Scott Horton on the politicization of US DOJ

Six Questions for Former U.S. Attorney David Iglesias, Author of In Justice

By Scott Horton

His meteoric career is not simply the stuff of movies–after all, some of David Iglesias’s experiences as a Navy JAG at Guantánamo Bay furnished the material for Aaron Sorkin’s play “A Few Good Men,” later converted into a Hollywood blockbuster. But after six years of service as the Bush Administration’s U.S. Attorney in New Mexico, David Iglesias discovered that his name had been placed on Karl Rove’s hit list. He summed up his experience in a recent interview with the Daily Show’s Jon Stewart by saying, “I thought I was working for the Jedi knights, but found out I was working for the Sith Lords.” His new book, In Justice: Inside the Scandal That Rocked the Bush Administration, gives an in-depth look at how the Bush White House manipulated the Justice Department, bringing and quashing prosecutions for partisan purposes. I put six questions to David Iglesias.

1. You write that the efforts to remove you are tied directly to two things: first, your failure to bring prosecutions for “voting fraud”—after you had convened a special task force to investigate allegations and your career staff and you agreed that there was no basis to prosecute, and second, your refusal to give Senator Pete Domenici and the woman widely seen as his preferred successor, Rep. Heather Wilson, assurances that you would bring charges against a prominent Democrat in the weeks just before the election. You write that you believed that these charges would have given Wilson an edge in her tight race for re-election against former New Mexico Attorney General Patricia Madrid—a conclusion I also reached when I studied the matter. In the second case, you did in fact bring charges, but you also scrupulously followed the U.S. Attorney’s manual, which counseled against bringing prosecutions in immediate proximity to elections if they could be seen as an effort to influence the elections. In both cases, you were being pressured to use your office in a way that would benefit the Republican Party in New Mexico and would be inconsistent with your ethical and legal duties as U.S. Attorney. In both cases, the essential facts you lay out have been admitted to by the New Mexico Republicans involved. Nevertheless, you were fired not by the New Mexico Republicans, but by the Department of Justice. Can you take us through the steps that show how your failure to use your office to back up the G.O.P. in New Mexico led to the decision to fire you?

David Iglesias

One cannot fully comprehend the recent Justice Department meltdown without understanding the belief in New Mexico, Missouri, and Washington State Republican circles, that the 2000 election and subsequent contests were rife with fraud. It set the stage for what followed during the scandal surrounding the forced resignations in 2006 of United States Attorneys John McKay of Seattle, Todd Graves of Kansas City, and me. We were all criticized by Republican operatives for not filing voter or election fraud cases in our respective districts. Each of us examined the evidence and did not find any provable cases, so no indictments were filed. I remember hearing Republican activists allege that the Democrats stole the election in New Mexico during the 2000 presidential election. I heard that illegal immigrants were voting in large numbers. If true this would be criminal, but prosecutors may not base their cases on rumor and innuendo but on admissible evidence they can prove beyond a reasonable doubt in a court of law. Al Gore’s margin of victory in my state, 344 votes, was the slimmest win of any state in the union, and I believe it led local Republicans to vow that would never happen again. In a telling exchange, former White House Counsel Harriet Miers’s first question to John McKay when he interviewed for a federal judgeship was, “Why are the Washington Republicans so mad at you?” Graves was contacted by the former head of the American Center for Voting Rights, “Thor” Hearne, who wanted voter fraud cases prosecuted. Graves was replaced after he refused to file cases that had no merit.

Voter fraud became the bogeyman of New Mexico politics. And what person was best equipped to prevent this alleged problem from happening again? The United States Attorney. Hence in the summer of 2002 the Executive Office of United States Attorney in Washington emailed all 93 U.S. Attorneys asking us to work with state and local election officials to prevent election fraud. In New Mexico, no voting or election fraud case had been filed in federal court since 1992. I reviewed those two cases. They were petty cases producing minor sentences, something in the order of a year or two in prison. During the 2002 election cycle, I did not hear any allegations of widespread voter fraud in my jurisdiction. That changed dramatically in 2004, when the local media covered numerous instances of apparent voter fraud. The most dramatic of those cases involved two underage boys in Albuquerque who received voter registration forms for which they did not ask. Clearly “mischief was afoot,” as I stated to the media in my September 2004 press conference. There were numerous other examples of what appeared to be voter fraud.

