DOJ Emails Illustrate Plan to Mislead Congress

Embattled Attorney General Alberto Gonzales and his closest advisers have stated repeatedly over the past two months that the selective firings of eight United States attorneys last year were justified because President Bush has the authority to purge federal prosecutors at will, a fact that is not under dispute.

However, the common thread in the thousands of pages of documents released by the Department of Justice in conjunction with a Congressional probe into the US attorney dismissals is that top officials in the DOJ who worked behind the scenes believed that they were doing something improper in selectively dismissing the attorneys and acted with a clear intent to deceive lawmakers if any questions into reasons for the firings arose.

Instead of pointing to the president's broad discretion to fire the prosecutors, Justice officials conceived a plan that they would execute on a specific date and time, and then cooked up a story that they all agreed upon in the event that their actions were scrutinized. Simply put, some former US attorneys argue, the emails and other documents released last week demonstrate that prior to the day the firings took place, officials in the Justice Department appeared to be acting under a guilty state of mind.

The state of mind of officials involved in the firings is part of the reason the US attorney purge has turned into a full-blown political scandal and has led to Congressional hearings.

There "seems to be an awareness that the various officials involved in the process knew they were putting out misinformation in large measure; that is, this is evidence of an intent to deceive," said Michael E. Clark, a former US attorney for the Southern District of Texas. "It may not be criminally actionable, but arguably there could be a civil remedy available to those who were on the receiving end - such as for defamation of character. This episode has gained traction in my eyes for the same reason that spelled the fate of former President Nixon during Watergate. The deception is inexcusable, and particularly so when it wasn't necessary; instead, had Gonzales and others been more forthright, then this could have been a tempest in a teapot."

Other former federal prosecutors said the fact that Justice Department officials drafted a document titled "Plan for Replacing Certain U.S. Attorneys" and then allegedly fabricated a set of talking points for the media and lawmakers in the form of employment evaluations showing that the eight US attorneys in question were performing poorly is a clear indicator that DOJ officials knew what they were doing was questionable at best.

The emails demonstrated that "some of [the Justice Department officials] were uncomfortable with the "plan" to dismiss the US attorneys because they realized how unprecedented, disruptive and controversial their actions would be," said Laurie Levenson, a former assistant federal prosecutor in Los Angeles. Levenson recently testified before the House Judiciary Committee regarding the firings. "As for legal consequences of their actions, intent would be important if it could be shown that any of these dismissals were [...] an effort to disrupt or influence a particular criminal investigation."

Several lawmakers, including Senator Dianne Feinstein, (D-Calif.), have questioned whether the eight US attorney firings constituted an attempt to derail corruption investigations involving Republican officials, which the US attorneys who were fired were still working on.

However, Levenson, who now works as a law professor at Loyola Law School in Los Angeles, stressed that it is still a bit "premature" to draw that conclusion "because we still don't know if [the Justice Department was] playing politics or playing with particular criminal investigations."

Dan Richman, a former US attorney in New York, doesn't necessarily see deception at play based on the email traffic of the Justice Department officials, but rather awareness that the firings would touch a nerve among some members Congress and a discussion among the DOJ in dealing with the political blowback.

Even if "the staffers had simply been engaged in a plan to make room for new blood or to cull out [US attorneys] not aligned with the administration's enforcement priorities, they might still have worried about the fallout in Congress or within the DOJ community," Richman said. "The allocation of authority between Main Justice and the Districts [US attorneys are assigned to] has always been a sensitive issue."

On Tuesday, during a news conference in Chicago, Gonzales said he wanted to "reassure the American people that nothing improper happened here."

But it's the appearance of impropriety that has angered Congress and members of the legal community.

Indeed, some of the emails into the activities that predated the firings show that White House officials communicated with DOJ staffers about the attorney purge, using email accounts maintained by the Republican National Committee.

Using alternative email accounts also creates the appearance of impropriety, lawmakers charged Monday, because it allows White House officials to avoid the usual archival process and the automatic paper trail that is established when they use White House email servers to conduct business. Emails sent through the RNC server can be destroyed.

In letters sent Monday to the RNC and the Bush/Cheney 2004 Campaign, Congressman Henry Waxman (D-Calif.), chairman of the House Oversight and Government Reform Committee, urged the two groups to preserve all emails sent by White House officials from their servers, because of their relevance to the US attorney scandal.

One email the Justice Department released Friday to a Congressional committee shows that J. Scott Jennings, special assistant to President Bush and deputy director for political affairs, used an sjennings@gwb43.com email account to query a DOJ official about the pending US attorney vacancies.

"Does a list of vacant, or about-to-be-vacant, US attorney slots exist anywhere?" Jennings wrote in a December 3, 2006 email to Kyle Sampson, former chief of staff to Attorney General Gonzales. Gonzales is said to have approved the firings of eight US attorneys in what appears to be a politically motivated plot. Jennings' immediate boss is Karl Rove, White House political adviser, who, according to a report Friday in the National Journal, conducts 95 percent of White House business using an email account maintained by the RNC.

"My office. Want me to sent [sic] to you tomorrow?" Sampson replied to Jennings' private sjennings@gwb43.com account. Four days after the email was sent, the DOJ fired seven US attorneys. Earlier another US attorney had been fired. The firings have since been revealed as part of a plan that had been in the making for more than two years and was executed with the knowledge of White House officials, including Rove and former White House Counsel Harriet Miers. Both Rove and Miers have been asked to testify under oath before Congress about the firings, whether the action was politically motivated, and the roles they played in the firings.

Waxman said that in certain cases White House officials were using alternative email accounts to avoid creating an automatic paper trail of their communications about hot-button political issues.

Taken as a whole, Jennings' use of an outside email account to query Sampson on the status of the purge, and the creation of a five-point plan which stated that if pushed by lawmakers to justify the dismissals, DOJ officials should mislead lawmakers and say that each termination "is based on a thorough review of US attorneys' performance," would seem to suggest there were other reasons behind the firings. That is what Congress is trying to determine.

Truthout reporter Matt Renner contributed to this report.

Jason Leopold is a former Los Angeles bureau chief for Dow Jones Newswire. He has written over 2,000 stories on the California energy crisis and received the Dow Jones Journalist of the Year Award in 2001 for his coverage on the issue as well as a Project Censored award in 2004. Leopold also reported extensively on Enron's downfall and was the first journalist to land an interview with former Enron president Jeffrey Skilling following Enron's bankruptcy filing in December 2001. Leopold has appeared on CNBC and National Public Radio as an expert on energy policy and has also been the keynote speaker at more than two dozen energy industry conferences around the country.

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