As I walked from the Metro station to Capitol Hill this morning, I wondered why I'd assigned myself to cover a hearing on the FBI's latest transgressions —worthy topic as that is—in the middle of the looming confrontation over whether Congress will force Karl Rove and Harriet Miers to testify about the U.S. attorneys scandal. I shouldn't have worried. As it turned out, the Senate judiciary committee didn't really want to think about the FBI, either. So the senators hijacked their own hearing and talked about the pending subpoena showdown instead. A constitutional crisis pretty much always beats whatever's on the agenda.
Arlen Specter, R-Pa., urged Democrats to "rethink" the subpoenas they have planned for Rove and Miers. Specter had to do a little dance that demonstrates the difficulty he and other Republican senators find themselves in. On the one hand, he wants Congress—in particular judiciary committee Chairman Patrick Leahy, D-Vt.—to make a deal with White House counsel Fred Fielding, who yesterday said Rove and Miers could testify, but only in private, not under oath, and without a transcript. On the other hand, Specter said that it would be "preferable to have the matter transcribed" and that his "own preference" is for a public hearing. He also said, "It's obviously indispensable to find the facts about whether the Department of Justice acted properly or improperly" in firing the eight U.S. attorneys who were forced to resign last year.
Specter's best argument was the long delay he says will ensue if the Democrats reject Fielding's offer. If the clash over whether the Bush administration can assert executive privilege to defy congressional subpoenas goes to court—where the president said yesterday he'd be happy to take it—Rove and Miers won't be testifying about anything to anyone for quite a while. "We'll be looking at 2009, after the end of this president's term," Specter foretold, reminding his colleagues of the Clinton-era fight over executive privilege that began in 1995 and ended in a 1997 court ruling. Waiting two years would be bad because the way the Department of Justice dealt with the ousted prosecutors has been "a very very serious problem," causing "a morale problem" and raising questions about how the U.S. attorneys who have continued in office "are going to function," which is "of the utmost importance." Specter seems truly conflicted: He appears to agree with Democrats that the Justice Department and administration behaved outrageously, but in the end he'll bow to the White House and vote against the subpoenas.
Democrats have no such ambivalence. "There have been too many closed door hearings at which we've gotten inadequate and many times misleading information," Leahy harrumphed. Sen. Dianne Feinstein, D-Calif., brought up the closed-door hearing with Deputy Attorney Gen. Paul McNulty in February, at which he told the committee the U.S. attorneys had been fired because their performance was lacking (boy, is he ever sorry he said that!). "I wish that hearing could have been public," Feinstein said. Because it was only afterward that the committee and the rest of us got the performance evaluations for the fired prosecutors and found out that DoJ had rated most of them highly.
"I believe there is even more to come out," Feinstein predicted. "And I don't believe we'll get that in a private interview." In a Girl Friday moment (sorry, but it was), she turned to Leahy and said, "I am one that urges you to be strong." A few hours later, the House judiciary committee voted to authorize subpoenas for Rove and Miers (as well as their deputies, Scott Jennings and Bill Kelley, and Kyle Sampson, former aide to the attorney general).
Well and good. Let's see what information Congress can ferret out of the White House. But while we're waiting—and believe me, we will be waiting—let's review other disquieting news about the Bush Department of Justice, stories that have dripped out in the last couple of years but not attracted much public notice.
In August 2005, the Boston Globe reported that after a grand jury in Guam opened an investigation of former super-lobbyist Jack Abramoff in 2002, President Bush "removed the supervising federal prosecutor, and the probe ended soon after." The timing is pretty striking. On Nov. 18, 2002, a grand jury subpoenaed secret and suspect-seeming contractual transactions involving Abramoff. The next day, the White House announced the replacement of Frederick A. Black, the acting U.S. attorney for Guam and the Northern Mariana Islands since 1991 and lead prosecutor in the case.
Even less publicized have been the drumbeat of complaints from longtime career attorneys within the department—the kind of people who have worked for several presidents over the years, Republicans and Democrats, and who say the Bush administration is entirely different. Some of the concerns they raise, such as fewer anti-discrimination cases brought on behalf of African-Americans, may reflect a shift in priorities from one administration to the next. You can question whether it's wise for the Justice Department to reallocate its resources this way. But since DoJ is part of the executive branch, if you don't like it, the real remedy is to elect a different sort of president.
Other moves at DoJ, however, alarm lawyers of all stripes with their partisanship. In 2005, the Department of Justice was about to wind up its big racketeering case against the tobacco industry, which had begun during the Clinton presidency. The lead attorney on it, Sharon Eubanks, says that when John Ashcroft became attorney general, she laid out the options for him: drop the case, or some of the claims, or continue to pursue it. She was told to go ahead. But on the day of her summation at the trial, deputies for Gonzales, who'd since become attorney general, apparently had second thoughts. Over Eubanks' objection, they forced her to cut the government's claim for damages from $130 billion to $10 billion. She saw that as a big fat gift to the tobacco companies, and she subsequently resigned, after 22 years as a DoJ attorney. "The reason they went ahead with the case was that they did not think I was capable of leading a team of 30 to 35 lawyers to victory over 350 lawyers on the other side," Eubanks said when I reached her this week at home. "I'm a small black woman. I'd go over to the main building and I'd say we had a good day, and the political people didn't pay much attention. The moment the relationship changed was before my closing argument, when I went in and said we'd won the case. It was at that point that they came after us."
There's more: Questionable calls to approve legislative redistricting plans in Mississippi and Texas (remember the one that Tom DeLay engineered?) and a voter-identification statute in Georgia. The details are in this report released today by the Citizens' Commission on Civil Rights. Many articles about troubling DoJ practices have also appeared over the last two years, in the New York Times, the Washington Post, the Los Angeles Times, and the Boston Globe. These stories came and went without causing any hullabaloo because—well, why exactly? Because the administration had control of Congress, because the details seemed dry, but most of all because there wasn't a political scandal lapping at the shoes of top White House officials whose names everyone knows.
Now conflicts at the Department of Justice involving political appointees and prosecutors have everyone's attention. "It seems we go from one crisis to another," Specter sighed this morning at the judiciary committee hearing. After battling about the White House subpoenas, the senators remembered the other scandal they had come to investigate. Finally, they let their witness talk about the FBI.