Elizabeth de la Vega: The Problem With Alberto

After a day of testimony that showed Alberto Gonzales to be so self-contradictory, so conveniently vacant and - at times - so simply risible that even radio listeners could feel the disgust that permeated the Senate Judiciary Committee hearing room, we are all waiting to learn the attorney general's fate: Will he be pushed over the side, take a dive off the plank or simply hang onto the railing of the wreck the Bush administration has made of the Department of Justice?

Certainly, Gonzales is unfit to be the nation's chief law enforcement officer. We knew that before he testified on April 19. We knew that before he was even confirmed. No one who signs off on tortured legal memos authorizing torture, kidnapping and illegal detentions is fit to be the attorney general of the United States. But the departure of Alberto Gonzales will not right the listing ship that is the Justice Department.

Why? Because the problem with Alberto is that Alberto is only part of the problem.

The real problem with the Bush administration's Department of Justice right now is that it is run by the Bush administration. Gonzales's Justice Department is the Bush administration's Justice Department. Therefore, Gonzales's story about the US attorneys scandal is the Bush administration's story. And even though the Bush White House has come up with some fabulous tales over the past six years, this one is a corker: Amazingly - the White House would have you believe - the list of US attorneys who should be "pushed out" was spontaneously generated without the benefit of human agency! Can you believe it???

Actually, no. Not even the most credulous - or biased - audience can suspend disbelief to that extent, which is why Gonzales struggled so mightily yesterday to convince everyone to stop obsessing about the facts of his account. Rather, Gonzales, as the spokesman for the White House, wanted us all to understand that, notwithstanding the considerable effort that was put into "reviewing" and then replacing US attorneys around the country, the US attorneys are, in fact, irrelevant.

Utah's Senator Orrin Hatch had apparently been clued in on the talking points. From time to time, he would lob questions to the attorney general along the lines of "Do the US attorneys actually handle the public corruption cases themselves?" The well-coached and grateful Gonzales would then explain that, no, the work in the US attorneys' offices is done by the career prosecutors, who will keep doing their cases no matter who the US attorney is. Indeed, Gonzales offered plaintively, the Office of the Attorney General didn't really even know "that much" about what was going on in the US attorneys' offices.

As one who worked as an assistant US attorney from 1983 through 2004 - in two districts, under four presidents and roughly ten different US attorneys - I can say that virtually every clause, and certainly the overall implication, of Gonzales's claim is false.

It is not true, for starters, that the AG's office does not know "that much" about what is going on in individual districts. US attorneys' offices have traditionally had to submit to Washington a frustratingly large number of reports, but the Bush administration has tripled those requirements, mandating weekly, monthly, yearly and sometimes even daily reports about every conceivable category of prosecution. Assistant US attorneys must now obtain prior approval from DOJ for indictments, plea agreements and sentencing recommendations in an unprecedented variety of cases. In some instances - the cases that arose out of the pre-Christmas 2006 mass arrests of illegal aliens, for example - the Bush administration Justice Department simply mandates exactly what the charges, plea agreement and sentence must be.

Then there's the "Urgent Report" system instituted at DOJ in recent years. Section T3-18.200 of the US Attorney's Manual requires US attorneys' offices to send immediate reports to the highest levels of the attorney general's office whenever there are "major developments" - defined to include even procedural motions - in "important cases," which include any cases that present a "high likelihood of coverage in news media, or Congressional interest."

For cases involving public figures, the US Attorney's Manual requires that "appropriate officials, including the assistant attorney general for the Criminal Division, the associate attorney general, the deputy attorney general and the attorney general" be advised of the initiation of any case "in which public figures or entities are subjects of the investigation." Bottom line? The attorney general is notified immediately, not just when charges are brought in a public corruption case, but when the file is opened and every time that any activity, even procedural, occurs in the case. It was precisely such an Urgent Report that former San Diego US Attorney Carol Lam used to notify the attorney general's office on May 10, 2006 that search warrants were going to be conducted in the Randy "Duke" Cunningham case. The next day, of course, was when Alberto Gonzales's top aide wrote an email talking about the "very real problem we have right now" with Carol Lam.

It is equally untrue that the replacement of a US attorney could have no effect on public corruption cases because those will continue under the steady hand of career prosecutors. Before an assistant US attorney can issue even a single subpoena in a case, he or she has to fill out a "green sheet" - a case initiation form that is actually white - in order to cause a file to be opened. Given that opening a file in a public corruption case triggers the "Urgent Report" requirement, and knowing that the Bush administration has apparently removed its own Republican appointees for investigating Republicans, anyone with a brain and a mortgage would think twice - heck, even three times - before filling in the blanks on that theretofore innocuous form.

Even if the intrepid career prosecutor completes the case initiation paperwork, a US attorney who is either fearful of - or beholden to - the Bush administration, rather than to the laws and Constitution of the United States, can simply fail, for no particular reason, to sign off on the form. Without leaving a single shred of evidence, in other words, the US attorney can stop a controversial investigation before it has even begun. At almost any stage, the ways to stymie or even completely kill off a prosecution are unlimited. Here are a few: Give the assistant US attorney a slough of additional cases that require immediate action because the defendants are in custody; insist that the FBI agents on the case be reassigned to an investigation the US attorney claims is more pressing; make unreasonable and never-ending demands about investigative leads that have to be pursued before the proof is considered sufficient; deprive the assistant US attorney of all prosecutorial discretion or - and this is an extremely creative one - promote him to a supervisory position so he has no time to work on the case.

It is not just public corruption cases that are negatively impacted by the Bush administration's promotion of loyalty to the president and to individual US attorneys as the highest values in the Department of Justice at the expense of integrity and the prudent exercise of independent judgment on the part of its lawyers. This distorted ethos affects all of the cases, because what happens to career prosecutors under such circumstances? They leave. Indeed, that is precisely what happened in the Northern District of California. There, the US attorney, Kevin Ryan, was decidedly a "company man" who, like those in the inner circle of the Bush administration's Department of Justice, equated dissent with disloyalty. During Ryan's four-year tenure, 50 of the office's 100 lawyers - including myself - left, taking with them a total of approximately 500 years of experience. In the end, because of the intervention of the district's chief judge, Ryan himself was asked to resign, but the office will take a very long time to recover.

So no one should be fooled by the White House's current attempt, through Gonzales's Congressional testimony, to suggest that its unprecedented firing of US attorneys for partisan political reasons was a trifling matter with no real consequences. No one should be fooled by their current attempt to save themselves from drowning by suddenly grabbing onto the very career prosecutors they've been throwing overboard in droves during the past six years.

Most important, however, no one should be fooled into thinking that shoving Alberto Gonzales into the drink will get the Department of Justice back on course. The Department of Justice, like the Department of Defense, the Department of State and every other agency of the federal government, has lost its way because of the motley crew that is commanding the entire fleet: Karl Rove, Dick Cheney and George W. Bush, in no particular order.

Congress, please maintain your watch regardless of the fate of Alberto Gonzales.

Elizabeth de la Vega, a former federal prosecutor with over 20 years' experience, was a member of the Organized Crime Strike Force and Chief of the San Jose Branch of the US attorney's office for the Northern District of California. A regular contributor to Tomdispatch as well as the author of "United States v. George W. Bush et al.," she will be appearing in the Boston area and Seattle in the coming months. (See schedule at www.sevenstories.com.) Ms. de la Vega may be contacted at Elizabethdelavega@Verizon.net.

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