No Comment — January 25, 2008, 5:49 am

A Political Prosecution Goes Under the Microscope

Has the Bush Justice Department used the criminal justice system to punish its political adversaries all across the country? As the countdown begins to the end of the Bush Administration, abuse of the criminal justice system is finally coming into focus.

Within the Justice Department itself, the Office of Professional Responsibility and the Inspector General are conducting a joint investigation into the case of the “Gonzales Eight,” namely the firing of eight U.S. attorneys on December 7, 2006. Preliminary inquiries by Congress produced the resignation in disgrace of most of the senior leadership of the Justice Department, including Attorney General Gonzales. Now we hear that Alberto Gonzales has “lawyered up” — for good reason. The internal probe will, I am told, demonstrate a stunning pattern of management of political prosecutions out of the White House. Karl Rove himself figures at the center of the process. And George W. Bush will put in more than a couple of key appearances in the process before this drama has been played out. The internal probe has already assembled explosive evidence of precisely this sort of abuse in its examination of the dismissal of New Mexico U.S. Attorney David Iglesias. And the inquiry has barely begun to address the parallel facts in Phoenix, San Diego, Seattle, Las Vegas and Little Rock. I will be discussing all of this in much greater detail in a feature article which will appear in a couple of weeks. Stay tuned.

But let us shift the scene for a moment to the Detroit area. As I have noted many times, the far more troubling cases involve not the U.S. attorneys who were dismissed, but the U.S. attorneys who kept their jobs through a process of quiet participation in the political shenanigans which will be the hallmark of the Bush Justice Department. Last year a Justice Department source suggested I keep a close eye on the prosecution of Geoffrey Fieger, a high-flying trial lawyer associated with Democratic causes and campaigns, who became an object of ridicule and attack by George W. Bush personally. This helped make him into a “marked man.” The alleged crime–which gives rise to an allocation of millions of dollars in federal prosecutorial resources, and which most people will be very surprised to hear is a crime–comes from a simple set of facts. Fieger allegedly raised campaign money for presidential candidate John Edwards. When his own employees gave money, he allegedly gave them bonuses or other payments to reimburse them for their donations. Yes, if he did it, it would be illegal. Nothing to compare with the sort of violent crime which transpires almost every day in Iraq and Afghanistan, such as the gang rape of Jamie Leigh Jones, to which the Bush Justice Department turns a totally blind eye, of course. Still, I for one believe that it should be aggressively pursued—by the FEC, which usually levies strong fines for this sort of thing. But that’s not what happened here. And there’s one question everyone who’s looked at this case keeps in the back of his mind: if Fieger had been raising money for the Bush-Cheney campaign instead of a Democrat, would he have been investigated and prosecuted? The answer to that question is increasingly obvious.

Although nothing about the Fieger case is anywhere near what should happen in a criminal investigation, it does fit a nationwide pattern. When trial lawyers backing Democrats are involved, the mundane campaign finance review process is converted into a Holy Crusade of retribution. There are at least a half dozen cases like this one in which the same heavy-handed techniques are being used. This case has involved two attorneys general, dozens of FBI agents (one who says he was hauled back from Iraq to work on it), and a small army at the U.S. attorney’s office. Most observers who have taken a look at this case have come to the same conclusion that a Justice Department figure suggested to me: this is not a prosecution. It is a political vendetta. Its objective is not to enforce campaign finance rules, but rather to squelch fundraising by Democrats. It is an assault on the democratic process, driven by an abuse of the criminal justice system.

Now as it turns out, using the office of U.S. attorney to wage a political vendetta is a crime under sections 1505 and 1512 of the Criminal Code. In fact, it’s a far more serious crime than the allegations brought for campaign finance violations. That’s why there’s an outside chance that this case may end up as a criminal matter, but with a reversal of expectations for some of the prosecutors involved. Of course, I don’t expect to see a process of accountability begin until after next January.

Whenever charges of political motivation and selective prosecution are raised, the Justice Department raises the drawbridge and mans the battlements. It issues pious, indignant and largely misleading or at least not verifiable statements to defend itself. But at this point the cases are simply too numerous and the facts too smelly. The time has come to put the Justice Department’s claims to a careful test and to lift the veil of prosecutorial immunity that now seems to be cloaking something quite wicked.

