No Comment — February 2, 2008, 2:26 pm

Hide and Seek With the Justice Department

Judgments are in on Michael Mukasey’s debut before the Senate Judiciary Committee as attorney general—from the senators, their staffers, the media and the public. Mukasey did not get a passing grade, though he outperformed his two predecessors. He arrived in Washington with a promise of a new more open and correct relationship with Congress, and a restoration of ethical standards and morale at the Department. He has made some important adjustments which should not be dismissed—for instance, removing a number of figures from the Civil Rights Division who had been caught red-handed in political skullduggery, restoring the traditional barriers that impeded White House manipulation of the criminal justice process, and giving a couple of important speeches on policy points that redefined the Department’s mission somewhat, moving it slowly back towards its old moorings.

“Fredo” Gonzales was an enormous embarrassment to the institution and the nation. Two attorney generals were convicted of felonies, and Fredo has not been indicted yet, so he may avoid the judgment of being the worst attorney general in U.S. history. But he will in any event feature as a lead contender for that honor. Gonzales appeared before Congress repeatedly, always looking uncomfortable, rarely able to articulate candid or even coherent responses. Gonzales is a living demonstration of the Bush hackocracy, a person installed solely because of his political predictability and fidelity, and far below the minimum competence levels that the post of attorney general commands.

Bad as Mukasey’s own performance was, he looked very good when compared with Gonzales. But Mukasey’s shortcomings were of an entirely different nature. He is plainly not a person whose abilities are beneath the role of attorney general—few attorneys general in recent memory have had credentials quite so clearly qualifying, and his intellect is plainly superior. The problem with Mukasey is that he fully comprehends the mess that has been made of the Justice Department and he understands that the positions it has taken on important legal issues are not intellectually defensible and are therefore best guarded as close secrets. His approach may include fixing some of the most egregious shortcomings. But his major focus is not on repair, but rather on hiding the problems from the public eye and blocking the road to any meaningful Congressional probe. A key signal came when, only a few weeks on the job, he suggested his hostility to a probe on the grounds that it would “damage the reputation of the Department.” And he was clearly right about that. At this point, pulling back the curtain and exposing what has been done for six years will be damaging. But it’s also inevitable, and the act of blocking investigations will only heighten public suspicions about the rot that is setting in at Justice.

Nothing in my mind demonstrates quite so clearly the internal corruption at the Justice Department as the massive political campaign operation launched by U.S. Attorney Alice Martin in Birmingham. Martin has lined up ten indictments of prominent Democrats or figures close to the Democrats which she has decided to release bit by bit as needed to help her party in its declared goal of taking over the Alabama legislature by 2010. In a by-election conducted in one lily white, staunchly Republican district just north of Birmingham, the Republicans were intent on a pick-up, but they had their rear ends handed to them when voters went overwhelmingly for a Black Democrat over a carefully selected Republican rising star. Martin had secured her indictment of Democratic legislator and retired civics teacher Sue Schmitz on January 9, and held this indictment in reserve to release at the most opportune moment. The drubbing the Republicans suffered in the race in Cullman County provided just the need, since by arresting Schmitz, she drove the stories about the embarrassing Republican defeat off the front pages and replaced it with a story with her established theme of “corrupt Democrats.” But the fact that an almost purely white constituency in Alabama would send a black man to the legislature is dramatic news. It provides evidence that the traditional politics of race and fear which have had Alabama in their grips since Reconstruction are giving way to something new. There are plenty of other signs too: the odds are strong that Alabama Democrats will support Barack Obama for president in a couple of days, and the new figure emerging as the leader of the party is a black former prosecutor.

