On June 8, Attorney General Eric Holder assigned the U.S. Attorney for the District of Columbia, Ronald C. Machen Jr., and the U.S. Attorney for the District of Maryland, Rod J. Rosenstein, to lead criminal investigations into recent instances of possible unauthorized disclosures of classified information to the New York Times.
Conservative blogger Duane Lester noticed that Machen is an Obama donor and in fact an early one: “Machen donated $4,350 to Obama’s campaigns. He gave $250 to Obama’s U.S. Senate campaign in 2003, a year before Obama, then an Illinois state senator, emerged on the nation’s political radar, according to campaign finance records.”
As every U.S. Attorney serves at the pleasure of the president, the attorneys are already in the odd position of investigating the staff of the man who appointed them — and who can fire them. Any indictment would likely become a major issue in this year’s closely fought presidential race.
The Department of Justice describes the 93 U.S. Attorneys as “the nation’s principal litigators under the direction of the Attorney General.” Each one manages investigations and prosecutions in a given state or a portion of a state. Forty-seven of these attorneys have not donated any money to any candidates for office in the past six years, according to records available from the Center for Responsive Politics.
Collectively, the remaining 46 have donated $235,651 to President Obama, the DNC, and Democratic candidates since January 1, 2007. Not one has donated to any Republican candidate. Of the 46 who donated, 36 donated to President Obama’s presidential campaign in 2008, or his reelection campaign this year, or both, for a total of $77,782.
If Holder was determined to have two U.S. Attorneys handle this investigation of the White House, he could have chosen any one of 46 others to partner with Rosenstein. Instead, he selected the seventh-biggest Obama donor among them.
Most of the donations from these individuals were made before they became U.S. Attorneys, when they were in private practice or in less-senior positions in the U.S. Department of Justice. But several current U.S. Attorneys have donated to the president’s reelection bid this year, including Benjamin Wagner, U.S. Attorney for Eastern California; Charles Oberly of Delaware; Pamela Marsh of Northern Florida; Kerry Harvey of Eastern Kentucky; Michael Cotter of Montana; William C. Killian of Eastern Tennessee, and Sarah Saldana of Northern Texas.
Interestingly, records indicate that several of the donors gave more than the legal maximum and had their run-over sums returned to them: Melinda Haag of Northern California; David Fein of Connecticut; Oberly and Cotter; William M. Nettles of South Carolina, and Jenny Durkan of Western Washington. Each of the donations is legal once the amount over the legal limit is returned.
Senate Judiciary Committee ranking member Charles Grassley (R., Iowa) argued at a hearing with Holder that Machen and Rosenstein were far from the ideal figures to conduct a sensitive investigation like this:
Based upon conflicts between the Attorney General’s past statements and actual Department practice, I am concerned about the decision to appoint two political appointees — U.S. Attorneys — to investigate this matter. Further, despite attempts to package this as a special prosecutor, the Attorney General’s decision to assign these two U.S. Attorneys treats this grave national security matter like a regular criminal investigation. The only reason these U.S. Attorneys were assigned to the investigation is because of their proximity to where the conduct likely occurred. On top of all this, there have been reports that that the National Security Division at the Department has been recused from involvement in the leak investigation — a signal they could possibly be the source of the leak.
Grassley would prefer an independent prosecutor.
This is not the first time the political activism of one of Obama’s U.S. Attorney selections has turned heads. In February 2010, Obama’s announcement of Tim Purdon to be U.S. Attorney for North Dakota surprised some, as he was a then a member of the Democratic National Committee.
Andrew Malcolm of the Los Angeles Times reported at the time that Purdon, who specialized in personal-injury suits, had no prosecutorial experience. Bill Brudvik, a disappointed candidate for the U.S. Attorney’s spot, told the Forum of Fargo-Moorhead: “When President Obama said he wanted to restore the independence and dignity of the U.S. attorney’s office, in light of the Alberto Gonzales fiasco, and then appoints a political activist and party fundraiser, it seems a little to me more like ‘politics as usual’ than ‘change we can believe in.’” Purdon remains the top prosecutor in North Dakota.
Some veterans of the George W. Bush administration say that this is not the most dramatic example of a politicized Justice Department, but that Machen’s past support for the president makes him a problematic choice to investigate allegations of leaks from Obama’s senior staff.
“I don’t have a problem with political donations from U.S. Attorneys, because these positions are ultimately political appointments,” says Hans A. von Spakovsky, senior legal fellow at the Heritage Foundation and formerly a senior lawyer in the Justice Department’s Civil Rights Division. “However, any time a U.S. Attorney’s office gets a case where the target is someone they’ve given funds to, clearly and obviously that attorney needs to recuse himself and hand over the reins.”
In most U.S. Attorneys’ offices, the role of the first assistant U.S. Attorney is often a career prosecutor and not appointed by the president. For the job of investigating alleged leaks from the White House, presumably Holder could have chosen two first assistant U.S. Attorneys who were not appointed by the president.
Von Spakovsky said that the problem with Holder appointing both Machen and Rosenstein is less Machen’s donations than that they’re investigating the staff of the man who appointed them. He pointed out that when the Valerie Plame leak was investigated, Attorney General John Ashcroft recused himself and Deputy Attorney General James B. Comey referred the case to the U.S. Department of Justice Office of Special Counsel, where it was handled by Patrick Fitzgerald.
“I don’t think the ethical rules require the president to appoint U.S. Attorneys who haven’t contributed to him,” von Spakovsky said. “However, the better choice for this investigation would have been to pick U.S. Attorneys who hadn’t made any contributions. You often hear the phrase from Democrats, ‘avoiding the appearance of impropriety.’”
“The appearance of impropriety”: What other phrase better describes one of Obama’s earliest campaign supporters investigating whether the president’s staff leaked classified information to help his reelection campaign?
— Jim Geraghty writes the Campaign Spot blog on National Review Online.