No Comment — October 13, 2007, 8:16 am

Chicago Court Orders Discovery of DOJ Political Prosecutions

In civil litigation connected to one of a substantial number of federal prosecutions of campaign funding of contributors to Democratic candidate John Edwards, a federal court has directed the Department of Justice to submit to discovery to ascertain whether improper political motivations stood behind its management of the case. The litigation, entitled Beam v. Gonzales, questions the actions of former Attorney General Alberto Gonzales and Federal Elections Commission chair Robert Lenhard in going after a group of Edwards fundraisers. At the time of the actions taken, Gonzales was counsel to George W. Bush and was heavily (and improperly) involved in shaping and directing Department of Justice prosecutions, and the head of the Federal Election Commission (FEC) was Michael Toner. Before his appointment, Toner was Chief Counsel to the Republican National Committee, and prior to that Toner served as General Counsel of the Bush-Cheney Transition Team and General Counsel of the Bush-Cheney 2000 Presidential Campaign.

Senior Republican operatives appear to have targeted John Edwards early in the process of the 2004 presidential election as the most likely Democratic nominee and opponent of the Bush-Cheney reelection effort; extensive efforts were apparently launched within both FEC and DOJ to go after Edwards’s campaign funding resources, with a particularly ferocious focus on trial lawyers. At the same time, the Justice Department took quite extraordinary steps to camouflage its conduct, for fairly obvious reasons—it was sensitive to the potentially adverse consequences for the Bush Administration and its re-election efforts that would result from the disclosure of its use of the machinery of the criminal justice process to attack a political adversary.

But the camouflaging may have been driven by even darker motives. Evidence recently provided by a Republican attorney deeply involved in a gubernatorial campaign in Alabama provides the most explicit evidence so far of how schemes like the attack on the Edwards donors were coordinated and implemented. In connection with the probe of the politically motivated prosecution of former Governor Don E. Siegelman in Alabama, Dana Jill Simpson, an attorney right in the middle of G.O.P. campaign efforts in the state, describes here how Karl Rove manipulated criminal investigations by calling senior DOJ officials to direct the allocation of resources to target certain matters.

Q: Okay. And did Rob give you the name of the person at — I’m just going to call it Public Integrity — that he thought he understood Karl Rove had spoken to?

A: No, he said it was the head guy there and he said that that guy had agreed to allocate whatever resources, so evidently the guy had the power to allocate resources, you know.

Q: To the Siegelman prosecution?

A: Yes. And that he’d allocate all resources necessary.

Improper White House manipulation of criminal justice machinery took a consistent form: political appointees, acting on White House instructions, would “allocate resources” and “deny resources.” When Rove wanted people “taken out,” copious resources—FBI investigators and prosecutors—would be allocated to concocting a case. When Rove wanted to shield Republican operatives who came under suspicion, federal prosecutors would be fired, transferred, retired or reassigned with regularity. The so-called U.S. Attorneys scandal is one manifestation of this process, but in fact it is reflected in a consistent pattern of dealings that stretch back to the beginning of the Bush Administration.

Papers filed in the Beam case provide further evidence of how the scheme was surreptitiously carried out. It appears that Justice Department lawyers involved in the scheme improperly issued subpoenas to financial institutions designed to collect information on campaign fundraisers for Edwards. The subpoenas were marked with a legend saying that their existence was to be treated as a secret. Since the subpoenas were issued in violation of federal laws protecting the secrecy of information by financial institutions, one has to suspect that this extraordinary step was taken because the Justice Department officials involved knew their conduct was unlawful and sought to obscure that fact by avoiding detection. In any event, the existence of the subpoenas was not a fact entitled to protection. The prosecutors also invoked grand jury secrecy requirements as a reason for maintaining secrecy, a contention which is sure to raise eyebrows in light of the aggressive leaking of grand jury materials in a wide array of political prosecutions. More likely, the prosecutors were extremely anxious to insure that the full breadth of the scheme targeting the Edwards campaign be kept out of public knowledge.

The stench surrounding these prosecutions is enormous and one particular passage of the plaintiffs’ brief stands out to me:

Gonzales personally authorized a small army of nearly 100 federal agents to raid a law office and simultaneously raid the homes of its employees and their families. Indeed, one agent commented about how he had been flown in from Iraq to help find out why American citizens had made contributions to the John Edwards campaign.

This is extremely telling. As Robert Jackson warned, prosecutorial abuse rarely takes the most obvious form. It generally will appear to be far more subtle.

he will pick people that he thinks he should get, rather than pick cases that need to be prosecuted. With the law books filled with a great assortment of crimes, a prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost anyone. In such a case, it is not a question of discovering the commission of a crime and then looking for the man who has committed it, it is a question of picking the man and then searching the law books, or putting investigators to work, to pin some offense on him.

The FBI agent’s comment is very telling. As the headlines teach us, American security contractors in Iraq have been implicated in enormous crimes, including murder, assault, rape, kidnapping and extortion. In a contractor population of 180,000 for three years the Justice Department, which has direct responsibility for law enforcement, has failed to bring a single prosecution for violent crime. And instead one of the few FBI investigators assigned to Iraq is brought home to America to terrorize people involved in raising campaign funds for Administration opponents. This tells you as clearly as possible what the priorities of the officials directing this case were. They have nothing to do with preserving the integrity of the federal elections process. Rather just the opposite. They are employed to assail political opponents and provide unfair advantage to the Republican Party and its candidates. This is morally corrupt and repugnant.

These prosecutions are beyond simply abusive. They may well have crossed the threshold into criminal conduct. The Judiciary Committee needs to secure Michael Mukasey’s commitment that he will appoint a special prosecutor to investigate how these cases came to be asserted and take appropriate punitive action against those responsible. The wrongdoers here are not the career prosecutors and FBI agents who have front line responsibility for the cases—they are playing the roles assigned to them. The wrongdoers will attempt to hide behind career personnel. The wrongdoers are the political operatives and political appointees who are criminally misusing the criminal justice system.

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