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The U.S. Attorney ‘Scandal’ Threatens Core Values

We often disagree with Sen. Patrick Leahy of Vermont, a former prosecutor and now the Democrat who chairs the Senate Judiciary Committee.  But one thing is for certain:  there isn’t a dumb bone in his body.

That’s why it’s so infuriating to witness the theater he has allowed (indeed, induced) his committee to become over what is now an MSM-dubbed “scandal” .. forged by the explosive combination of top-tier Justice Department incompetence and shrewd opportunism in the Democrat-controlled Congress .. over the Bush Administration’s firing of eight United States attorneys.

On Thursday, following the previous day’s lead from the House Judiciary Committee, Leahy’s panel conducted a proceeding to authorize the issuance of testimonial subpoenas for some of President Bush’s closest aides, including his chief political adviser, Karl Rove, and his former White House counsel, Harriet Miers.  As elucidated by reams of email already disclosed by the Executive Branch, Rove and Miers were involved in some of the discussions that led, eventually, to the dismissal of the prosecutors.

The hype is pure Washington farce.  Plainly, it is also more strategic than appeared at first blush.  Not only are administration critics deftly exploiting the ham-handedness of Atty. Gen. Alberto Gonzales and his staff, who initially could not get their story straight about why the U.S. attorneys were sacked — notwithstanding that the sacking did not require a compelling story in the first place, since the removal of such presidential appointees is a wholly discretionary political call.  Democrats are further reaping a more significant political benefit:  Every minute Americans spend on this trumped up controversy is one less minute of attention available for the ongoing chicanery in the House.  There, Speaker Nancy Pelosi is practicing pork-barrel, bare-knuckles politics to the hilt, ramming through a defense appropriations bill that will starve our military in wartime while lining the pockets of core liberal constituencies with taxpayer dollars.

As Thursday’s hearing ensued, Sen. Jon Kyl (R.-Ariz.) cut to the chase:  Gratuitously provoking a constitutional crisis by issuing subpoenas to the advisers of a coordinate branch of government is a gross violation of separation-of-powers.  It invites ruinous retaliation.  

What, Kyl asked, would the senators think if the executive branch issued subpoenas to congressional staffers to probe a senator’s motivation for taking this or that action?  Or how about subpoenas served on the law clerks of a Supreme Court justice to inquire into why a case was decided a particular way.  Were such actions to be taken, senators would revolt — and rightfully so.  It would mark a blatant transgression of inter-branch comity.  It would subvert the principle that, within the sphere of its constitutional duties, each branch is supreme.

Not so, countered Leahy.  He pointed to the cases of Representatives Randy “Duke” Cunningham and Robert Ney, both recently convicted of felony corruption.  “Their staffs were subpoenaed.  Their material[s] were subpoenaed.  The people did have to testify.  And they’re in prison as a result.”  So, Leahy elaborated, “Certainly, the executive branch has been able to go into the exact same things [Kyl was] talking about.  Why they made decisions like they did, who bribed them, who paid them off.  And they’re now serving time in prison for that.  So it’s not unusual.”

C’mon, senator, you know better than that.

The Cunningham and Ney cases were about crime — as Leahy himself said, “who bribed them, who paid them off.”  So, too, is the curiously unresolved investigation of Rep. William Jefferson, the Louisiana Democrat Leahy somehow neglected to mention but whose home and House office were searched by federal agents — and whom two people have already pled guilty to bribing (although Pelosi nevertheless deemed him fit for service on the Homeland Security Committee).

Crime, as any experienced Vermont prosecutor is well aware, changes everything.  Most obviously, it is the executive branch, not the Congress, which exercises the constitutional police power.  Legislators may not think it’s fair that the Justice Department can pursue corrupt members of Congress while congress can only request, not conduct, prosecutive action against corrupt executive branch officials.  But that’s our system of divided powers — presidents don’t get to raise revenue either; they need Congress to fund the Justice Department … and everything else.

More fundamentally, in the matter of removing U.S. attorneys, Congress is not investigating crime.  It is inquiring into politics.  It wishes to probe what considerations caused President Bush to exercise his unfettered power to dismiss executive branch officials, like U.S. attorneys, who exercise power that is not their own but the president’s.  That is, it wants to use its investigative authority — which it has for purposes of considering legislation, not usurping the role of the grand jury — to scrutinize institutional judgment.  

Institutional judgment, of course, is precisely the realm in which Leahy and other legislators expect, and must have, insulation from interference by the other branches.  Consultations in this realm between members of congress and their closest advisers are sacrosanct.  Ditto judges and their clerks.  And it must be no different for a president and his staff.

The gossamer girth of Leahy’s contention is best seen in a concept with which, as a fine lawyer, he is well familiar:  the attorney-client privilege.  In the sphere of communications aimed at the exchange of legal advice, the privilege is inviolate.  But, there’s a caveat:  the crime-fraud exception.  If the communication’s purpose is to plan or commit a crime, the privilege is extinguished and the lawyer can be compelled to testify against the client.

Interfering with an ongoing investigation or court case would be a very serious matter.  If done corruptly, it would be obstruction of justice, a crime.  If there were strong evidence that U.S. attorneys had been fired in order to kill sensitive investigations in their offices, this would be a very different matter.  If Congress had credible indications that such a thing went on, its investigations might be justified — although it would then be more appropriate for legislators to call for a criminal investigation, not try to conduct one themselves.  Such congressional investigations have a history of compromising the prospects for bringing wrongdoers to justice.

But there is no such evidence.  A fishing expedition into the mere possibility — absent convincing evidence — of a crime is no better when launched by Congress than it would be if used as a pretext by the executive branch to investigate congressmen.  What would Leahy say if the Justice Department started issuing random grand jury subpoenas to senatorial staff on nothing more than a hunch that influence-peddling might be afoot?

The Justice Department has rightly been criticized here.  It is understandable that Congress is angry over the conflicting explanations for the firings.  But it has more than made its point on that score, damaging the administration politically and the Attorney General perhaps irreparably.  Scoring more political points is not worth the exorbitant cost of undermining the confidentiality of principal/agent relationships.  Once Congress crosses that Rubicon, it would be foolish to think that fall-out will be limited to the executive branch … or, indeed, to Republicans.

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Mr. McCarthy, a former federal prosecutor, directs the Center for Law & Counterterrorism at the Foundation for the Defense of Democracies.

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