealed indictments pertaining to a politically charged corruption case widely reported in the news media involving local Democrats. Her question instantly put me on guard. Prosecutors may not legally talk about indictments, so I was evasive. Shortly after speaking to Ms. Wilson, I received a call from Senator Domenici at my home. The senator wanted to know whether I was going to file corruption charges—the cases Ms. Wilson had been asking about—before November. When I told him that I didn’t think so, he said, “I am very sorry to hear that,” and the line went dead.
Why was the timing of this indictment so important? Domenici, who was seventy-five and nearing retirement, had a protégée and possible successor in Congresswoman Wilson. But Wilson was then locked in a tough battle with (of all people) Patricia A. Madrid, then serving her second term as New Mexico’s attorney general and looking to move onto the national stage. Wilson had based her campaign against Madrid around the idea that Madrid had been ineffective in combating corruption in New Mexico’s state government. The indictment would therefore have provided exactly the kind of attack-ad fodder Wilson needed. Iglesias’s decision to adhere to proper procedure denied her that boost. Even so, Wilson pulled out a narrow win. (She is now running for Domenici’s Senate seat.)
Had Iglesias indicted the Democrat, he would have violated his ethical obligations as a prosecutor and committed a felony. Instead, he held rigorously to the rules, which forbid a U.S. attorney from manipulating prosecutions in order to attempt to affect election contests. But in the Bush Administration, putting fidelity to the law ahead of the G.O.P.’s election efforts was a career-ending move. New Mexico’s Republican Party chairman, Allen Weh, complained about Iglesias to Rove, according to McClatchy Newspapers, and Rove said: “He’s gone.” This was a fairly significant breach of tradition, though, and it took some persistence. The Albuquerque Journal reported that Domenici asked Gonzales to fire Iglesias, but Gonzales refused. Domenici then met with President Bush, who made the final call.
The other U.S. attorneys fired in December have similar stories to tell. Paul Charlton of Phoenix had pursued investigations involving two Republican lawmakers. Dan Bogdan of Las Vegas had been looking into charges against a Republican congressman then running for governor. Seattle’s John McKay had failed to rally to the side of the G.O.P. in a recount controversy and had not pursued the “voter fraud” scam with sufficient vigor. San Diego’s Carol Lam was handling a highly embarrassing fraud investigation focusing on senior political appointees at the CIA as well as two Republican congressmen. But even more troubling is the case of several U.S. attorneys who were preliminarily listed for removal but then retained. Two of them—Milwaukee’s Steve Biskupic and Dunnica Lampton of Jackson,
Mississippi—brought politically charged corruption indictments involving Democrats during an election cycle, clearly with the intention of directly influencing the elections for the benefit of the G.O.P. Each secured a conviction, though Biskupic’s case was subsequently overturned in an extraordinary opinion of the Court of Appeals, the key word of which was “preposterous.” Lampton’s prosecution, which targeted Mississippi’s largest Democratic donor, is now on appeal.
Both Biskupic and Lampton received a reprieve—they could continue serving as U.S. attorneys—thereby reminding us that it is not the terminated U.S. attorneys who should be a subject of concern as much as it is those who were kept on.
More from Scott Horton:
Six Questions — October 18, 2014, 8:00 pm