Criminalizing Politics, Again


Last week, Attorney General Michael Mukasey tempted fate by appointing a quasi-independent counsel — an experienced, respected career prosecutor from outside Washington — to investigate a non-crime inflated to a scandal by Democrats’ demagoguery: the 2006 firing of nine district United States attorneys. We can only hope the result is not another Scooter Libby debacle.

Mukasey’s hand was forced by Justice’s inspector general, Glenn Fine, who issued a report for which Democrats and their allies in the mainstream media have been salivating. Though Fine found no crime in the termination of the U.S. attorneys, he scalded former Attorney General Alberto Gonzales for being “remarkably unengaged” in the process. Gonzales’s underlings, the report finds, ran rampant, allowing political considerations to factor into the “fundamentally flawed” termination process.

It bears repeating that the report makes no claim of criminal wrongdoing. U.S. attorneys are political appointees. They serve at the pleasure of the president, who can fire them for any reason or for no reason. Their appointment is inherently political, and that is precisely how Congress has always wanted it — with senators of both parties (and the party machinery in each state) weighing in heavily regarding which lawyers in their districts get these coveted slots. U.S. attorney removals are a patronage operation, too — nobody investigated in 1993 when, after twelve years of GOP administrations, Bill Clinton fired nearly all 93 appointees so he could fill the slots with Democrats.

Mismanagement and over-politicization at the Justice Department are not trivial matters. Fine’s conclusions would call into question Gonzales’s fitness to be the nation’s top law enforcement official; they would call for his subordinates to be fired; they would tarnish the Bush administration, which would deserve political criticism. All these things and more have happened already: Gonzales stepped down under a cloud, his subordinates are gone, and the administration has been badly wounded. With the Justice Department in disarray, President Bush had to turn to a respected Washington outsider, Mukasey, to restore order.

As Mukasey has aptly concluded, the firings were “haphazard, arbitrary, and unprofessional,” and the way “the Justice Department handled those removals and the resulting public controversy was profoundly lacking.” That’s exactly right, and it’s the way this sorry chapter should have been closed. But it is not enough for Democrats, who have an endless appetite for scorched-earth subpoenas and demands for testimony from the president’s former top advisers, Karl Rove and Harriet Miers, about the “politicized” removal of these political appointees.

Fine’s report, further escalating this tempest in a teapot, gives the Democrats the ammunition they crave to further politicize the kerfuffle. And that brings us to the other history lesson the Bush administration has failed to learn. Unlike Clinton, who purged his administration of Republican holdovers, Bush did not. He retained Clinton’s CIA director, George Tenet, to disastrous effect. And though rebuked for politicizing the Justice Department, Bush also kept in place none other than Glenn Fine.

Clinton took time out from pardoning terrorists and fraudsters in the waning days of his presidency to install Fine as DOJ inspector general, with a staff of 400 investigators and a mandate to investigate the department’s inner workings. Bush has kept him for the entire eight years, as Fine has taken it on himself to scrutinize everything from detainee treatment through the FBI’s use of its Patriot Act powers — issuing reports that often became political fodder by overstating mistakes and improprieties. We doubt that an Obama administration would retain a Bush appointee to be the conscience of its Justice Department (and doubt much more that a Democrat-controlled Senate would consent to such an appointment).

Back in August, Mukasey announced he was declining to seek criminal prosecution against those who violated civil service regulations by infusing politics into DOJ hiring decisions during Gonzales’s tenure. As he said at the time, “Not every wrong, or even every violation of the law, is a crime.” Just so. Obviously, had Mukasey declined to act on Fine’s report, the next administration’s attorney general would likely have done so. By acting now, Mukasey was at least able to choose the special counsel (who will not be fully independent — she will report to the deputy attorney general). We can only hope Nora Dannehy, the U.S. attorney from Connecticut whom he selected, shares Mukasey’s notion of prosecutorial restraint. If you’re wondering why that’s important, ask Scooter Libby.