James Comey's Testimony, and His Continuing "Errring on the Side of Neutrality and Independence":
Former Deputy Attorney General James Comey testified before the House Judiciary Committee today, and his recollection of the work of the 8 fired U.S. Attorneys stood in sharp contrast to Attorney General Alberto Gonzales's official line. The gist of Comey's testimony: Most of the fired U.S. Attorneys were outstanding, and they certainly weren't fired for what you would traditionally think of as "performance" reasons.
Listening to Comey's testimony reminds me of this fascinating 2004 Legal Times story (that I blogged about here and here) on why the universally-respected Comey was not likely to be nominated for the Attorney General slot when Ashcroft stepped aside. From the introduction of the 2004 story, with emphasis added:
Listening to Comey's testimony reminds me of this fascinating 2004 Legal Times story (that I blogged about here and here) on why the universally-respected Comey was not likely to be nominated for the Attorney General slot when Ashcroft stepped aside. From the introduction of the 2004 story, with emphasis added:
There are a number of candidates who could be tapped to replace John Ashcroft as attorney general if President George W. Bush wins re-election. But perhaps the most obvious choice, Deputy AG James Comey, almost certainly will not be.Comey still has this "problem," it seems. Of course, the White House's eventual pick, Gonzales, does not.
Since his confirmation as the No. 2 Justice Department official in December 2003, sources close to the department say Comey has had a strained relationship with some of the president's top advisers, who feel that Comey has been insensitive to political concerns.
According to several former administration officials who spoke on the condition of anonymity, tensions were sparked when Comey appointed a special prosecutor to take over the investigation into whether a White House official leaked a Central Intelligence Agency operative's name to the media. The special prosecutor, U.S. Attorney Patrick Fitzgerald, has doggedly pursued the probe, and several administration officials, including presidential adviser Karl Rove, have been questioned by prosecutors.
Distrust of Comey deepened after some of his early staff picks were vetoed by the White House for not having strong Republican credentials, sources say.
"The White House always wants to make sure the administration is staffed with people who have the president's best interests at heart. Anyone who resists that political loyalty check is regarded with some suspicion," says one former Bush administration official. "The objective in staffing is never to assemble the best possible team. It is to assemble the best possible team that supports the president."
Earlier this year, after the disclosure of internal administration memos that seemed to condone the torture of suspected terrorists overseas, Comey pushed aggressively for the Justice Department's memos to be released to the media and for controversial legal analyses regarding the use of torture to be rewritten.
In a deeply partisan administration that places a high premium on political loyalty, sources say Comey — a career prosecutor and a former U.S. Attorney for the Southern District of New York — is not viewed as a team player.
"[Comey] has shown insufficient political savvy," says the former official. "The perception is that he has erred too much on the side of neutrality and independence."
If this has any substance, it would be a good reason that Comey is unlikely to get the top job at Justice in this Administration, and maybe even in the next. Not that what he did was legally, or even ethically wrong, but rather politically it did serious damage to the Administration.
I don't think I follow. What was the mandate that you think Comey gave to Fitz, and why was it overbroad, and what DOJ guidelines did it allegedly violate? I hadn't heard about this.
Victoria Toensing called, she wants her story back.
Richard Armitage called, he wanted to gossip about CIA employees, because it's not illegal when he does it.
I don't know of anything Gonzalez has done to merit being AG, but when was the last time an Administration official would have disagreed with the sentiment, "The White House always wants to make sure the administration is staffed with people who have the president's best interests at heart"?
How so?
Here are the letters and memo giving him his mandate. None of them appear to give him power to ignore charging guidelines, etc.
I find it hard to believe that this is not always the case in every administration. The whole point of having political appointees is to appoint staff who support the President and his agenda.
Seriously. If you were CEO, would you hire only yes-men with inferior skills to run your programs? Or would you, indeed, seek to install the best team possible that would provide you with a balance of loyalty and the independence to speak up and let you know when you were off track?
Wow, if you don't know that the Attorney General has always been a political appointee since 1789, I don't know what to tell you.
Seriously. If you were CEO, would you hire only yes-men with inferior skills to run your programs? Or would you, indeed, seek to install the best team possible that would provide you with a balance of loyalty and the independence to speak up and let you know when you were off track?
Someone who is loyal need not be an incompetent yes-man (though to be sure, that seems to be the case often enough in this administration).
Someone who is not loyal is useless and dangerous, regardless of how competent they are.
The President, like any CEO, has the right and the duty to appoint staff who will carry out his agenda loyally and effectively. That does not make the staff automatic "yes-men with inferior skills".
Of course not. Arguing that the AG is - and should be - loyal to the President is NOT the same as arguing that everything that has happened in the DOJ in the last few years is OKAY.
In my view, Gonzales is either a fool or a villain (or both) and clearly needs to go. This does not mean, however, that the President has not the right and the duty to appoint someone loyal to him to run the DOJ.
