Dorf on Law

Mostly law-related musings by Cornell Professor Michael Dorf and some of his lawyer/professor friends

Monday, April 09, 2007

Newt Piles On But Does He Get It?


Newt Gingrich is the latest prominent Republican to assail AG Gonzales for his handling of the Gonzales Eight Massacre. In his appearance on Fox News, former Speaker Gingrich said “This is the most mishandled, artificial, self-created mess that I can remember in the years, in the years I’ve been active in public life.” (That's according to the NY Times report. I don't actually watch Fox News --- unless I happen to be in a hotel room that has just been vacated by VP Cheney. Explanation here.)

It's hard to tell exactly which aspects of the "mess" Gingrich was upset about, but the use of the words "mishandled" and "artificial" suggest that he, like a number of others who have abandoned the sinking Gonzales ship, either doesn't really get it or is deliberately obfuscating. Of course it was wrong for Gonzales to claim that the US Attorney dismissals were performance-related and to dissemble about his involvement in the affair. But this is one instance in which the Nixonian conventional wisdom --- it's not the crime; it's the cover-up --- is wrong.

The underlying plot to pressure U.S. Attorneys to bring disproportionately many prosecutions of Democrats and disproportionately few prosecutions of Republicans --- if that is in fact what was afoot --- was a grotesque abuse of power. Yes, the AG has a credibility problem, and yes, he and the Administration, with its preposterous offer of a no-recording/no-pencils session with Rove, have "handled" the issue badly in the sense that they've impeded efforts to uncover what actually happened. But if what actually happened were retaliatory firings of prosecutors who refused to weigh potential defendants' party affiliations in deciding whether to bring criminal charges, then this is much more than a cover-up.

5 Comments:

  • At 10:50 AM, Blogger egarber said…

    There was a little bit of that during Meet the Press yesterday. Chuck Todd from NBC News (not a pundit) pretty much painted it as a "competence" issue -- i.e., how could they not find a way to get away with this?

    From the transcript:

    MR. RUSSERT: Bottom line, Chuck Todd?

    MR. TODD: It’s his incompetency. This is what—it, it—it’s sort of a running theme now for the entire Bush second term, competency. Competency. They couldn’t—they couldn’t figure out how to politically fire some U.S. attorneys? I mean, this is political competency. Forget whether it was illegal or unethical. That’s what I think is frustrating Republicans the most about this entire scandal.

    MR. RUSSERT: Right, or to have a chief of staff saying, “I’m sorry, the boss didn’t tell it to you straight.”

    MR. TODD: Right, I mean, it’s just a basic—it’s just basic competency.

    MR. RUSSERT: And...

    MR. TODD: And, and it’s just...

    MR. RUSSERT: But in some of the districts there were really sensitive cases going on.

    MR. TODD: Look, it’s—that’s, that’s what made it politically incompetent. If that—that’s what they were going to do, then fire all of them. Then go ahead and just replace all 93. These are politically plum jobs. It would have been accepted, and everybody would say, well, that’s, that’s what presidents can do.

     
  • At 2:41 PM, Blogger PG said…

    But to what extent have we seen actual evidence that the Administration was pushing for specifically Democratic prosecutions, and to what extent might any disparities be attributed to the different locales where Democrats hold power (i.e. big cities more than small towns) and the type of prosecutions for which the Administration pushed (of voting irregularities of the type more commonly associated with Democrats rather than GOP-style intimidation, etc.)? I think it will be dangerous for the Democrats to push this too far without a smoking gun that says, "This Administration openly, explicitly targets Democrats because they are Democrats."

     
  • At 4:42 PM, Blogger egarber said…

    But to what extent have we seen actual evidence that the Administration was pushing for specifically Democratic prosecutions

    I think for now you at least have the highly unusual / unethical contacts with Iglesias and the pretty evident reality that "performance" (at least in a clear objective sense) wasn't really the issue.

    So at this stage, there's enough evidence to investigate. But as Democrats have said, it might turn out that it DIDN'T happen to the extent suggested by some. That's the point though -- we know enough to investigate / hold hearings.

     
  • At 8:59 PM, Blogger PG said…

    egarber,

    We know that the Bush Administration prioritized investigating certain types of corruption, particularly in voting. That can be pretty easily explained through disparate impact -- again, Democrats are more likely to engage in certain kinds of cheating, Republicans engage in other kinds. We're not going to get much traction with the public if we accuse the Bush Administration of targeting Democratic kinds of crime. We need the smoking gun in which the prosecutors were pressured to prosecute Democrats qua Democrats, and go easy on Republicans qua Republicans. Iglesias definitely is one of the most interesting, b/c he was actually a Bush II nominee, not a Clinton leftover, and he had been praised by the DOJ for his work in election integrity. The Administration has to explain why someone who was getting accolades for such work wasn't meeting Bush's objectives in prosecuting voter fraud.

     
  • At 9:51 PM, Blogger egarber said…

    PG,

    My take on this is that whichever party is in power, Congress has a responsibility to investigate when there is reasonable suspicion that lines may have been crossed. I'm not advocating witch-hunts based on thin air of course; but we need the deterrent of public hearings in cases like this, lest we risk losing something we take for granted: partisan neutrality in the Justice Department's daily functions.

     

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