So, armed with my cup of Starbucks (shade-grown Mexican), let me start off this new Blog by jumping straight into the middle of the today’s big hullabaloo: the storm over Attorney General Alberto Gonzalez and his firing of eight federal prosecutors under circumstances that suggest political coercion. Yes, federal prosecutors serve at the much-cited “pleasure” of the President, but tampering with the wheels of justice for political ends can be unethical at best and criminal at worst. And Gonzalez has already been caught making several public misstatements on the affair. Hence the big controversy.
Does history give us any useful guide for judging this episode? News commentators have been pointing all week to the numbers of federal prosecutors fired by various prior presidents over the years, the fact that Clinton and Reagan both fired the whole bunch of them at the beginnings of their respective terms, so on. But this misses the point. Nobody has ever argued that an administration does not have the right to make room for new political appointees by dropping some of the old ones. The concern, rather, is that someone in the Justice Department or White House might have been trying deliberately to influence the outcome of specific pending cases – to put people in jail, have them indicted, or protect lawbreakers from prosecution – based on politics. That’s where things get sticky.
Perhaps the starkest example comes from President Richard M. Nixon and the Watergate scandal of the 1970s. Nixon’s case of tampering with a federal prosecutor was a blockbuster – known ever since as the Saturday Night Massacre. His target was Archibald Cox, the bowtie-wearing Harvard law professor and former Solicitor General who had been appointed by Nixon’s own Justice Department as a Special Prosecutor for the Watergate case in May 1973. When Cox decided to ignore the president’s objections and insisted on trying to get his hands on important evidence in the case, specifically recordings of relevant Oval Office conversations that Nixon had secretly taped, Nixon decided to give him the boot. On October 20, 1973, Nixon ordered Attorney General Eliot Richardson to fire Cox. Richardson refused, as did his deputy Attorney General William Ruckleshaus, both of whom resigned rather than carry out the order. That left Solicitor General Robert Bork, the third-ranking official in the Justice Department, to do the deed.
Cox, too, technically served at the “pleasure” of the president; his independence was based solely on assurances given by Richardson. Still, when Nixon acted to break those asurances, the conflict was so apparent and the public’s reaction so hostile that Congress in 1978 passed a permanent law authorizing Independent Counsels on an ongoing basis in politically charged cases – a step intended to block future presidents from firing federal prosecutors in these situations. Neither side liked the result; Republicans complained about independent counsel aimed against them, such as Lawrence Walsh and his eight-year pursuit of the Iran-Contra scandal, just as Democrats complained about Kenneth Starr and his pursuit of the Whitewater-Monica-gate affair. Nobody shed any years when the permanent law expired in 1999.
Another case of political manipulation in Federal prosecutions goes back to the Teapot Dome scandals of the 1920s. Warren G. Harding was president then and Harry Daugherty, his Attorney General, presided over a Justice Department riddled with corruption unmatched either before or since – bribes, kickbacks, extortion, blackmail, you name it. When two United States Senators, Montana Democrats Thomas Walsh and Burton Wheeler, got wind of the scandals and threatened to investigate, Daugherty sent agents from the Department’s Bureau of Investigation (led by its then 27 year-old Deputy Director J. Edgar Hoover) to investigate the Senators, shadowing them and their families, wiretapping their phones, pilfering their offices, and tampering with their mail. They convinced a Grand Jury in Montana to indict Senator Wheeler for influence peddling, a charge later found to be baseless both by a Montana jury and a Senate investigating panel. When the truth finally came out, Daugherty and his circle were history, and Daugherty himself avoided prison only by the grace of hung juries in two separate criminal trials.
All of which brings us back to George W. Bush and his Attorney General, Alberto Gonzalez.
Richard Nixon’s Saturday Night Massacre and Harry Daugherty’s harrassment of Senators Walsh and Wheeler were extreme cases. Nobody suggests, based on the facts revealed so far, that the firings of the eight federal prosecutors rise to the eggregious levels of these benchmarks. Still, they make a point. If evidence ultimately shows that the firings were part of a system designed to pressure federal prosecutors into twisting the outcome of particular cases, to shield friends from prosecution, use grand juries to settle political scores, or to create phony issues in hotly-contested political elections, then all bets are off. The history gives us some clear lessons to keep in mind: First, federal prosecutors might serve at the “pleasure” of the president, but, pleasure or not, there are lines of ethics, propriety, and law that a president may not cross. Second, in the end, the truth always comes out. You can count on it. And finally, the Washington classic: it’s not the crime, but the coverup that gets you in trouble.