How to impeach Gonzales.

The law, lawyers, and the court.
May 17 2007 6:18 PM

The Icing Is Iglesias

His firing is reason alone for Congress to impeach Gonzales.

Former US Attorney David Iglesias. Click image to expand.
David Iglesias 

Congress could and should impeach Alberto Gonzales. One ground for doing so, as I have previously suggested (subscription required), is the attorney general's amnesiac prevarication in his testimony before the Senate and the House. But if Congress wants more, it need look no further than the firing of David Iglesias, former U.S. attorney in New Mexico. The evidence uncovered in Gonzales' Senate and House testimony demonstrates that he fired Iglesias not because of a policy disagreement or a management failure, but because Iglesias would not misuse the power of the Department of Justice in the service of the Republican Party. To fire a U.S. attorney for refusing to abuse his power is the essence of an impeachable offense.

Iglesias is by now familiar as the former military lawyer and Tom Cruise character inspiration who drew the wrath of home-state Sen. Pete Domenici, R-N.M., and Rep. Heather Wilson, R-N.M. The administration first claimed that he was dismissed for "performance-related reasons" along with the other seven fired U.S. attorneys. This is demonstrably untrue. Iglesias was appointed New Mexico's U.S. attorney in 2001, and thereafter earned a stellar reputation.

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Tellingly, Iglesias wasn't included on any list of candidates to be fired drawn up by former Gonzales Chief of Staff Kyle Sampson until Nov. 15, 2006, eight days after the midterm elections. Which brings us to the real reason for Iglesias' belated inclusion in the purge: his refusal to use his office to help Republicans win at the polls. While the basic outline is familiar, the details are less so.

In 2004, New Mexico Republicans made the specter of voter-registration fraud a major campaign issue. Republican activists filed a civil lawsuit asking that first-time voters be required to present a photo ID. The case was speedily dismissed. Republicans next approached the U.S. Attorney's office with allegations of criminal voter fraud centered on the voter-registration efforts of community-organizing groups like ACORN. Iglesias announced that a bipartisan voter-fraud task force would investigate. The next day, Mickey Barnett, a former Republican national committeeman, e-mailed Iglesias to say that he should just file charges immediately—that is, before the election.

Instead, the New Mexico U.S. Attorney's office investigated allegations of voter fraud for the next two years. Iglesias became recognized as an expert in the area and in October 2005 was invited to teach at a symposium on voter integrity sponsored by the DoJ Public Integrity Section. Despite thorough investigations of about 100 instances of alleged voter fraud, however, the FBI and Iglesias' office found not a single case they could prosecute.

In New Mexico, Republican officeholders and activists were stubbornly uninterested in provable facts. They wanted politically useful prosecutions. New Mexico state Republican Party Chairman Allen Weh started complaining in 2005 to the White House about Iglesias' failure to produce voter-fraud cases. Before the 2006 elections, state Republicans sought not only voter-fraud prosecutions, but also corruption indictments against high-ranking state Democrats. These prosecutions assumed particular importance because of the strong challenge Wilson, a Domenici protégé, faced in her battle for re-election.

On June 20, 2006, Republican activist Barnett called Karl Rove's shop and requested a meeting with Justice Department officials to discuss Iglesias. The next day, Barnett and another state Republican met Monica Goodling, White House liaison for Gonzales, and complained about Iglesias' failure to prosecute voter-fraud cases. According to Sampson's testimony before Congress, "in the run-up to the midterm elections," Rove took these complaints to Gonzales. On October 11, 2006, President Bush personally added his complaint about the lack of voter-fraud prosecutions in New Mexico. Gonzales has acknowledged receiving these complaints from Rove and the president. And of course, there are the famous phone calls Iglesias got in October directly from Domenici and Wilson.

To date, no one has admitted placing Iglesias on the purge list, where his name appeared for the first time the week after the 2006 election. But if the who is unknown, the why is plain. The only complaints ever made against Iglesias before his dismissal were those of politicians angry at his persistent refusal to bring cases or time indictments for their benefit at the polls. The only rational inference is that he was terminated for that refusal.

Showing that Gonzales knew that the only real reasons for dismissing Iglesias were improper ones is critical to the case for impeaching the attorney general. Remarkably, Gonzales has effectively admitted as much. In his testimony, Gonzales provided three explanations for his decision to fire Iglesias: 1) Iglesias "lost the confidence of Senator Domenici," 2) Karl Rove and President Bush complained, and 3) "the consensus recommendation of the senior leadership."

The last explanation is misleading. To the extent it suggests that the "senior leadership" of the Department of Justice initiated the idea of firing Mr. Iglesias, it appears to be false. All of the "senior leadership" to have testified so far—including Deputy Attorney General Paul McNulty, Acting Associate Attorney General William Mercer, and Sampson—deny proposing Iglesias for removal. What's more, the only complaints anyone in the Justice Department received about Iglesias were those voiced by Domenici and his fellow New Mexico Republicans, and echoed by Bush and Rove. And all those complaints concerned either voter fraud or public corruption. Thus, when Gonzales said to Congress, "I was not surprised that Mr. Iglesias was recommended to me, because I had heard about concerns about the performance of Mr. Iglesias," he was admitting, however grudgingly, that he knew Iglesias was being fired either for failing to bring voter fraud cases or failing to indict New Mexico Democrats before the 2006 election.

Yet Iglesias' prosecutorial judgment that there were no viable voter-fraud cases to bring has never been challenged by the White House, the attorney general, or any Justice Department official. Indeed, FBI Director Robert Mueller testified in April 2007 that he was not aware of any election-fraud case since 2001 that he thought should have resulted in an indictment, but did not.

Iglesias' firing, therefore, cannot be lumped with others characterized as dismissals for failure to carry out the priorities of the Bush administration. A U.S attorney may certainly be dismissed for failing to prosecute a class of cases the administration has made a priority, so long as there are meritorious cases in his district to prosecute. To knowingly prosecute cases that are without merit, however, would be personally unethical and a gross abuse of prosecutorial power. The punishment is disbarment. If a U.S. attorney, at the command of his political masters, prosecuted a case without merit to suppress voter participation, he would also commit the felony of voter intimidation, as laid out in these federal statutes.

Nor can Iglesias' firing properly have been based on the conduct of his New Mexico corruption investigations. What Iglesias knew in October 2006, but could not tell Wilson or Domenici, was that the long-running corruption probe was going just fine. On Feb. 18, 2007, 10 days before Iglesias left office, Ken Schultz, former mayor of Albuquerque, and architect Marc Schiff pled guilty to conspiracy and wire fraud in connection with a courthouse construction scheme. * In mid-March, two more defendants pled guilty, and at the end of that month, former New Mexico Senate President Manny Aragon and three co-defendants were charged in a 26-count indictment. Although Iglesias could not tell New Mexico's Republican politicians how close his case was to fruition in November 2006, this information was available to Alberto Gonzales or any other Justice Department manager who chose to ask.

Iglesias' sin was not a failure to conduct a successful investigation, but rather his refusal to rush the investigation to affect the outcome of an election. Gonzales' approval of his firing is inexcusable. It was for just such an extraordinary case that the Constitution's framers gave the legislature the power to remove civil officers. Congress should use it.

* Correction, May 22, 2007:This sentence originally incorrectly stated that Marc Schiff is the former mayor of Albuquerque. Click here to return to the corrected sentence.

Frank Bowman is a law professor at the University of Missouri-Columbia.

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