Last Friday I posted a diary suggesting that the recent firing of U.S. Attorneys was not just inappropriate but also illegal. Today, Adam Cohen, of the New York Times, makes the same (but better written) argument in "It Wasn’t Just a Bad Idea. It May Have Been Against the Law"
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.
[B]ased on what is known — and with some help from Congressional staff
members and Stephen Gillers, a law professor at New York University — it was not hard to spot that White House and Justice Department officials, and members of Congress, may have violated 18 U.S.C. §§ 1501-1520, the federal obstruction of justice statute.
Some crimes that a special prosecutor might one day look at:
- Misrepresentations to Congress. The relevant provision, 18 U.S.C. § 1505, 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."
Attorney General Alberto Gonzales and others testified before Congress under oath that U.S. attorneys were dismissed for "performance" reasons, not because they refused to prosecute Democrats and go easy on Republicans.
- Calling the Prosecutors. As part of the Sarbanes-Oxley reforms, Congress passed an extremely broad obstruction of justice provision, 18 U.S.C. § 1512 (c), 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.
...
- Witness Tampering. 18 U.S.C. § 1512 (b) makes it 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.
...
- Firing the Attorneys. United States attorneys can be fired whenever a president wants, but not, as § 1512 (c) puts it, 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.