Save Gonzales? Blame Sampson

Yesterday was a day for even more apologies and finger-pointing from the Justice Department and a tactical retreat and retrenchment from the man who now (rightly or wrongly) appears destined to be portrayed as the symbol of the ever-evolving controversy surrounding the dimissal of eight U.S. Attorneys last year. And today? Today reckons to be one of the most dramatic yet in this sorry saga as D. Kyle Sampson, Alberto Gonzales' former chief of staff, testifies under oath and in public before Congress about his role in the affair.

Sampson intends to tell Congress, and the rest of us, that the decision by the White House and Justice Department to fire the prosecutors was political after all, and not based upon "job performance" the way most of us would understand the way that phrase is commonly used in the context of employment duties. Political loyalty is fully part of a federal prosecutors "job performance," Sampson argues, so that if a U.S. Attorney isn't up to snuff on partisan grounds he or she is not up to snuff professionally. It's a post hoc attempt to lump together two separate things-- whether a U.S. Attorney is politically obedient to the president who appointed him or her and whether a U.S. Attorney is professionally competent-- so as to make more palatable the odious result here. Congress shouldn't buy it and neither should you.

By arguing that the White House and Justice Department did nothing wrong, and by going before Congress and swearing to tell the truth, Sampson is anointing himself the martyr's role in this mess. Already forced to resign for coordinating the dismissals and then for failing to adequately brief his superiors about how to explain the inexplicable, Sampson is going to try to take the heat and soften the blow for his former boss, Attorney General Alberto Gonzales, whose role in this episode is as befuddling as is his continued presence in office. And if by chance or design Sampson won't accept the martyr's mantle, or if he wavers in it, the Justice Department has another title and part for him to play-- fall guy.

From the Department of Justice yesterday we got a letter of apology of sorts sent to high-ranking Congressional leaders acknowledging an "apparent contradiction" between its early version of events and its current one. At the same time, reports Dan Eggen and Paul Kane of the Washington Post: "The apology was accompanied by newly disclosed internal documents that show that Sampson was the primary author of a letter that contains the faulty claim, which was signed by another Justice official. A draft of the letter was shared with officials in the White House counsel's office before it was sent, the documents show."

So Sampson is the one, if you believe his former colleages at the Justice Department, who tricked the Congress, a tottering defense which still doesn't explain why Sampson's bosses, including the Attorney General and his deputy, Paul J. McNulty, didn't perform any sort of oversight function over this delicate job. Don't you think your boss knows when you are about to get fired? Don't you think your boss plays a role in that decision? Don't you think that your boss has a responsibility to interject himself or herself into that process instead of farming the dirty deed out to a greasy subordinate? Of course. And yet none of these things occured despite the fact that the firings involved eight good men and women who had been chosen by this administration to be the symbols of federal law in their jurisdictions.

So here is my Top Five list of questions for Sampson-- feel free to offer your own in the comments section and I will try to post them later.

Question One: Don't you think the firing in the middle of a term of eight Republican-appointed federal prosecutors warranted the detailed attention and involvement of the Attorney General of the United States? Would the dismissal of U.S. Attorneys on politically delicate grounds constitute a core job function of the nation's top lawyer?

Question Two: if all U.S. Attorneys are constantly subject to a political and partisan loyalty test during theiir terms of office won't that undermine the bedrock principle that federal prosecutors are supposed to be neutral and objective when they carry out their professional responsibilities within their jurisdictions? If we do it your way, won't people simply cry "politics" each and every time a federal prosecutor undertakes an investigation or pushes for an indictment?

Question Three: What historical or legal precedent is there for an administration to fire so many federal prosecutors in mid-term for the reasons you have offered? Did Ronald Reagan's administration do it? Did Richard Nixon's administration do it? And, if not, why has this administation taken it upon itself to chart this new course?

Question Four: To what extent is the "unitary theory" of executive power implicated by these new strategies and tactics the Justice Department and White House are employing with respect to U.S. Attorneys? Why should anyone view this episode as anything different than an attempt by the White House to consolidate executive branch power with the president at the expense of the independence of federal prosecutors?

Question Five: Give us five reasons why Alberto Gonzales' conduct before, during and after this scandal erupted ought to give comfort to his political friends and foes alike that he has the courage, capability and independence to carry out his duties as Attorney General as well as his responsibilities under the Constitution.

Think I'll get any answers? Me neither.

By Andrew Cohen |  March 29, 2007; 9:00 AM ET agag
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For what reasons were the other prosecutors not fired?

Posted by: Chris M | March 29, 2007 09:43 AM

Chris M:

I think they were going to fire them, too, but they ran out of former Rove aides.

Posted by: Jake | March 29, 2007 10:04 AM

A question: We're constantly hearing that the US Attorneys "serve at the pleasure of the President." Does this mean that the Prez actually has to be involved in their hiring and firing, even if just to sign something prepared by DoJ? Or is the Presidential pleasure fully delegated into the hands of the Attorney General or the AG's minions?

Posted by: TexLex | March 29, 2007 10:58 AM

I would think subverting the Department of Justice to adhear to a political agenda in priority over enforcing the laws of the land would be a voiation of the President's sworn duty to defend and uphold the US Constitution. Is this whole sorid affair an impeachable offense??

Posted by: John W. Montgomery | March 29, 2007 12:25 PM

John Montgomery--yes.

