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Another Audacious Whitewash at DOJ

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The Associated Press reports that the Justice Department’s two-year-long internal criminal probe into the U.S. attorney’s scandal has closed without bringing criminal charges. As usual, the Department waits for the dog days to deliver its report, hoping no one will pay it any attention.

The Bush administration’s Justice Department’s actions were inappropriately political, but not criminal, when it fired a U.S. attorney in 2006, prosecutors said Wednesday in closing a two-year investigation without filing charges.
The decision closes the books on one of the lingering political disputes of the Bush administration, one that Democrats said was evidence of GOP politics run amok and that Republicans have always said was a manufactured controversy.
Investigators looked into whether the Bush administration improperly dismissed nine U.S. attorneys, and in particular New Mexico U.S. Attorney David Iglesias, as a way to influence criminal cases. The scandal added to mounting criticism that the administration had politicized the Justice Department, a charge that contributed to the resignation of Attorney General Alberto Gonzales.

It wasn’t just Gonzales, actually: the scandal forced the resignation-under-a-cloud of the top four figures in the Department. Now they can all sleep safely, and Gonzales may even be able to get a job practicing as an attorney again.

The DOJ criminal review didn’t exonerate Gonzales and his team–far from it. The Justice Department’s letter to the Judiciary Committee explained that they clearly engaged in improper conduct, but it focused on an absence of clear-cut evidence that would make out a criminal case. That’s curious. In a series of high-profile public-integrity prosecutions brought by the Bush Justice Department–those against Alabama Governor Don Siegelman, Mississippi attorney Paul Minor, and Georgia Senate Minority Leader Charles Walker, for instance–prosecutors also acknowledged they lacked the direct evidence to make out their case in full. But they said the facts were enough to allow jurors to decide for themselves, based on inference, whether corrupt motives were in play. When the tables are turned on the Bush Justice officials who drove those very decisions, we discover that the evidentiary bar has been dramatically raised.

The investigation was also marked by a process of blindering, driven by the Justice Department itself, but without any apparent pushback from Nora Dannehy, the Bush-appointed U.S. attorney in Connecticut tapped by Attorney General Mukasey to handle the probe. Rather than look at the entire U.S. attorneys scandal, Dannehy settled on a probe of a single case: that involving New Mexico U.S. Attorney David Iglesias. This is the one case in which the available evidence showed that the decision was taken by President Bush himself, in the White House. The cast of characters included Karl Rove, New Mexico Senator Pete Domenici, and New Mexico Congresswoman Heather Wilson. Executive privilege was invoked to block any meaningful investigation of what happened inside the White House, and a number of Bush officials declined to cooperate with the investigation, which explains why Dannehy could not find “sufficient evidence.”

The probe should have examined the entire pattern of terminations as a common scheme and taken it as a basis for action. Instead, other related cases were–as I am informed by persons involved in them–shunted off to the Justice Department’s “roach motel,” the Office of Professional Responsibility, where they will likely languish without any serious investigation, much less any action.

Nora Dannehy’s decision to take no action, coupled with all the lame rationalizations of inaction that preceded it, is another self-administered bullet wound to the integrity of the Justice Department. It makes clear that the Department has a well-honed double standard. There is one standard applied by the Department’s Public Integrity Section to political figures of the party out of power (whether Democrats or Republicans, doesn’t really matter). Minor indiscretions and fundraising gaffes will be prosecuted as crimes, usually under the “honest-services fraud” statute, using standards that three Supreme Court justices recently ridiculed as lacking any intellectual or political integrity. Conduct by Justice Department political appointees that is comparable or still worse, however, will simply be fluffed off—sometimes after lengthy internal probes designed to create the appearance that the Department takes the matter seriously. How can a Justice Department hold its own personnel to a lower standard under the law than they hold other public officials? This is a formula for disaster. Dannehy’s decision not to proceed is an open invitation to future administrations: the White House is free to manipulate the Department for political purposes, and Justice Department officials are free to lie to Congress.

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