Author Archives: Michael Froomkin

As Senators start to pile on our lamentable Attorney General for presiding over Karl Rove’s politicization of the US Attorneys Office — an offense known as ‘obstruction of justice’ — I would like to direct your attention to a similar but somehow forgotten scandal.

Everyone seems to have forgotten that then-White House Counsel Alberto Gonzales also presided over one of the more sordid aspects of the Plame scandal. When Gonzales first learned that the Justice Department had started an official investigation into the Plame leak, Gonzales waited twelve hours before putting the White House staff on notice that they had to preserve documents and electronic files. Which seemed than — and seems now — like an open invitation to “shredding and deleting,” not to mention getting your story straight. In short, obstruction of justice.

And it’s not as if Gonzales dithered trying to make up his mind what to do. He told White House Chief of Staff Andy Card about the investigation right away — many hours before sending the official notification to preserve all evidence.

Here’s how Senator Harkin described the sequence of events back in October 2003:

On September 26, the Department of Justice officially launches its investigation.

Interestingly, it took 4 days after that “official” launch for the Justice Department to call White House Counsel Gonzales and notify him of the official investigation. Gonzalez then asked for an extra day before the Justice Department gave the White House the official notice, which means all documents and records must be preserved.

A recent letter was sent to the President from Senators Daschle, Schumer, Levin, and Biden which also expresses concern about this break from regular procedure.

They wrote:

Every former prosecutor with whom we have spoken has said that the first step in such an investigation would be to ensure all potentially relevant evidence is preserved, yet the Justice Department waited four days before making a formal request for documents.

Interestingly, the letter goes on:

When the Justice Department finally asked the White House to order employees to preserve documents, White House Counsel Alberto Gonzales asked for permission to delay transmitting the order to preserve evidence until morning. The request for a delay was granted. Again, every former prosecutor with whom we have spoken has said that such a delay is a significant departure from standard practice.

Lest you think this is much ado about nothing, consider that when Patrick Fitzgerald came looking, key emails to or from the Vice President’s office mysteriously could not be found in the White House computer system’s archives.

Here's TPM Muckraker's summary of report by Profs. Donald Shields and John Cragan on the very partisan tilt to Bush appointees' corruption investigations. (This is the report that got mentioned in Paul Kurgman's op-ed today):

A study of reported federal investigations of elected officials and candidates shows that the Bush administration’s Justice Department pursues Democrats far more than Republicans. 79 percent of elected officials and candidates who’ve faced a federal investigation (a total of 379) between 2001 and 2006 were Democrats, the study found – only 18 percent were Republicans. During that period, Democrats made up 50 percent of elected officeholders and office seekers during the time period, and 41 percent were Republicans during that period, according to the study.

It is pretty damning to learn that the US Attorneys who were not fired — presumably because they were more pliable than the Gonzales Eight — were investigating seven Democratic candidates and office-holders for every Republican, but even so, I wish I had a link to the paper because there's a lot more I'd like to know.

How did relative investigation rates compare in previous administrations of both parties?

How do the conviction rates of investigated Dems and Reps today compare with each other and with historical rates?

Armed with these facts, I could figure out whether

(A) the investigation-to-conviction rate for Democrats was as high as for Republicans, suggesting that so many officials in both parties are corrupt that this is a case of political opportunism in a target-rich environment (which would be bad), or

(B) the investigation-to-conviction rate for Democrats was much lower than for Republicans, meaning that honest people were subject to bogus investigations concocted for political gain (which would be much worse). Ditto for historical comparisons.

Plus, if the investigation-to-conviction rate should prove to be lower for Republicans than historically, it suggests that the investigations into Republican wrongdoing were either mis-aimed or mis-handled, for I think it stretches credulity to suggest that today's GOP is less corrupt than yesterday's.

But all this is speculation without more data.

Cartoonist Ben Sargent — a big-time, mainstream syndicated cartoonist — breaks a huge taboo in this cartoon drawn for his hometown paper, the American-Statesman.

Inspired, perhaps, by the evidence that Bush-appointed US attorneys were seven times more likely to investigate Democrats than Republicans, or perhaps inspired only by the general stench coming from the “Gonzales Eight” scandal, Mr. Sargent draws a cartoon that quite clearly equates GOP appointees with jackbooted fascists. There’s no swastika, but we don’t need to be told what that means. It means Nazis.

Until now, any invocation of that parallel has been so taboo that any person making it was immediately voted off pundit island.

I predict, however, that any attempt to make a fuss about Sargent’s cartoon will fizzle.