This at least seems to be close to what the judge presiding over the Fieger case has concluded. Judge Paul D. Borman issued a thirty-page opinion yesterday. He made clear he is not in the least satisfied with the implausible explanations the Justice Department has been offering up for its actions. And he spends some time documenting the mischief they’ve been up to. Judge Borman:

The Court finds significant that from the initiation of the federal investigation in April 2005, the state judicial re-election campaign of former U.S. Attorney, now Michigan Supreme Court Justice, Stephen Markman was involved in this investigation. Specifically on April 13, 2005, when Eric Humphries, a former Fieger employee, walked into Detroit FBI offices and provided information that launched this investigation, he alleged campaign violations by Defendants Fieger and Johnson with regard to the 2004 Federal Edwards for President campaign, and the state reelection campaign of Michigan Supreme Court Justice Markman. The local Assistant U.S. Attorney (“AUSA”) who initiated this investigation, Lynn Helland, chief of the Special Prosecutions Unit, stated that the instant prosecution is the first such local federal election criminal case he had seen during his 25 year career. The instant case is not the usual federal criminal prosecution because it relates to activity – political contributions – recognized by the Supreme Court as protected by the First Amendment.

What the judge doesn’t elaborate on, but is a matter of common knowledge in the Detroit community: Fieger is well known for his aggressive work opposing U.S. Attorney Stephen Markman’s candidacy for the Michigan Supreme Court. The circumstances in which the Fieger prosecution began provide an extremely unseemly appearance of political retaliation under cover of the criminal justice process. And this is only the beginning. Borman goes on to note a long series of gross irregularities in the way the matter was handled by the prosecutors. For instance, as I noted, this is a regulatory matter which is usually managed by the FEC. How did it get into the hands of the local U.S. attorney’s office?

The local AUSA’s failure to preliminarily contact the DOJ Public Integrity Section before beginning an investigation, removed the option of the DOJ initially consulting with the FEC prior to the investigation, and coordinating enforcement from the beginning between FEC and DOJ. Indeed, there has been no coordination of efforts between the DOJ with the FEC. The prosecutors acknowledged at a hearing, that the first contact in this case with the FEC was initiated by Defendant Fieger’s counsel.

The explanations again are evasive and unsavory. But the judge then comes to focus on another extremely significant series of facts:

The timeline regarding the eventual recusal of the top three officials of the Detroit U.S. Attorneys’ office is significant. This local investigation began in April 2005; the top three officials did not immediately recuse themselves from the case. The request to the DOJ for consideration of recusal did not occur until seven months later, in November, 2005. During that seven month period, the case investigation was ongoing, including grand jury proceedings. In response to the Court’s questions as to why the three principals did not immediately recuse themselves from the case, AUSA Helland stated that he could not answer the question without getting into information which he did not believe should be disclosed.

Again, the standard response: when backed into a corner, stonewall. In a display of unseemly arrogance that could only fuel the fires of suspicion, the prosecutor repeatedly refused to answer the judge’s direct inquiries into these matters.

The court in this case showed the government extraordinary patience in trying to get to the truth. It’s pretty clear that the court’s good will was abused. The judge has therefore given the Government seven more days to explain its highly irregular conduct, including why the U.S. attorney and his two senior-most deputies recused themselves from the cases—after being involved with it intensely for many months. The facts already at hand strongly suggest that they knew the conduct of their office was highly unethical from the outset and that they sought to protect themselves and their careers by recusal after the case was well launched. The Justice Department doesn’t want to give up this information. But the interests of justice require it.

What’s at stake in this case? Robert H. Jackson reminded us in his speech “The Federal Prosecutor” that our society can never tolerate a situation in which prosecutors investigate individuals rather than crimes. When this occurs, the basic principles of our criminal justice system are subverted and the nation is put on the path towards tyranny. The damage is compounded when a prosecutor uses his vast powers, held under a public trust, to attack his political enemies. But all signs point to this being the case in Michigan, like other cases in Alabama, Mississippi, Georgia and Wisconsin. The assault in the Michigan courtroom is not on attorney Geoffrey Fieger. It is on the bedrock principles of our criminal justice system.

In fact the pattern of politically-instigated investigation, prosecution and recusal in this case perfectly matches the Siegelman case in the Middle District of Alabama, in which the Justice Department continues tenaciously to fight FOIA requests and even the document production demands of the United States Congress. At this point it is plain that the Justice Department is not guided by policies and principles in its posture, but by an earnest resolve to keep hidden the dark truths that an entire nation now suspects and which will come to the front burner as soon as the results of the Department’s own investigation into the misconduct of Attorney General Gonzales become public. It’s time to shine a bright and sanitizing light down the crevice of these prosecutions and let the truth be known.

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