Monday, August 17, 2009

Years after President George W. Bush fired nine U.S. attorneys, lawmakers are still searching for answers. But they seem to be asking the wrong questions.

In keeping the controversy alive, Democrats have muddied the discussion: Did political adviser Karl Rove fire a prosecutor so his friend could get the job? Did the White House cut a deal with a senator and agree to fire a prosecutor in exchange for putting a judge on the bench? Did political operatives second-guess decisions about what cases prosecutors were filing?

Those are the questions House Judiciary Committee Democrats focused on last week after releasing thousands of pages of e-mails and transcripts of their interviews with Mr. Rove and former White House counsel Harriet Miers.

But politics in the Justice Department is nothing new. The real question is whether the Bush administration took it a step further and illegally used prosecutors to go after political enemies.

The Justice Department has a unique pedigree. It is a governmental descendant of the mythological Lady Justice, who carried a sword to fight evil and blindly balanced fairness. But it also has political DNA, inherited from a long line of presidents who used the department to champion civil rights, break up companies and fight communists and terrorists - as the White House saw fit.

There is built-in tension here before the president picks any of the nation’s 93 U.S. attorneys. Job seekers in any administration can expect some variation of the questions, “What have you done to help elect the president?” and “Do you have anything in your past that could embarrass the president?”

On paper, a U.S. attorney has wide authority as the senior federal law enforcement official in his district. In reality, he gets his priorities from the attorney general and the White House. If the administration’s priorities are terrorists, guns and gangs, the new U.S. attorney may shut down investigations into environmental crimes, corruption or computer fraud.

At its heart, that’s a political decision. If the president promises to stop violent crime but a U.S. attorney is instead getting tough on polluters, the White House is going to notice.

In the run-up to the 2006 firing of New Mexico U.S. Attorney David Iglesias, the head of the state’s Republican Party e-mailed the White House, complaining that Mr. Iglesias was soft on voter fraud. He asked that Mr. Iglesias be replaced so the state could “make some real progress in cleaning up a state notorious for crooked elections.”

The Bush administration took the complaint to heart. In a June 2005 e-mail, White House adviser Scott Jennings said the New Mexico congressional delegation was also frustrated over the lack of voter fraud cases. He urged that Mr. Iglesias be fired.

“Iglesias has done nothing. We are getting killed out there,” Mr. Jennings wrote to Mr. Rove’s deputy.

Comments like this are what the controversy is really about. The firing matters only if it offers insight into whether the White House wanted Mr. Iglesias to take out its political opponents. Federal prosecutor Nora Dannehy is investigating that question, and House Judiciary Committee Chairman John Conyers Jr., Michigan Democrat, says he gave her all the documents the panel collected.

The relationship between U.S. attorneys and Washington is not a simple matter.

A president who worries that voters think he’s soft on crime might want a gang crackdown. The attorney general might demand more gun cases. Maybe the U.S. attorney in a high-crime swing state gets an ultimatum.

Political? Definitely. But not unheard of.

But what if the president tells the attorney general to spike a case against a major donor? To investigate a potential rival? This is the road toward the Watergate scandal and President Nixon’s resignation.

Republicans don’t want to talk about what the U.S. attorney firings might reveal about political motives. Justice Department investigators already have concluded that Bush appointees improperly let politics influence decision-making. Focusing the congressional investigation and the public debate on political warfare would only underscore that finding.

Republicans want this to be about the firing of a few prosecutors. They say the president has that authority. Period.

Democrats are being disingenuous, too. They pretend the Justice Department is an independent body, that the Bush administration was the first to bring politics into the halls of Justice.

They ignore the fact that the department receives letters from Congress every day asking for investigations into situations that constituents or political allies are worked up about. They gloss over the fact that one of the perks of the Senate is being able to influence who gets picked as U.S. attorney, since the Senate confirms the president’s nominees.

And they forget that the White House may never have had a closer ally in the Justice Department than when Attorney General Robert F. Kennedy Jr. was his brother’s most trusted adviser.

There’s a long history of politics in the Justice Department. The question is where the line gets drawn, and whether it’s been crossed.

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