Welcome to ‘the criminal area’

March 19, 2007

Last week, Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) acknowledged that the president could fire U.S. Attorneys at will, but added, “[I]f it is done to stop an ongoing investigation, then you do get into the criminal area.”

And speaking of stopping an ongoing investigation…

Fired San Diego U.S. attorney Carol Lam notified the Justice Department that she intended to execute search warrants on a high-ranking CIA official as part of a corruption probe the day before a Justice Department official sent an e-mail that said Lam needed to be fired, U.S. Sen. Dianne Feinstein said Sunday.

Feinstein, D-Calif., said the timing of the e-mail suggested that Lam’s dismissal may have been connected to the corruption probe.

Justice Department spokesman Brian Roehrkasse denied in an e-mail that there was any link.

It’s not like we have reason to deny the Justice Department the benefit of the doubt, right? In this case, all we have is Carol Lam, a respected U.S. Attorney, who busted one corrupt Republican lawmaker and starting eyeing another GOP suspect. She notified the DoJ about search warrants and the very next day, the Attorney General’s chief of staff sent an e-mail to the White House counsel’s office, describing Lam as a “real problem” and calling for her dismissal.

Why would anyone suggest there might be a link?

The Leahy quote about getting into the “criminal area” is of particular significance, especially in light of the timing in Lam’s ouster. Indeed, Adam Cohen wrote in an NYT op-ed today that this scandal is more than just a political squabble; it’s a controversy that may highlight actual criminal conduct in the Bush administration.

Some crimes that a special prosecutor might one day look at:

1. Misrepresentations to Congress. The relevant provision, 18 U.S.C. § 1505, is very broad. It is illegal to lie to Congress, and also to “impede” it in getting information. Deputy Attorney General Paul McNulty indicated to Congress that the White House’s involvement in firing the United States attorneys was minimal, something that Justice Department e-mail messages suggest to be untrue. Attorney General Alberto Gonzales made his own dubious assertion to Congress: “I would never, ever make a change in a United States attorney position for political reasons.” […]

2. Calling the Prosecutors. As part of the Sarbanes-Oxley reforms, Congress passed an extremely broad obstruction of justice provision, 18 U.S.C. § 1512 (c), which applies to anyone who corruptly “obstructs, influences, or impedes any official proceeding, or attempts to do so,” including U.S. attorney investigations.

David Iglesias, the New Mexico United States attorney, says Senator Pete Domenici, Republican of New Mexico, called him and asked whether he intended to bring indictments in a corruption case against Democrats before last November’s election. Mr. Iglesias said he “felt pressured” by the call. If members of Congress try to get a United States attorney to indict people he wasn’t certain he wanted to indict, or try to affect the timing of an indictment, they may be violating the law.

3. Witness Tampering. 18 U.S.C. § 1512 (b) makes it illegal to intimidate Congressional witnesses. Michael Elston, Mr. McNulty’s chief of staff, contacted one of the fired attorneys, H. E. Cummins, and suggested, according to Mr. Cummins, that if he kept speaking out, there would be retaliation. Mr. Cummins took the call as a threat, and sent an e-mail message to other fired prosecutors warning them of it. Several of them told Congress that if Mr. Elston had placed a similar call to one of their witnesses in a criminal case, they would have opened an investigation of it.

4. Firing the Attorneys. United States attorneys can be fired whenever a president wants, but not, as § 1512 (c) puts it, to corruptly obstruct, influence, or impede an official proceeding.

Let’s take the case of Carol Lam, United States attorney in San Diego. The day the news broke that Ms. Lam, who had already put one Republican congressman in jail, was investigating a second one, Mr. Sampson wrote an e-mail message referring to the “real problem we have right now with Carol Lam.” He said it made him think that it was time to start looking for a replacement. Congress has also started investigating the removal of Fred Black, the United States attorney in Guam, who was replaced when he began investigating the Republican lobbyist Jack Abramoff. Anyone involved in firing a United States attorney to obstruct or influence an official proceeding could have broken the law.

Much more needs to be learned, and Senator Patrick Leahy, the Vermont Democrat who leads the Judiciary Committee, has been admirably firm about insisting that he will get sworn testimony from Karl Rove and other key players. It is far too soon to say that anyone committed a crime, and it may well be that no one has. But if this were a law school issue spotter, any student who could not identify any laws that may have been broken would get an “F.”

I’ll have plenty of other key purge updates this morning, including a new argument from Kyle Sampson, Pat Leahy’s intentions, and more. Stay tuned.

Carol Lam notified the Justice Department that she intended to execute search warrants on a high-ranking CIA official

I keep wondering about the outcome of this. Were these search warrants served? And if not, what prevented that?

  • I don’t know whose bright idea it was to attack the USAs after the scandal broke and try to ruin their reputations (Rove’s probably), but witness tampering and obstruction of justice seem like odd angles of attack on people who were being singled out precisely because they were the most aggressive and successful career prosecutors. A handful of screwed-over, angry lawyers with a sympathetic Senate Judiciary committee sounds like a whole lot of fun.

  • pat leahy is the ideal person to be following up on this, too. he was a long-time state’s attorney in vermont, and was very respected as a prosecutor. so i can understand why this makes him so angry.

  • “United States attorneys can be fired whenever a president wants, but not, as § 1512 (c) puts it, to corruptly obstruct, influence, or impede an official proceeding.”

    This could possibly come in to play in the “voter fraud” matters, even if the message was not specifically for those fired, but to send a message to the other USAs to do the political bidding of the White House (push very hard on all claims of voter fraud, or against all Dem candidates a month before an election) or you too will be out of a job.

  • The Bush Crime Family strikes again.

    If you start with the premise that these people are gangsters it makes everything so much more expected. Theft on a grand scale (think Cheney and Halliburton), constant lying (think Shrub, Abu Gonzo), utter disrespect for us “little people” (think Barbara Bush, Rumsfeld), disregard for the political process (think Florida 2000, Ohio 2004), blessing by “religious” crooks (think Falwell, Robertson). It really does explain a lot.

    There is a corollary: we’ll probably never be able to get them for the huge crimes they’ve actually committed. They got all their bases too well covered. We should concentrate on minor crimes (as with Al Capone’s income taxes); hubris prevents them from covering their asses there.

  • I was pretty sickened by the initial spin that there was nothing illegal going on, and how no one challenged it. Pushing prosecutors around to influence how they do their jobs is clearly criminal.

  • I just heard on Air America that Think Progress has an article which implicates Cheney’s office as the conduit to fund Duke Cunningham’s yacht. That’s about right; no wonder they wanted Carol Lamb fired.

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