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April 27, 2007's Josh Marshall on the prosecutor firings

For six years the Democrats in Congress have suffered from what Jon Stewart might call subpoena envy. As the minority they didn't have the power to order anyone to testify before their hearings. But that's changed. Democrats are now in the majority, and they're issuing subpoenas as fast and furious as Zeus hurled thunderbolts from Mount Olympus.

That's a good thing if you think the parties should investigate and hold each other accountable. This week Congressional committees voted to subpoena Secretary of State Condoleeza Rice, Karl Rove's deputy at the White House, the Republican National Committee, and a former top assistant to The Attorney General, Alberto Gonzalez.

The floodgates are opening into whether the firing of certain federal attorneys - prosecutors - was meant to influence investigations into corruption. We learn something about that story from an online journalist whose reporters include people like you. We may be looking at the new face of journalism.

SENATOR LEAHY, Gonzales' Senate hearing (4/19/07): Stand and raise your right hand.

ATTORNEY GENERAL GONZALES: I understand why some of my statements generated confusion.

SENATOR CARDIN: After reviewing all of the facts, involved in the dismissals of the U.S. attorneys ...

SENATOR SPECTER: Your characterization of your participation is just significantly, if not totally at variance with the facts.

SENATOR LEAHY: How can you be sure that you made the decision?

A.G. GONZALES: I recall making the decision.


ATTORNEY GENERAL . GONZALES: Sir, I don't recall when the decision was made.

BILL MOYERS: One week after the testimony of the Attorney General Congress is still looking for credible answers to the mystery ... Why were eight federal prosecutors fired by the justice department?

ATTORNEY GENERAL . GONZALES NEWS CONFERENCE (3/13/07): All political appointees can be removed by the President of the United States.

BILL MOYERS: At first, Gonzales explained ... "They simply lost my confidence." He called the whole affair "An overblown personnel matter."

But the fired prosecutors didn't like that Gonzales had denigrated their job performance and they told Congress what they thought.

SENATOR SPECTER (3/6/07): Ms. Lam. Do you think that you were inappropriately removed?

CAROL LAM: Well, Senator, I think that it was unusual, given the tradition and the history of the United States attorneys within the Department of Justice.

BILL MOYERS: The Attorney General has insisted there was nothing improper about the firings but his stories about what he knew and how much he was involved kept changing.

ALBERTO GONZALES (3/13/07): " ... was not involved in seeing any memos, was not involved in any discussions about what was going on. That's basically what I knew as the Attorney General."

JOSH MARSHALL: That explanation just doesn't hold water if you become really familiar with the story.

BILL MOYERS: When Gonzales tried to downplay the affair Josh Marshall wasn't buying. He's the editor and publisher of popular blogs that feature investigative reporting and analysis Talking points memo and He's been covering this story almost from the start. Marshall says, it's all about the integrity of justice.

JOSH MARSHALL: The President appoints the U.S. Attorneys. They're political in a certain respect. But the Department of Justice — the power that they hold is so great, it's life and limb, you know — put you in jail, make you run up hundreds of thousands of dollars of legal costs. Even though we understand that political appointees take these jobs. We don't assume that the party in power is going to use that kind of power to advance its political interests. And that's what this is about.

BILL MOYERS: Marshall and his reporters belong to a new breed of journalists. They use the speed and breadth of the Internet to constantly update the story as they did last week during the testimony by Gonzales.

BILL MOYERS: How did you get on this story before anybody else? What drew you to it?

JOSH MARSHALL: I think the key is that we were on the Duke Cunningham story going back a year and a half ago.

BILL MOYERS: He was the member of Congress--

JOSH MARSHALL: Member of Congress, who had this flagrant bribery, and now is serving about a decade in prison. And because we were on-- we followed that so closely, when we saw that the prosecutor who had put him in prison, Carol Lam, who's the former U.S. Attorney in San Diego, when we saw that she was fired, that set off all sorts of alarm bells for us.

