It's a Crime

An op-ed piece by Adam Cohen in the NYTimes, It Wasn't Just a Bad Idea. It May Have Been Against the Law, provides the answer to a question that was discussed by the LWL* last week. Our conversation centered on the possible illegalities in the US Attorney firings. There is no doubt that the dismissals were "wrong" and the court of public opinion has already judged the Bush Administration harshly in that regard. As a society, we just don't like the idea that someone could be terminated from their job for no reason, especially if they were otherwise doing a good job. Employment "at will" (or service at the pleasure of the President, the governmental equivalent) may be the law, but it's just not right or fair.

But, beyond that -- the question ultimately is: was there anything improper or illegal? As lawyers, we tend to focus on the legal repercussions of conduct, rather than the ethical or moral aspects. That is -- it may not be nice, but is it illegal? This determination, of course, is the necessary component in deciding if someone "has a case." When a potential client approaches a lawyer, that is the only relevant issue. In order to pursue a case (or defend a case that has been brought against a defendant) there has to be a wrongful action or injury.

Cohen addresses these issues:

The Bush administration has done a terrible job of explaining its decision to fire eight United States attorneys. Story after story has proved to be untrue: that the prosecutors who were fired were poor performers; that the White House was not involved in the purge. But the administration has been strangely successful in pushing its message that the scandal is at worst a political misdeed, not a criminal matter.

It is true, as the White House keeps saying, that United States attorneys serve ''at the pleasure of the president,'' which means he can dismiss them whenever he wants. But if the attorneys were fired to interfere with a valid prosecution, or to punish them for not misusing their offices, that may well have been illegal.

He then considers the range of possible violations of the law:

1. Misrepresentations to Congress. The relevant provision . . . is very broad. It is illegal to lie to Congress, and also to ''impede'' it in getting information. Deputy Attorney General Paul McNulty indicated to Congress that the White House's involvement in firing the United States attorneys was minimal, something that Justice Department e-mail messages suggest to be untrue.

Attorney General Alberto Gonzales made his own dubious assertion to Congress: ''I would never, ever make a change in a United States attorney position for political reasons.''

* * *

2. Calling the Prosecutors. As part of the Sarbanes-Oxley reforms, Congress passed an extremely broad obstruction of justice provision . . . which applies to anyone who corruptly ''obstructs, influences, or impedes any official proceeding, or attempts to do so,'' including U.S. attorney investigations.

David Iglesias, the New Mexico United States attorney, says Senator Pete Domenici, Republican of New Mexico, called him and asked whether he intended to bring indictments in a corruption case against Democrats before last November's election. Mr. Iglesias said he ''felt pressured'' by the call. If members of Congress try to get a United States attorney to indict people he wasn't certain he wanted to indict, or try to affect the timing of an indictment, they may be violating the law.

3. Witness Tampering. [It is] illegal to intimidate Congressional witnesses. Michael Elston, Mr. McNulty's chief of staff, contacted one of the fired attorneys, H. E. Cummins, and suggested, according to Mr. Cummins, that if he kept speaking out, there would be retaliation. Mr. Cummins took the call as a threat, and sent an e-mail message to other fired prosecutors warning them of it. Several of them told Congress that if Mr. Elston had placed a similar call to one of their witnesses in a criminal case, they would have opened an investigation of it.

4. Firing the Attorneys. United States attorneys can be fired whenever a president wants, but not . . . to corruptly obstruct, influence, or impede an official proceeding.

Let's take the case of Carol Lam, United States attorney in San Diego. The day the news broke that Ms. Lam, who had already put one Republican congressman in jail, was investigating a second one, Mr. Sampson wrote an e-mail message referring to the ''real problem we have right now with Carol Lam.'' He said it made him think that it was time to start looking for a replacement. Congress has also started investigating the removal of Fred Black, the United States attorney in Guam, who was replaced when he began investigating the Republican lobbyist Jack Abramoff. Anyone involved in firing a United States attorney to obstruct or influence an official proceeding could have broken the law.

As usual, the Administration has managed to spin this in a way that the real issues have become obscured.

P.S. We spotted all but #3.

(LWL -- Ladies Who Lunch, a/k/a my officemates)

Tags: Commentary, Law, Politics, Attorneygate