You would think they would understand that the loyalty an AG or member of the DOJ should have, first and foremost, is loyalty to the rule of law and the neutral administration of justice.
I guess not with the right-wing. It is interesting to observe the right become so extreme. And they wonder why they are about to be kicked to the curb in the next Presidential election.
One thing voters don't want is a politicized DOJ. Rather, what they want is a DOJ who upholds the rule of law.
Ahem.
Does the fact that they are employees of the federal government (who have in many cases actually taken oaths to defend the Constitution, uphold the law, etc.) have no bearing on anything here? We're not talking about good faith stuff here either, with the DoJ stuff we are talking about full-on use of the department and its personnel as Republican political tools, whether it is consistent with the law or not.
You can be loyal to the president without servicing his every desire no matter what it is, and you certainly cannot discharge your duties as a government official when your only criterion is pleasing George Bush at any cost.
This position was first articulated by Andrew Jackson. He changed the nature of the cabinet considerably. Prior to Jackson, Washington's policy of hiring the best and brightest who could then offer the best advice to the president held. Jackson said that the point of any government official is not to offer advice but to carry out the will of the President, which was also the will of the people who elected the president.
Ever since Jackson's "spoils system/rotation in office" innovation, incoming administrations have had to decide what model to follow. Some prefer to hire bright people who will get the job done and offer advice. Lincoln and Reagan are too examples. Lincoln and Reagan both articulated broad political objectives and then let their cabinet officials recommend courses of action. Bill Clinton followed this model too - but in his case informational paralysis/concern with the polls meant that all the advice from the cabinet just became a sophomoric bull session.
Some presidents have followed the Jackson model. Bush is one of them. I'll leave it to the Volokh readership at large to determine if the nation has been well served by the appointment (and retention) of incompetent but politically loyal officials.
That is not the same thing as providing evidence that he is, in fact, politically neutral and independent.
"Deputy chief of staff Karl Rove participated in a hastily called meeting at the White House two months ago. The subject: The firing of eight U.S. attorneys last year. The purpose: to coach a top Justice Department official heading to Capitol Hill to testify on the prosecutorial purge on what he should say."
Anyone who would defend that, and plenty here will it seems, must be a paid operative of the RNC, since no one could be so dumb for free.
An AG's first loyalty must be to the American people and Constitution. His or her loyalty to the president is always a distant second.
To fight a war? Why did FDR take in Knox and Stimson? JFK named a Republican Secretary of Treasury.
The US political establishment has been such that no Republican president has ever felt it necessary to take a Democrat into his Cabinet, so far as I can remember.
Why would Gonzales want to stay in his current position, being humilated day after day and being exposed as a pawn who was not, in fact, running the department?
Otherwise, what Special Guest said.
"Loyalty above all else, except Honor."
You remain loyal to your chain of command, except when that loyalty requires you to dishonor yourself, the institution or the Law, itself.
Loyalty in the DoJ is commendable. But when it is taken to the point of undermining the Rule of Law and the trust the nation has in its prosecutors, it undermines our Republic and dishonors all of us.
The next non-lawyer who votes for President on that issue will be the first.
Other than the current president of course. Norm Mineta.
Well, THIS president had a Democrat, Norman Mineta, as Secretary of Transportation for five and half years.
You have only to look at the innumerable knives sticking in Pres. Bush's back to see why he prizes loyalty. As did all of this predecessors. How else do you explain Bobby Kennedy being AG? Of course, it is always OK when a Dem does it.
You folks on the Left would have a whole lot more credibilty if you didn't live in a black/white world where Dems are philosopher kings and Reps are scoundrels. It just makes you look silly (and completely unserious).
I call shenanigans.
No honorable president/district attorney would require his appointees to use the legal system to aggrandize his friends and punish his enemies. If Bush or Gonzales or Rove did that then they should be condemned. If not, then, sure the boss should hire someone who is willing to effecutate his policy initiatives (no reduced pleas in DUI's for example).
Are you saying that no one in the DoJ or the White House did anything wrong in this episode? Or that they did do something wrong and that we nevertheless should not be shocked by the wrongdoing?
I think most of us know the difference, but we also know the difference between not being a yes man and following the Bush Derangement Syndrome agenda.
OTOH, Bush should well know the difference, with his business management background, but something's gone wrong. Either Bush isn't competent to pick good subordinates, or he's unable to keep their loyalty.
What has JFK's Secretary of the Treasury got to do with fighting a war?
Did Truman have a Republican SecDef during the Korean War? Did LBJ have a Republican SecDef during Vietnam? No. So much for that argument.
The US political establishment has been such that no Republican president has ever felt it necessary to take a Democrat into his Cabinet, so far as I can remember.
John Connally, Nixon's Secretary of the Treasury.
Ha. Aren't you old enough to remember the relentless media attacks on Reagan's subordinates? The likes of Watt, Meese, Pierce, Poindexter, and McFarlane are now good examples of appointing bright people and letting them get their jobs done?