BILL MOYERS: What shocked you about it?

JOSH MARSHALL: Well, that someone who was involved in so many ongoing corruption investigations, that in various ways touched on the administration — the Bush administration — that someone like that would get fired during those investigations, that screamed some sort of tampering.

BILL MOYERS: So, based upon the journalism you've done, why do you think Carol Lam was fired? She was no liberal Democrat.

JOSH MARSHALL: Certainly not. Certainly not. She was appointed by George Bush. I think she was fired, because she was too independent, and she was bringing too much heat on Republican members of Congress, and members of this administration. She was doing her job too well. She was putting too many corrupt public officials in prison.

CAROL LAM (11/28/05): This was a crime of unprecedented magnitude and extraordinary audacity.

BILL MOYERS: Lam had successfully prosecuted Randy "Duke" Cunningham, a top Republican member of Congress. He pled guilty to accepting more than two million dollars in bribes from two different defense contractors.

CAROL LAM (11/28/05): It is abundantly clear that Congressman Cunningham let greed take priority over his duty to serve the best interests of his constituents and his country.

BILL MOYERS: Cunningham was sentenced to an eight year term in prison.

The chain of connections led to yet another power in Congress — the then-Chairman of the House Appropriations Committee, Jerry Lewis, who is still under investigation.

Then the ground in Washington really shook. Turns out, Lam was also after the Executive Director of the Central Intelligence Agency — the CIA's number 3 man — Kyle "Dusty" Foggo — suspected of conflicts of interest involving defense contractors.

FBI agents were even sent to CIA headquarters to search Foggo's office.

The day after Lam told her bosses at the Justice Department about the search warrants, the Attorney General's Chief of Staff, Kyle Sampson, sent this confidential e-mail to the White House complaining about Lam. He wanted to discuss the "... Problem we have right now with Carol Lam that leads me to conclude we should have somebody ready ..." To replace her.

JOSH MARSHALL: At this point Cunningham is already in prison. But she is onto people that Cunningham was working with. And this had brought her to the CIA, particularly a guy named Dusty Foggo. Just a day or two before this e-mail was written, she had notified the Department of Justice that she planned to execute search warrants on CIA headquarters. Not long after this happened, the number three resigned. The Director of the CIA resigned. It's still a little murky how all these things are related.

BILL MOYERS: Earlier this year, "Dusty" Foggo was indicted for corruption along with a well-connected defense contractor.

The indictments came two months after Carol Lam had been fired.

BILL MOYERS: When Lam was fired, and your antenna went off, where did the trail lead you?

JOSH MARSHALL: This was a case where our reporters were deeply versed in these public corruption investigations. We had been reporting on these cases for over a year. So, that gave us a context to understand what was happening. So, we put out the word that we thought there's been a bunch of firings. And we started getting tips from readers.

And one of the unique strengths of our journalism model is that we use our readers a lot to do basically sort of the front line research for us. That doesn't mean we just take things people say and print them-- willy-nilly. But, there's a wealth of information out there in small metropolitan papers around the country. So, there were reports about the Arkansas U.S. Attorney who had been fired, that was just in a local Arkansas media. And there was another similar case with the U.S. Attorney in Michigan.

BILL MOYERS: How many reporters do you have?

JOSH MARSHALL: During most of this, we had two reporters working on the story.

BILL MOYERS: With you as editor?


BILL MOYERS: So, when did you realize that this was more than a personnel story at the Department of Justice?

JOSH MARSHALL: I think the key moment for me was back, it must be a couple months ago now, when we found out that David Iglesias, the fired U.S. attorney in New Mexico, had sent an e-mail to a colleague, when he-- and he called his firing a "political fragging," the word that you use when soldiers kill each other soldiers on one side kill each other.

BILL MOYERS: Marshall first heard about this from another blogger in New Mexico. As he followed up, it became apparent that Iglesias, a Republican, had been "fragged" by his own party.