An article worth checking out.

http://baltimorechronicle.com/2007/032807Hartmann.shtml

The quick synopsis is that Congress debated the issue of Executive firings on June 17, 1789. The Congress decided to give the president a qualified authority to fire executive staff as necessary. (As you know there is no explicit authority for the officers to "serve at the president's pleasure" in the Constitution).

Madison raises the question of a meritorious and virtuous public officer. In Madison's view firing such an individual without just cause would be grounds for impeachment (how about 5 in the span of 24 hours?).

"I say, will he [the president] bid defiance to all these considerations, and wantonly dismiss a meritorious and virtuous officer? Such abuse of power exceeds my conception."

Worth considering.

Btw, did anyone just notice the Senate GOP kill the Sampson hearing? Very strange.

Posted by: JP2 | March 29, 2007 02:37 PM

I thought the power to dismiss belonged to the President, personally, exclusively. But I don't have a reference at hand to check.
Impeachment is a political act and what's impeachable is a political judgment. I think the President can set priorities he likes if doesn't involve someone performing an unlawful act. The discipline for politically slanted use of that power is political, and is what's happening now (rightly or wrongly, I think somewhat rightly).
This is reminding me of the flap 50+ years ago about the promotion of then-Captain Arleigh Burke to rear admiral. There was a big food fight in the Defense Dept at the time and Burke was an effective supporter of the side that the Secretary of Defense didn't like. The promotion board selected Burke, among others. The SecDef and pals crossed Burke's name off the list before sending it to the White House. (The President nominates all military officers for their commissions and the Senate must consent.) The President's naval aide rightly informed Truman that the law didn't allow the SecDef to do that; the President had the power to ignore the selection board's selections, but the SecDef and underlings did not. Truman cleverly stuffed the list in a desk drawer and did nothing, letting the political fire rage. It soon became obvious that the SecDef had gone too far (I haven't seen it but have heard that the Post ran a scathing editorial about improper political meddling in promotions). After a week or so, the SecDef realized that nothing was going to happen until he went to Truman. And he knew better than to ask the President to fry his own political posterior. So the SecDef was left to say, I have a great idea, let's promote Burke. Presumably Truman managed to say, Great idea, Charlie, sign the papers and get the SecDef out of the room before he started snickering.
Things do work better, usually, when the boss shows up for work. The biggest fault so far evident in this current mess isn't the PR (secondary) or slanted prosecution (because that hasn't really been well substantiated so far) but the apparent fact that the AG isn't actually running the place, and a week or more after everybody noticed, it seemed like he still wasn't running the place. That's the real case for a new AG.

Posted by: WW | March 29, 2007 03:08 PM

Posted by: Judge C. Crater | March 29, 2007 03:27 PM

Judge Crater--they had a 15-20 minute interruption because the GOP pulled some procedural maneuver. (This was a break about 45 minutes to an hour after the committee had returned from lunch during Senator Grassley's questioning).

I'd be curious to know what the reason was.

Posted by: JP2 | March 29, 2007 03:38 PM

WW,

In Madison's comments he states that the practical authority rests with the president (e.g. so that incompetent or corrupt officers wouldn't have to be impeached by congress every time problems arose). But that the authority is not absolute.

The president doesn't have the authority to do whatever he wants with public officers's reputations. The practical effect of firing meritorious and virtuous officer's without a just cause is that their reputation would be damaged--an unforgivable sin in the eyes of many of the Founders.

If you have time I would strongly recommend checking out the June 17, 1789 congressional debate.

Posted by: JP2 | March 29, 2007 03:49 PM

There's a sidebar along with the questioning concerning Goodling's invocation of her 5th Amendment right not to be a witness against herself: whether comment can be made on this in any judicial proceedings.

I believe Leahy had the general rule right early on - comment of any kind on that in a criminal trial of the person invoking the right is prohibited, but an adverse inference may be drawn by a fact-finder in a civil proceeding, even where the "invoker" is a party in that civil proceeding. It's also permissible to put a witness on the stand in a criminal case and ask questions that cause the witness to invoke the 5th, so long as the witness is not a defendant in that case.

This rule also might be parsed differently in specific state jurisdictions. Bottom line is that there are 51 rules about this (federal + 50 states), but in every context but one, I think an adverse inference may be drawn without penalty.

Any thoughts from anybody on this?

Posted by: Alan | March 29, 2007 04:16 PM

Question 6: Was either McNulty or Gonzales providing oversight in your efforts? If not providing oversight, what were they doing at Justice during that time?

Posted by: William Smith | March 29, 2007 04:50 PM

Question 7: Why was Bud Cummins, US Prosecutor in Arkansas, fired? What was the performance-related reason?
Question 8: Were you involved in the selection of his replacement? If not, then who at Justice was?

Posted by: William Smith | March 29, 2007 04:56 PM

Question Eight: You stated several times that part of the problem is the US Attorneys did not follow the president's agenda, they did not carry out the president's plans.

Mr. Sampson, can you gives us details of the president's agenda for the US Attorneys? Is there a plan written down, or documented somewhere? Has the president or White House provided you or the Justice Dept with written guidance in these matters? Please detail the criteria, set by the president, that the attorneys were being judged against.

Posted by: tjallen | March 29, 2007 06:38 PM

Question #8 by tjallen is excellent. I would love to hear an answer.

Posted by: Hugh Loebner | March 30, 2007 01:27 AM

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