Who was really guilty of this concerted attempt to co-opt the Justice Department for political ends? It’s certainly easy, as far as it goes, to point the finger at the hapless attorney general. It was his job to protect the integrity of the institution he led, and in that respect, Alberto Gonzales was a miserable failure. But does that analysis go far enough? In the case of Karl Rove—who was charged with the weighty responsibility of being the president’s domestic policy adviser—certainly not. But what about Bush himself? … Bush set a standard that placed allegiance to him above all else, and Gonzales met that standard at every turn. From that fundamental premise, all else proceeded.
—From In Justice: Inside the scandal that rocked the Bush Administration by David Iglesias.
Reprinted by permission of the publisher, John Wiley & Sons, Inc. Copyright (c) 2008 David Iglesias

In response, I set up one of only two election fraud task forces in the country. My task force was comprised of my office, the local FBI, Main Justice’s Public Integrity Section, the New Mexico Secretary of State’s office, and the State Police. It is important to note that the task force included a Democratic elected official. I intentionally included her for fear that if I acted alone, it would be perceived as a partisan witch hunt. Yet I was criticized by local Republican operative and former national committeeman Mickey Barnett for setting up a task force that, according to him, was a “joke.”

I also set up a hotline for citizens to call into the local FBI office. I believed that we would find provable cases of fraud that I could prosecute, and I was determined to find them. Matters that appeared to be within the jurisdiction of state authorities were sent to the State Police and federal matters were handled by the FBI. I held weekly meetings for approximately two months—from mid-September 2004, when I set up the task force, through mid-November when I stood it down. We took over one hundred complaints and investigated those that appeared to have merit. I asked Executive Assistant U.S. Attorney Rumaldo Armijo, a man I had known for over twenty years and someone with whom I had tried criminal and civil cases in state and federal court, to make the initial call as to whether any of the cases could be prosecuted. I knew him to be ethical, thorough, and relentless. I also met with the FBI agent who was investigating the matter. After almost two years of investigation, we were unable to come up with a single prosecutable case. I conferred with main Justice and with the local FBI office. It was ultimately my call, and I followed the professional staff in finding that there wasn’t enough evidence to support a prosecution. Main Justice and the FBI did not disagree with my assessment.

But local Republican leaders disagreed. They could not believe that the investigation failed to produce a prosecution. During the 2004-06 time period, Rumaldo Armijo and I received numerous phone calls and emails from former state G.O.P. counsel Patrick Rogers. He exhorted us to file cases. We could only tell him what we would tell any member of the public–that we would file provable cases and even then, we would not file a case just before an election if we felt it could affect the outcome of the election. This was policy of the Justice Department, per career attorney Craig Donsanto, who wrote the election fraud manual that all U.S. attorneys used. Significantly, Rogers never told Armijo or me that he was also an official of a group called the American Center for Voting Rights—a G.O.P. organization alleged to be engaged in voter suppression efforts. I did not find this important fact until after I left the Justice Department. I knew Rogers to be involved in the litigation over the voter I.D. law and knew him to be a fiercely partisan Republican. In 2006, I heard from a friend of mine who was active in the state party that the party was upset with me. At one point he implored me, “can’t you file something?” So I heard the rumbling of the party in the 2005-06 timeframe.

I was aware of the simmering discontent of the local Republicans. Just before the 2006 midterm election that discontent boiled over when I received a highly improper phone call from Congresswoman Heather Wilson in mid-October and another call from Senator Pete Domenici in late October. At the time of the call, Wilson was locked in a tight race with challenger Patricia Madrid who was ahead of her in some polls. Wilson was calling about “sealed indictments” concerning a prominent local Democrat my office was investigating for corruption. I did not tell her anything about the matter since that would have been against the law and a violation of DOJ guidelines. Domenici called me a couple of weeks later asking whether I’d be filing the indictments he was reading about “before November.” When I told him “I didn’t think so,” he responded “I’m very sorry to hear that” and then hung up on me. Both Wilson and Domenici were talking about the same investigation. Wilson had used her opponent’s weak record in pursuing corruption cases as part of her attack strategy. I knew that if I told them I was close to indicting the case that would be used by Wilson in connection with her election campaign. I also knew they had no legitimate need to know when I would be filing the indictments. I was put on the list to be fired on November 7, 2006—Election Day. The timeline alone is damning and it was clear to me that I was placed on the list because I would not rush an indictment of a high-profile Democrat in a way that would benefit Wilson in her campaign. Wilson ultimately won that race by fewer than 900 votes. I do note that Wilson lost in the primary this June, ending her bid to replace Domenici, who will be retiring from his Senate seat in January 2009. Domenici’s official explanation for retiring after 36 years of service is for health related reasons; he has a degenerative neurological condition.

2. The Justice Department’s Inspector General (OIG) and the Office of Professional Responsibility (OPR) have been investigating the firing of eight U.S. attorneys, including yourself, and their report is now due. The OPR has been heavily criticized lately for its failure to follow through on major investigations, and it has been manipulated—sometimes overtly—by political appointees. OIG has maintained its independence and integrity, however. Have you been interviewed in connection with this probe? Did it strike you as thorough and professional? Do you expect a report to be issued shortly, and if so, what are the major conclusions you would anticipate?