Two senior Members of Congress from New Mexico, Senator Pete Domenici and Representative Heather Wilson, had telephoned Iglesias asking him for information about sealed indictments in a politically charged investigation concerning state Democrats.

JOSH MARSHALL: Representative Wilson, who is Senator Domenici's protégé, was in a very tight race for reelection ... that she eventually won. But she, it would have been very helpful for her if a Democrat would have been indicted right before the election. That's why they called him. That's why the Senator and Representative called him, leaned on him to bring the indictment. He wouldn't. And I think that was it. And I think that's why he got fired.

BILL MOYERS: Iglesias told Congress he considered the call from Domenici highly improper.

DAVID IGLESIAS (3/6/07): And he wanted to ask me about the corruption matters or the corruption cases that had been widely reported in the local media. I said, 'All right.' And he said, 'Are these going to be filed before November?' And I said I didn't think so. And to which he replied, 'I'm very sorry to hear that.' And then the line went dead.

SENATOR SCHUMER: So in other words, he hung up on you?

MR. IGLESIAS: That's how I took that. Yes, sir.

SENATOR SCHUMER: And you didn't say goodbye or anything like that?

MR. IGLESIAS: No, sir.

SENATOR SCHUMER: Now did you take that as a sign of his unhappiness with your decision?

MR. IGLESIAS: I felt sick afterward. So I felt he was upset that -- at hearing the answer that he received.

SENATOR SCHUMER: Right. And so, is it fair to say that you felt pressured to hurry subsequent cases and prosecutions as a result of the call?

MR. IGLESIAS: Yes, sir. I did. I felt leaned on. I felt pressured to get these matters moving.

SENATOR SCHUMER: And as you say, it was unusual for you to receive a call from a senator at home while you were the U.S. attorney.

MR. IGLESIAS: Unprecedented. It had never happened.

BILL MOYERS: Senator Domenici wasn't just calling the prosecutor. He reached out to the White House where Karl Rove and the president had already passed onto Gonzales complaints that Iglesias was not moving on allegations that Democrats were voting improperly in local elections.

JOSH MARSHALL: The fact that he wouldn't bring what I think would have clearly been bogus indictments, put him on the outs with Republican Party officials in his state. And that led to a string of complaints from Republicans in New Mexico to Karl Rove, to the President. So, he was already on thin ice.

BILL MOYERS: The scandal has grown beyond the issue of prosecutors being fired. But there's a flipside to it, and that is who is being hired? What can you say about that?

JOSH MARSHALL: Over the course of last year, they were installing highly political U.S. attorneys in key swing states. And, in at least some of those cases, they clearly brought highly politicized prosecutions. So the eight U.S. attorneys is sort of like the big red flag. And it's the headline. But if you look beneath there, there's a deeper politicization that I think was happening throughout the U.S. attorney system.

BILL MOYERS: Consider this document now in the hands of Congress. It's a list, kept by the Justice Department, of all the U.S. attorneys who have served under President Bush.

Along with names it includes notes about prosecution, judicial, and political experience. Then, there's this additional, and surprising, column indicating whether or not they are members of The Federalist Society.

JOSH MARSHALL: The Federalist Society is this conservative legal organization. And I think, for the Bush administration, being a member of the Federalist Society meant you were-- a reliable, ideological, partisan Republican. It wasn't enough just to be registered as a Republican, or to be-- have a generally conservative judicial philosophy, or prosecutorial philosophy. It meant that, basically, meant that you were a real movement conservative, a Party regular. That's what being a Federalist Society member means.

BILL MOYERS: A network of kindred spirits committed to the same conservative cause.

JOSH MARSHALL: Yeah. It's being one of the-- it's being a member of that team in their eyes. And that kind of loyalty -- it's no accident that there's that line in Kyle Sampson's email where he talks about most of the U.S. attorneys being, "Loyal Bushies." That's really what it comes down to. Being political-- that kind of political loyalty.