Michael Mukasey promised that any prosecutor caught using his office in a political manipulation would be immediately fired. Well, it happened, and Alice Martin is still at her desk. And what makes it doubly interesting is that Martin has now been under investigation for several years for perjury in connection with legal proceedings (Update, April 22, 2008: Harper’s was informed on April 17, 2008 that the perjury investigation against Alice Martin was concluded on November 28, 2007, with a finding by the Department of Justice Office of Professional Responsibility that Alice Martin “did not commit professional misconduct or exercise poor judgment.” More information on the OPR’s findings is available on this site.). How does a prosecutor who makes false statements under oath continue to serve as U.S. attorney? That’s another of the many unexplained mysteries surrounding the operations of the Justice Department in Alabama. A recently retired senior Justice figure told me a few days ago that the upper echelons of the Department were “not embarrassed, but mortified” by the antics of the prosecutors in Montgomery and Birmingham, but he also said “they don’t want to think about it or look into it.” The promise that Mukasey brought was that this “let’s sweep it under the carpet” attitude would disappear, but there is still no evidence of action on that promise. And that leaves us all wondering whether the attitude of those at the top in Washington isn’t in fact to condone and support the use of the prosecutor’s office for political shenanigans.

But there are plenty of other points that suggest that Mukasey the reformer has given way to an attorney who sees his role as a criminal defense lawyer, protecting the White House and its abuses at all costs.

Assault on the Press
I remember many years back sitting in Michael Mukasey’s office and discussing with him some measures to help our client, a newspaper, secure information that the government was trying to keep under wraps. He favored an aggressive posture to help secure information for the public, and he had a very forward posture on First Amendment issues generally. Of course, lawyers advance the interests of their clients, and an attorney general should perform his duties as a high officer of the government. The “client” the attorney general serves is the United States, not the president or an individual named George W. Bush. But Michael Mukasey the attorney general appears to see his role in simpler and suspiciously clientist terms, namely as the implementer of Bush Administration policy—he seems reluctant to advocate any revisiting of that policy. The positions he laid out in the last two months on press issues reflect straight-line continuity with his predecessors, and a confrontational attitude towards the press. Where, we can ask, is the independent First Amendment advocate Michael Mukasey who was once a friend to the Fourth Estate?

The clearest evidence of this so far comes in the decision to issue a grand jury subpoena to the New York Times’s Jim Risen, to compel him to disclose a confidential source. This matter has tremendous political overtones, since the course the Justice Department is now charting is pretty much what the Neocon corner aggressively advocated—as you will recall, Bill Kristol said that the New York Times should be subjected to criminal charges for printing the story that blew the lid off the FISA scam. (The Times’s response was simple: they offered Kristol a job, making him the unworthy successor of the inestimable William Safire).

But it turns out that Justice is not after Risen’s material on unwarranted surveillance or anything else published by the New York Times. Instead, they want the confidential sources that Risen used in his 2006 book State of War, and in particular, one chapter in which he describes a botched effort to infiltrate the Iranian nuclear program. This difference is critical, because it suggests that the focus of the criminal probe is to stem information which is embarrassing because it reveals incompetence in the work of the intelligence community.

Back in the year immediately after World War I, Max Weber wrote his classic study of the role played by a pervasive regime of state secrecy that the German war cabinet and the politico-military leadership imposed. Weber never doubted the need for secrecy surrounding military systems and plans in wartime, but he showed very clearly how the obsession for secrecy spun out of control insuring that the governmental and public discussions were badly informed, producing a stream of disastrous decisions. But most significantly, he focused on one kind of secrecy obsession: the desire to hide mistakes and miscalculations from public knowledge in order to protect the incompetent bureaucrats who made these mistakes. Understanding and correcting mistakes is essential for success, and, indeed, weeding out those who continuously make mistakes that reflect incompetence is, too. It strikes me that the effort to force Risen to speak falls squarely into the trap that Weber described. It is designed to shield the incompetent and their failures by preventing their mistakes from being known publicly. But a democratic society requires exactly this sort of information for informed debate and decision-making. There are very few “equities” in such cases that weigh in support of the enforcement of secrets.

The American public has been served and the debate over the Bush Administration’s catastrophic conduct of the War on Terror has been enriched by Jim Risen’s work, which has consistently reflected the highest journalistic standards. Is this entire process pay back? Does it really serve the public interest? It’s hard for anyone on the outside to form a final opinion on that question, but I would at least express strong skepticism about what the Justice Department is undertaking here. It looks and smells like retribution against a journalist who has done his job to a high and exacting standard and has embarrassed the Government. In fact, it’s very difficult to discern anything but that.