Yes, I was interviewed by attorneys from both OIG and OPR. They initially interviewed me in Albuquerque in June, 2007. They called me a couple more times with follow-up questions. I viewed them as professional and thorough. I expect the report to be filed any day now. I expect them to conclude that there is sufficient evidence to show that former Attorney General Alberto Gonzales and former Deputy Attorney General Paul McNulty committed perjury in their statements before Congressional committees and investigators. They may find that former McNulty chief of staff Mike Elston intimidated witnesses based on his calls to former U.S. Attorney Bud Cummins of Arkansas. I was aware that Elston had told Cummins that “the gloves would come off” if we kept speaking out about our forced resignations. I found out after In Justice went to print that Elston also told Cummins we would be “thrown under the bus” for our speaking out. It is appalling that a former career federal prosecutor like Elston would so flagrantly violate the law against witness intimidation. There may be enough evidence to warrant a formal investigation of conspiracy and obstruction of justice charges against Gonzales, McNulty and Elston. I hope the OIG/OPR report recommends the appointment of a special prosecutor to investigate the matter, taking the advice offered by former U.S. Attorney John McKay in his compelling law review article on the subject.

3. You quote John Ashcroft as saying that “politics have no role in the position of United States attorney.” But of course, the House Judiciary Committee is now looking at a list of prosecutions brought under Ashcroft’s tenure in which there is significant evidence that politics did indeed play a role. On Thursday of last week, Ashcroft surprised many by stating that he was very troubled by the way the White House manipulated the process of issuing opinions in the Office of Legal Counsel (OLC). He suggested that OLC had ceased to be independent or to render independent legal advice. What emerges from Ashcroft’s testimony is a picture of a Justice Department that was slipping out of his control and was being secretly manipulated by political functionaries in the White House. In retrospect, would you now say that this may have occurred with respect to the U.S. Attorneys as well?

Yes, based on what I know now, the political operatives in the West Wing wanted an outcome that Ashcroft and former Deputy Attorney General Jim Comey were not willing to support after reviewing the law. The White House didn’t want an independent analysis–it wanted the rubber stamp of the Justice Department. I recall hearing testimony last year from Comey that he, Ashcroft, and FBI Director Bob Mueller threatened to resign over the warrantless wiretap issue—another issue from OLC, but indicative of the clash between the politicos of the West Wing and the independent analysis that the DoJ was ethically required to provide.

Regarding the other U.S. Attorneys, of the remaining 84 who were not asked to resign in 2006, I am aware of allegations of selective, politically driven prosecutions in Alabama related to the highly suspicious prosecution of former Governor Don Siegelman, the prosecution of county coroner Cyril Wecht in Pittsburgh, and the prosecution of Wisconsin employee Georgia Thompson in Milwaukee. I am not aware of even the allegation of a “Faustian bargain” with the remaining 81 US Attorneys. Having worked with virtually all of them, I believe them to be ethical attorneys who would not compromise their office for political gain.

4. You write that “all roads lead to Karl Rove,” that he was the mastermind of the plan to cashier U.S. attorneys for political reasons. Ten days ago, Karl Rove failed to respond to a subpoena from the House Judiciary Committee, sending only a letter by his lawyer stating that he was invoking executive privilege. Of course, as you explained in your article in Slate, Executive Privilege does not exist in this case, and in any event, it would be the President’s privilege to invoke, not Karl Rove’s. Not only did Rove fail to appear, he actually fled the jurisdiction, as my colleague Ken Silverstein reported, appearing at a “nauseating” gathering of post-Soviet oligarchs in Ukraine. To add to the insult, he later appeared on Fox News taunting and mocking the Congressional investigators. Do you think it would be appropriate for Congress to sanction him for contempt? Why do you think Rove is refusing to answer questions under oath? Do you believe the prohibition on “corruptly influencing” a criminal prosecution, 18 U.S.C. § 1503(a), has something to do with Rove’s decision?

From virtually the first day, the Bush Administration seemed to have wrapped itself in an impenetrable aura of hubris, stiffened, as its members were, by ideological rigor and dedicated to Rove’s own goal of a permanent Republican majority. Under the ineluctable sway of that grand goal, those who expressed dissent or demonstrated disloyalty or were simply suspected of doing either were judged expendable. My fellow fired U.S. attorneys and I were just collateral damage in a larger battle to refashion government to reflect the ideals and the values of a single partisan agenda.
—From In Justice

Rove has already been held in contempt of the Senate. The House should follow suit. It is unacceptable in a country where the rule of law is the cornerstone of our jurisprudence that a former White House official fail to appear to claim privilege before Congress. Rove should have appeared before Congress and claimed privilege. Rather, he thumbed his nose at a co-equal branch of government and showed his utter disregard for their powers. His actions are contemptuous per se and he should be held in contempt by the House. The language of 18 USC § 1503(a) is broad since it speaks of “influencing” an “officer…of the United States” in the “discharge of his duties” including the “due administration of justice.”