BILL MOYERS: Marshall's case in point: Timothy Griffin. Attorney General Gonzales picked him last year to replace the fired prosecutor in Little Rock, Arkansas.

Griffin's reputation was as a highly partisan operative ... first doing opposition research for The Republican National Committee and then As Karl Rove's deputy in the White House.

According to an internal Justice Department e-mail ... "Getting [Griffin] appointed [as U.S. Attorney] ... Was important to ... Karl."

JOSH MARSHALL: This, I think, is an example of, a lot of people say, 'Well, they're political appointees.' There's a difference, though, between being a political appointee and putting a political operative in charge of a U.S. attorney's office. I mean an example is: I think James Carville is an attorney. But-- no-- it wouldn't pass a laugh test to make James Carville a U.S. attorney in Washington DC. He wouldn't have credibility. He's too political.

BILL MOYERS: And is Tim Griffin in that category of a political operative?

JOSH MARSHALL: Oh, absolutely.

BILL MOYERS: Such a partisan background for a sensitive prosecutor's post made it unlikely that Griffin's nomination would pass Senate Confirmation.

But the White House had a way around that obstacle. Earlier in the year, the Justice Department had seen to it that an obscure provision was sneaked into the Patriot Act.

JOSH MARSHALL: Basically, they slipped a provision in that allows the Attorney General to make interim appointments that last throughout that president's term. It's as simple as that. It basically--

BILL MOYERS: What's wrong with it?

JOSH MARSHALL: Well, we have a system of checks and balances. The Senate is supposed to sign-- it's supposed to approve nominees for U.S. attorney nominees. In the same way that the President doesn't just appoint the Secretary of State, he appoints the Secretary of State, and then the Congress votes. And if the Congress approves that person, that person becomes Secretary of State. They were getting rid of the advice and consent dimension to the U.S. justice system.

BILL MOYERS: So, what do you think was going through their mind that would cause them to think, 'We can get away with it? Nobody's gonna notice it-- eight prosecutors have been fired, and make a national story out of it.'

JOSH MARSHALL: I think it's really two issues. One is that this administration has had unified political control in Washington for almost all of the six years they've been in office. And that means they weren't used to Congressional oversight. They weren't used to having co-member-- committee chairmen who send out subpoenas and force people up to Capitol Hill to answer questions.

The other part of that story is, it's not just the Congress that fell down on the job in oversight. It was the press. You see this in the buildup to the war in the Iraq. How little-- how little critical scrutiny that the evidence the supposed evidence for weapons of mass destruction got. So I think on the press side, and on the Congressional side, the White House had gotten used to getting away with a lot of stuff.

BILL MOYERS: Speaking of credibility — you are a liberal. You don't hide the fact that you're a liberal. People who aren't liberal out there, ] can they trust your reporting?

JOSH MARSHALL: I think they can. I think that we have - I think that our organization has a track record. We, last year, there were all sorts of investigations of corrupt Republicans in Congress. There were also investigations of allegedly corrupt Democrats. And I think if you look at what we reported on we were just as aggressive reporting those stories as we were ones who were Republicans. How I see our-- how I see our mission is we always want to be transparent with readers about what we think, about our opinions. But, fundamentally, we are out there to collect and report facts. And that's always our guiding mission.

BILL MOYERS: If Gonzales leaves, as so many people are saying he must, including Republicans--


BILL MOYERS: --will the story be over?

JOSH MARSHALL: I don't think it will, because this story is about the White House, the political brain center of this administration, using the Department of Justice to pursue its political ends. What Alberto Gonzales had done wrong is he had allowed that to happen. He had allowed the president, he had allowed Karl Rove to misuse, to really corrupt the Department of Justice. So he was a cog in the machine. But the real story here is really right to the top. It's in the White House. It's the Bush administration using the Department of Justice to advance the interests of the Republican Party.

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