Huh? That's the whole scandal that started out this whole mess -- the allegations that prosecutors were fired because they weren't going after politically advantageous corruption or voting fraud cases in an election year.
Similarly, his defense of the fired USAs falls a little flat, especially the bit on Lam. The paper trail shows both sides were unhappy with her immigration prosecutions . . . one of the few points of agreement. Considering the hot-button nature of immigration at the time, the contention it couldn't be the actual cause is a bit hard to credit.
No one is asking for an AG who is neutral with respect to policy. We are asking for prosecutors who do not, for example, fire underlings for investigating corruption in one political party and reward underlings for creating spurious corruption investigations into the other political party.
It speaks volumes that loyalty to the Bush/Rove agenda requires ignoring the Canon of Ethics (and the law, generally). Are we still swearing an Oath to the Constitution, or have we regressed to something more, uh, feudal.
Heil BushRove!
Neutral and independent from what? The elected head of the executive branch of government? To whom would this official be accountable, then? The Judiciary? He's already accountable to Congress, and is being called to account. I don't see how making him LESS accountable would help. I certainly don't see how giving him a long term would be an improvement.
I think the point of the AG is to be politically influenceable. The courts are apolitical.
Of course, I don't demand that he be _incompetent_.
Ok, I will spell it out for you. Acceptable political influence on prosecutors has to do with blanket policies based on how to best expend limited resources in order to advance the goals of the justice system. An example of this would be the politically-influenced efforts of federal prosecutors to "get tought on guns" by "adopting" state gun charges and turning them into federal prosecutions with their stiffer penalties. In order to apply this policy, prosecutors set up a system to review possible cases, decide which ones are worth going after, work to get the cooperation of the local authorities, etc. It operates on the level of general policy rather than top-down intervention into specific cases.
Unaccepted lack of neutrality is using *individual* prosecutions (either dropping them or initiating them) for specific political gain.
Can you really not see the difference, or the threat to the whole system if each individual prosecution is now suspected of having political motivations?
It was my understanding that Robert McNamara was, in fact, a Republican.
An excellent example of the very black-and-white thinking you decry.
Quelle ironie!
If that's really why Lam was fired, why did the DOJ never tell her that her job was on the line? Why, when Sen. Feinstein asked DOJ how Lam was doing on immigration, they gave her an all clear? Why, when Lam was fired and she asked why, couldn't the DAG tell her the reason?
Honestly, the first point is the most incriminating. Who, when dissatisfied with the performance of an employee, fires them without at some point communicating prior dissatisfaction? That is not how real human beings act. While Lam was under a bit of fire for immigration (as pretty much any border USA faces at one time or another), DOJ never really had a problem with her performance until they needed to find an excuse.
So is William Jefferson going to be an excuse for everything now? It's okay that Republican after Republican gets sent to jail because of Jefferson? It's okay that USAs investigating Republicans get canned for phony reasons because of Jefferson? Hey, if you tried really hard you might be able to justify the Iraq War because of Jefferson to. I'm thinking something of the line of: "So Rumsfeld and Doug Feith, honest Americans trying to keep their nation safe are kicked to the curb, while "Dollar" Bill Jefferson is still smiling on Capitol Hill? Maybe the WMD are in his fridge!"
And what if one of those independent and neutral AUSAs say to the President, "Forget about it. I am doing my own thing here."? I think the President is fully in his rights to fire that person without going through a long process to do so.
I am fine if people want to criticize the Bush administration for firing the AUSAs or exherting improper influence over them. However, I don't want is to take away accountability of bureaucrats to elected officials.
Nope. See Shapley's biography, p. 59. He was a Democrat who voted for liberals, and defied the stodgy Republicans at Ford by living in Ann Arbor.
Ah!! The very response I was looking for! Unfortunately, I got bored with this thread, and didn't check back very often. It gets tough waiting days to score some little debating point.
Anyway, if you still care, the point of my post was simply this-- both sides have politicized the office of the AG. Always have; always will. But, for some reason, all you fellows on the Left want to argue the absurd position that this doesn't happen under Democratic Administrations. The Clintons were solely interested in the abstract administration of pure justice, and everything was wonderful until that scurrilous fool Bush came in an sullied everything.
That is the absurd black/white position that all you folks are arguing over and over on this thread. It is silly. And unconvincing. Which is not to say that I think the Democratic Left is silly in everything it says, or all of its positions (which is what I believe you are accusing me of). Just this one.
The very silly one.
Badger: where do the people come in? The oath from 5 USC ยง 3331 which states the following:
"An individual, except the President, elected or appointed to an office of honor or profit in the civil service or uniformed services, shall take the following oath: :
"I (name), do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely without any mental reservation or purpose of evasion; and that I will well and faithfully
discharge the duties of the office on which I am about to enter. So help me God."