Applying this test to the allegations concerning the Siegelman matter, for instance, the evidence suggests that Rove influenced a U.S. Attorney in the discharge of her duties. This is a very serious matter and needs to be fully investigated since a non-attorney policy adviser has no business influencing the indictment of an elected official.

The record also shows that Domenici contacted Rove about me, as did the State Party Chairman of New Mexico, Allen Weh. If Rove’s intent was to find a U.S. Attorney who would file voter fraud cases or rush an indictment against the former State Senate Pro Tem Manny Aragon, then Rove may face criminal exposure using the “corruptly…influence” standard in section 1503. The Administration may be withholding evidence concerning former San Diego U.S. Attorney Carol Lam’s forced resignation while she was investigating Dusty Foggo, a high level political appointee at the CIA and former Arizona U.S. Attorney Paul Charlton’s dismissal as he was investigating Arizona Congressman Rick Renzi, a conservative Republican.

5. One of the most compelling aspects of your book involves how you shared notes with the other seven U.S. attorneys who were dismissed late in 2006. You repeatedly found similarities—some failed to go after Democrats, some had prosecuted Republicans, others had been caught up in the “voter fraud” fraud. Is it fair for us to be concerned about the more than eighty U.S. attorneys who were not cashiered?

This is a very thorny issue as I understand the need for Congress to provide oversight for apparently politically driven investigations or prosecutions. On the other hand, prosecutors do have tremendous discretion to investigate and file charges. To accede to Congress in any matter, in my opinion, would be a solution worse than the problem which I believe to be extremely rare. Many investigations are closed due to lack of evidence or provability. To allow Congress to second-guess these closed matters could result in inappropriate harm to the reputations of persons who were investigated, but never actually charged. I would support Congressional oversight only if the evidence is clear that the resources of the Justice Department were used in an unlawful, partisan manner. Another practical problem is that few members of Congress have ever been U.S. Attorneys—I can think of Senator Sheldon Whitehouse of Rhode Island and Senator Jeff Sessions of Alabama. I would be concerned about opening up Pandora’s box if Congress had full access to review any matter ever investigated by the Justice Department.

6. In chronicling the very prickly relations that developed with main Justice in the weeks that followed your departure, you note the rude phone calls that some of your colleagues received intimating that they would be smeared if they spoke honestly about what had happened, you record the false testimony given by the four senior-most Justice officials that ultimately caused them to resign in disgrace, and finally you give us the blow-by-blow involving Main Justice’s flak, Brian Roehrkasse. A former Republican campaign operative, Roehrkasse was caught issuing false statements. However, instead of being dismissed, Roehrkasse was actually promoted—he is now Justice’s chief press spokesman, and he continues in that capacity under Attorney General Mukasey. You recall a final meeting with Deputy Attorney General James Comey in which he spoke of the need for the Justice Department to maintain a “reservoir of trust.” At present the Justice Department is at a low point in modern times, and it increasingly appears that the “reservoir of trust” was used to do some very bad things. How would you advise the next attorney general to start building back the trust that has been lost, and what should be done with those who abused the public’s trust?

The Justice Department’s reservoir of trust is empty and dry. It will take completely new leadership at main Justice and in the field to re-build the faith the public once had in the fairness of the federal criminal system. This is the real tragedy of the scandal—certainly it is not about a few highly performing U.S. Attorneys being fired for improper political reasons; rather, it is the unintended consequence of serious damage to the reputation to the nation’s premier crime fighting organization. It doesn’t help when the press officers are engaging in a pattern of obfuscation, half truths and untruths as former U.S. Attorney Bud Cummins so forcefully described in his Washington Monthly article.

I trust the next attorney general will continue Mukasey’s policy of limiting White House and Justice Department contact to only four people as compared with the hundreds under the tenure of Alberto Gonzales. In order to insulate U.S. attorneys from improper partisan manipulation, Congress could require that a U.S. attorney can be removed during his term only for misconduct. Future administrations need to protect U.S. attorneys from improper political pressure. For example, this administration protected U.S. Attorney Johnny Sutton after his highly controversial prosecution of Border Patrol agents Ramos and Compean. The chorus of critics were largely conservative Republicans and the administration shielded Sutton from their pressure. The next attorney general needs to understand the historic independence and integrity of the U.S. attorney. We are not merely politically appointees—we are the only members of the administration who can take away your life, liberty and property. Ultimately we need leaders at main Justice who understand that the administration of justice is a matter of right and wrong, not a matter of right or left.