Compensating the Victims
The Bush Justice Department has engaged in a number of blatantly political prosecutions. One was already ascertained in an internal probe. My understanding is that a pending Inspector General investigation has reached the same conclusion in another case in which it confirmed Karl Rove’s intervention and involvement, and that it is looking at several more. And one of them was ascertained by a Court of Appeals decision, by a unanimous, all-Republican panel of the Seventh Circuit, which in fact labeled a prosecution, which produced a conviction and was before them on appeal, with a stinging one-word rebuke. They called it “preposterous.” The Appeals judges ordered the immediate release of the prisoner after hearing the case, not even waiting for the issuance of an opinion. This was the case of Georgia Thompson, a Wisconsin civil servant, who was prosecuted by the U.S. Attorney in Milwaukee with the evident purpose of helping the Republican candidate for governor get a leg up during the election. Moreover, the U.S. Attorney had previously been on Karl Rove’s list of prosecutors to fire, and after this and some other highly suspect cases, his name disappeared off the list. The facts speak for themselves, a lawyer might say.

Yesterday, the Milwaukee Journal-Sentinel reports, the Wisconsin Senate voted unanimously to compensate the victim of the political prosecution. This follows the precedent established in 1801 by Thomas Jefferson, who asked Congress to compensate the victims of political prosecution by the Federalist Government from 1798-1800, after he pardoned them. My sense is that this is the first of a substantial number of cases in which the politically-motivated abusive prosecutions of the Bush Administration will be overturned and the victims will be compensated out of the public purse.

But there are some open questions coming out of this affair. One is that U.S. Attorney Steven Biskupic, who brought the case, continues in his job as U.S. Attorney in Milwaukee. How is this possible? In fact, it appears that the Justice Department’s Office of Professional Responsibility and Office of Inspector General have never even opened a probe into the matter, notwithstanding the quite extraordinary slapdown handed down by the Court of Appeals.

Conyers Prepares for Round II
Mukasey’s appearance before the Senate Judiciary Committee will shortly be followed by an appearance before the House Committee. The House is taking a stronger focus on the politicization of the Justice Department. In a letter from Committee Chair John Conyers sent to Mukasey on January 31, we get a preview of the issues which will be raised. Conyers asks what steps Mukasey has taken to come through on his promise to depoliticize the U.S. attorneys offices. I suspect that the names Alice Martin and Leura Canary are going to come up several times in this process, since they provide the most brazen examples of use of the prosecutorial machinery for political guttersniping today. The letter also asks for an explanation of why Brian Roehrkasse banned Talking Points Memo after they ran a series of pieces flagging his dissemination of falsehoods. It asks a series of follow-ups on Mukasey’s unforthcoming testimony about waterboarding and torture before the Senate.

But the heart of the Conyers inquiry goes again to the grossly irregular prosecution of former Alabama Governor Siegelman, who now sits in prison in Louisiana as the Bush Administration’s most prominent political prisoner. He reminds Mukasey of Senator Schumer’s unanswered queries into the Siegelman case and Mukasey’s promise, still unfulfilled, to look into it. Since that time, Congressional queries about irregularities surrounding the treatment of Siegelman and the prosecution out of Leura Canary’s office have gotten a routine back-of-the-hand brush off from Justice. Now Conyers is demanding that Mukasey appear before the Committee fully briefed and prepared to answer questions about the Siegelman matter.

I think I can venture a guess as to how Mukasey will handle this when his day under the lights appears. I believe that the Siegelman case will get the “waterboarding” treatment—that is, Mukasey will refuse to say anything about it. What was done to Siegelman is no less reprehensible than the torture policies which Justice officially blessed and continues to sustain. In fact, they are two aspects of the same thing—a view that the president is præses lupus–that he stands above the law, and is accountable to no one, least of all to Congress.

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