Scandal at 1600: The US Attorneys Affair

This afternoon, ACS welcomed Preet Bharara, a CLS alum and chief counsel to Senator Charles Schumer, to discuss his investigation into the U.S. Attorneys firing scandal. Bharara graduated from the Law School in 1993 and then worked at a large New York firm, a smaller New York firm, and then the U.S. Attorney’s Office before taking his current position with Senator Schumer; he noted that each new job brought a smaller salary and smaller office.

Bharara began by stating his belief that the firing scandal matters, even though the President can terminate U.S Attorneys as he wishes, because it is critical that people have faith in the Department of Justice to strive for excellence in its work and avoid compromising the quality of its work to serve partisan purposes.

Bharara remarked that the scandal and fallout, like so many tragedies, are comprised of three acts. Act one began in December 2006 when more than a half dozen U.S. Attorneys were fired with no reason given for their dismissal. Because two of the fired Attorneys held California posts, Senator Feinstein began to inquire into the firings. In January 2007, Bharara began to discuss with Senator Schumer the possibility of hearings to investigate the firing, which then began in February.

As the hearings proceeded, questions about the reasons for the firings went unanswered or answers offered quickly collapsed upon further inquiry. For example, some individuals questioned said that the firing were a reflection of the Attorneys’ poor job performances; however, written evaluations demonstrated that in every case but one the fired Attorneys had received extremely positive performance reviews.

The investigation into whose idea the firings had been proved equally troubling. In a series of depositions, the individuals who comprised the core leadership of the Department of Justice denied responsibility for planning the firings. Even Attorney General Gonzales denied a role in formulating the plan to dismiss the Attorneys. Despite Congress and the public’s growing contempt for these denials, the Attorney General did not resign following the hearings and the President stated that he had more confidence in Gonzales than ever before.

The second act of the tragedy concerns Gonzales’ role advising the President while serving as White House Counsel. On March 10, 2004, as Attorney General Ashcroft lay in a hospital intensive-care unit recovering from surgery, Deputy (and Acting) Attorney General James Comey received a phone call informing him that Gonzales and White House Chief of Staff Andrew Card were headed to the hospital to persuade Ashcroft to sign a document reauthorizing the Terrorist Surveillance Program, (which requires reauthorization every 45 days) after Comey had refused to reauthorize, concluding there was no longer legal justification for the program. Comey headed to the hospital and when Gonzales and Card arrived, Ashcroft refused to sign the reauthorization, noting that he could not even if he wished to, as he had temporarily transferred his power to Comey.

The next day, Comey resigned his office, angry over the administration’s attempt to persuade an ill man into signing off on the program once the Acting Attorney General had refused. Indeed, perhaps as many as ten senior Department of Justice officials threatened to submit their resignations in the aftermath. Several days later, the administration backed down and agreed to make changes in the Terrorist Surveillance Program. However, once this tale was related by Comey to a Congressional committee during his testimony about the firing scandal, Gonzales’ reputation was further damaged and calls for his resignation increased.

The third act, as told by Bharara, consisted of Gonzales’ continuing struggle to respond to Congressional committee questions. When he testified about the firings, he was unable to recall answers he had previously given the committee and failed to respond to questions seeking very basic information, such as the number of employees actually terminated in the firings. By August of 2007, nearly all of the leadership of the Department of Justice had resigned and soon Gonzales would follow.

Bharara said that as a result of the firing scandal, protocol at the Department of Justice has changed. For example, hiring practices have been altered such that applicants’ political leanings no longer affect their job prospects. In responding to questions, Bharara noted that the fired Attorneys have landed on their feet, as the hearings actually made clear their talents, rather than exposing any faults.

Finally, Bharara emphasized that the president was free to fire U.S Attorneys as he pleased, but that in this instance the firings were problematic because they seemed to indicate some particular plan, yet the Department of Justice failed to supply answers as to why the firings occurred and where the command to fire came from.