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Wednesday, July 28, 2010

Obama's Justice Department Appears to be Participating in a Coverup

Until last week, the best that could be said of the U.S. Department of Justice under Barack Obama was, well . . . nothing. That's because the DOJ, under Attorney General Eric Holder, had pretty much done . . . nothing.

But things changed last week with reports that the DOJ had found no criminal charges were warranted against Bush administration officials for the firings of nine U.S. attorneys.

The news came in the form of a letter from DOJ official Ronald Weich to House Judiciary Chairman John Conyers (D-MI). In those six pages, the Obama DOJ moved into dark territory. No longer was it just ignoring possible criminal acts by Bush officials; it was engaging in active deceit of the American public.

On top of that, we now know that the "investigation" was handled by a special prosecutor with ties to evidence suppression in an earlier criminal case. What, if anything, will the Obama DOJ do about this latest news, which comes courtesy of some splendid reporting by Andrew Kreig, of the Justice Integrity Project?

Scott Horton, of Harper's, called the findings a whitewash--and he was being charitable. I would call it a coverup. Our unsolicited advice for Conyers: Don't just quietly accept this steaming pile of horse feces.

The investigation into the U.S. attorney firings has emitted a foul odor from the outset. It was conducted by Nora Dannehy, who was appointed to a U.S. attorney position by . . . George W. Bush. Dannehy was tapped to lead the investigation by Michael Mukasey, who was attorney general for . . . George W. Bush. Did these apparent conflicts cause any concern for Eric Holder? Apparently not, because he allowed Dannehy to proceed--and accepted her findings seemingly without any questions.

The entire scandal involved the firings of nine U.S. attorneys. But Dannehy investigated only one case, that of New Mexico's David Iglesias. How can a scandal involving nine cases be declared resolved with the investigation of only one case? Eric Holder isn't saying.

Weich's letter about Dannehy's findings reeks because of what it says--and what it does not say.

A reasonable person might expect that such a letter would outline, right up front, the legal standard Dannehy was using to determine whether crimes were or were not committed in the firings. But the Weich letter says nothing about it.

A prosecutor's normal standard is called "probable cause." Here is one definition of probable cause:

Apparent facts discovered through logical inquiry that would lead a reasonably intelligent and prudent person to believe that an accused person has committed a crime, thereby warranting his or her prosecution.

How important is this concept to a prosecutor? The American Bar Association's Model Rules of Professional Conduct state:

The prosecutor in a criminal case shall:

(a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause;

Dannehy's findings, as spelled out in Weich's letter, are filled with enough probable cause to choke an elephant. But Dannehy apparently was looking for more than probable cause, the usual prosecutorial standard. She appointed herself judge and jury, too, ensuring that the American people would be forever hoodwinked on at least one chapter in the book of Bush-era sleaze.

A reasonable person might also expect that Dannehy's findings, as relayed by Weich, would include some citations to applicable law. After all, the letter is filled with conclusions of law. But she and Weich never tell us what that law is, never cite case law to support their findings. That's almost certainly because there is no case law to support the findings.

What is a citizen to do? We are to take the word of Nora "Trust Me" Dannehy. And we are to do that even though we now know there is reason to question Dannehy's supposedly impeccable credentials.

How might Dannehy's findings be summarized? Here is our best shot: Were the firings politically motivated? Yes. Did they violate department principles? Yes. Were they possibly criminal? No.

If those findings seem contradictory to you, join the crowd.

Absurdities pile one on top of another as you get into the specifics of Dannehy's findings. Consider just three findings, involving the possible criminal charges in the case--obstruction of justice (18 U.S. Code 1503), theft of honest services (18 U.S. Code 1346), and false statements (18 U.S. Code 1001):

* Causing a U.S. attorney to be fired for political reasons is not an impediment to his official duties--Dannehy/Weich say the statute on obstruction of justice penalizes only forward-looking conduct that endeavors to "influence, obstruct, or impede." But they conclude that causing David Iglesias to be fired did not impede his work. We can only assume that Dannehy/Weich actually wrote this with a straight face.

* Bushies did not engage in undisclosed, biased decision making--Dannehy/Weich found the effort to remove Iglesias from office was not "a scheme to get him to use his Office in return for anything of value, including his continued employment." That, however, is not the standard set out for honest-services fraud. In fact, honest-services case law specifically states that it does not hinge on whether "anything of value" changes hands. The actual standard, the one Dannehy/Weich obviously don't want regular Americans to know about is this: Did public officials, in this case members and allies of the Bush administration, engage in "undisclosed, biased decision making" when they sacked David Iglesias? Given that Dannehy admits their motivations were political, the answer obviously is yes.

* You can make statements to Congress that are "inaccurate" and "misleading" but are not "knowingly false"--This is what Dannehy/Weich found regarding Bush-era Attorney General Alberto Gonzalez and his apparent false statements to Congress. How absurd is this conclusion? If a person makes a statement that is both inaccurate and misleading, that means it was made with intent, correct? After all, you can't unintentionally mislead someone. That means the statement was not just innocently inaccurate--it was knowingly false. And such statements are criminal.

For more details on Dannehy's legal conclusions please check out our earlier post:

Report on U.S. Attorney Firings Reads Like a Farce

All of this raises a disturbing question: Do Obama and Holder even want to be taken seriously on justice matters? Will Holder go down as "the most laughable attorney general in U.S. history"?

It could happen. But these are not laughing matters. And John Conyers should not treat them as such.

We don't pretend to be experts on Congressional authority, but it's our understanding that Conyers could decide to conduct his own investigation--looking not only into the U.S. attorney firings, but also political prosecutions under the Bush DOJ. Conyers already has indicated that he has serious problems with Dannehy's handiwork.

Congress has both oversight authority and the "power of the purse." Through much of the Bush presidency, evidence strongly indicates that taxpayer dollars were used not for legitimate justice matters but for political matters. Regardless of what "Trust Me" Dannehy wants us to believe, those actions were almost certainly criminal--there clearly is probable cause to bring criminal charges.

Conyers owes it to taxpayers and to Congress to conduct a broad and thorough investigation. If members of the Obama administration indeed have engaged in a coverup, that means some Democrats could get caught in Conyers' net?

Our response to that possibility? So be it.

The Obama administration has had some 19 months to show that it takes justice matters seriously. It has failed at every turn--and John Conyers should hold them accountable.

Americans simply must know the truth about the ugly deeds of the Bush Justice Department. It's critically important for us now, and it will be even more important for generations to come.

Scott Horton says Holder has helped set up a formula for disaster. And it must not be allowed to stand:

Dannehy’s decision not to proceed is an open invitation to future administrations: the White House is free to manipulate the Department for political purposes, and Justice Department officials are free to lie to Congress.

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