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August 16, 2007

Is AG Gonzales good for criminal defendants?

Jonathan Turley has this provocative op-ed in USA Today, entitled "Gonzales is tough on crime?  Hardly. His strong-arm tactics actually have worked to defendants' advantage."  Here is how it starts and ends:

Attorney General Alberto Gonzales has continued his campaign to survive at any cost in the face of allegations ranging from false statements to violations of federal surveillance law. Despite persistent calls for Gonzales' removal or impeachment, his allies dismiss the possibility he committed crimes while emphasizing that he is tough on crime. It is a defense that leaves many lawyers chuckling. The fact is that Gonzales is the best thing to come along for criminal defendants since Ernesto Miranda.

Gonzales' appetite for unchecked power has served to undermine prosecutions and alienate courts....

Federal judges now openly question the veracity of government filings; many Republican appointees are ruling in favor of criminal defendants and civil liberties. Even Justice Department attorneys have complained that they are "ashamed" of the politicization and unprofessionalism of the department under Gonzales.

Prosecutors were selected for their political purity rather than their legal abilities. Gonzales ordered the replacement of some of the most effective and respected prosecutors in the country with lawyers such as Tim Griffin, whose only known qualification was service as an aide to Karl Rove.

So what's not to like about Alberto Gonzales?  He has undermined easy cases, replaced talented prosecutors with political stooges, alienated even conservative judges, and forced both Republicans and Democrats to call for greater protection of civil liberties.  At this rate, the American Civil Liberties Union may well name a wing after him.  Who knows, Jefferson, Padilla and others may well be able to attend the ribbon-cutting.

August 16, 2007 at 08:45 AM | Permalink


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Does anyone think that in the Clinton Justice Department Republican prosecutors got anywhere?

Posted by: federalist | Aug 16, 2007 10:43:02 AM

Turley's argument is that Gonzales's practice differs in degree, not in kind.

Posted by: | Aug 16, 2007 11:03:42 AM

93 people fired and statements that if you weren't with us, you were getting nowhere . . . .

yeah, there is a degree, under Clinton it was worse . . . . after all, how were they going to get people like Billy Dale prosecuted?

Posted by: federalist | Aug 16, 2007 11:17:18 AM

Federalist, when are you going to focus on the present? It seemed you spend more time criticizing the previous administration while ignoring today realities. Get a clue.

Posted by: | Aug 16, 2007 1:29:52 PM


I served in the Department of Justice, either in the Criminal Division at Main Justice or as an Assistant U.S. Attorney in, at various times, E.D. Pa and S.D. Fla., under Presidents Carter, Reagan, Bush I, and Clinton. What has happened under the current administration is wholly different in both kind and degree from anything that went before.

As for US Attorneys, in the modern era, the job of U.S. Attorney in each judicial district has always been understood to be a patronage position, and is thus virtually always filled by a person of the president's own party. When the party changes, the U.S. Attorney virtually always changes as well -- a fact known, understood, and cheerfully accepted by all career DOJ people. I, for one, think politically appointed USAs are, on balance, a good thing. In the first place, a new administration should be able to implement its policy initiatives, if legitimate, and should have the right to put its own people in place to direct those initiatives. In the second place, an underappreciated consequence of having as US Atty a political appointee with ties to a senator or other senior legislator in the president's party is that it sometimes makes central control more difficult in cases where strong local interests are at odds with national administration desires -- and that's not altogether a bad thing. Historically, it produces a creative tension that often leads to better national decision-making.

What is markedly different about this Administration's work with USAs is not that it has appointed Republicans to these offices, but that it has repeatedly pressured those officeholders to employ their power for expressly partisan political ends. THAT, in my 28 years of experience in and around DOJ, is unprecedented, illegitimate, and a knife to the heart of the hard-won reputation for impartiality and integrity upon which the effectiveness of DOJ largely depends.

Moreover, the partisanship problem is not limited to appointment of or relationships with US Attorneys. The evidence is now quite clear that the Bush Administration has politicized both the appointment process for and day-to-day management of career DOJ employees. To mention only the most well-known instance, Monica Goodling admitted applying political tests to career appointments, a practice that is flatly illegal, not to speak of deeply corrosive of the reputation and fibre of the Department. Reports from across the Department, some made public, and some from colleagues in or recently departed from the Department, have convinced me that the White House and Alberto Gonzales are united in viewing the department as merely an extension of the president's will, with no responsibility for independent judgment or special obligation of fidelity to the law and the constitution. That vision has warped one of the most important institutions of the federal government, to the great and lasting disadvantage of all of us, regardless of party.

Frank Bowman

Posted by: | Aug 16, 2007 2:31:33 PM

Mr Bowman, thank you for enlightening us. People like the Federalist, would have us believe otherwise.

Posted by: | Aug 16, 2007 3:08:21 PM

Yeah, Mr. Bowman, the President doesn't have the right to think that voter fraud is a big deal. Moreoever, I notice that you did not defend the Billy Dale prosecution.

Posted by: federalist | Aug 16, 2007 7:32:51 PM


The President certainly has the "right to think that voter fraud is a big deal." But neither he nor the Attorney General "has a right" to insist that U.S. Attorneys bring voter fraud cases where there are no meritorious cases to bring. Nor do they "have a right" to insist that the filing of voter fraud or other kinds of cases be timed to affect congressional elections. Nor do they "have a right" to fire U.S. Attorneys who refuse to abuse their offices by doing the foregoing things.

Listen, if you will, to what those who have been federal prosecutors for many years, both Republicans and Democrats, are saying. The damage this Administration has done to the Justice Department is a disaster for all of us, regardless of party.

The Department's well-earned reputation for impartiality and intellectual integrity is perhaps its greatest asset in prosecuting difficult or politically sensitive cases. Damage to that reputation impairs the effectiveness of federal law enforcement. And damage to that reputation cannot be easily repaired. Moreover, once the precedent of politicizing the Department is established, it creates a huge temptation for the next administration to engage in the same sorts of reprehensible behavior in the name of restoring political/ideological balance.

The damage this Administration has done to DOJ is real. Its effects transcend party. We should all deplore it. We should insist on accountability from those who have distorted the Department and sought to abuse its powers. We should be vigilant to ensure that nothing similar happens again.

Frank Bowman

Posted by: | Aug 17, 2007 9:34:29 AM

And the damage done to democracy in Washington State, I guess no big deal. IOKIYAAD. And since when does an election give cover to a wrongdoer. The bottom line is that voter fraud is a problem in this country, and if prosecutors are loath to prosecute it, then I think that the President has every right to vigorously enforce the law and insist that vigorous investigations be done. And speaking of political timing, I notice that you don't seem to have a problem with Lawrence Walsh's timing of his charges, now do you?

And, once again, I note that you do not defend the prosecution of Billy Dale--during the good old days.

Posted by: federalist | Aug 17, 2007 10:39:19 AM

Federalist, Did you ever read what Prof. Bowman wrote?

Sure, voter fraud is “bad” (not nearly as bad as check fraud or cruelty to animals, but still, pretty bad.) However, choosing to prosecute for someone for something based on political criteria or to obtain political goals is what the complaint is about.

Although I agree with the trust of Prof. Bowman’s comments, I have one slight disagreement, or maybe it is a clarification. While it is easy to cast “Goodlinggate” in terms of a Bush administration assault on Democrats the DOJ’s independence, I think the patronage issue is a little more complicated. The US Attorney is a patronage position (and that is good for the reasons Prof. Bowman specifies), it is a patronage position generally doled out to the political leadership of that state. So, for example, the Arkansas Republican leadership would have to agree on the least offensive person to pick for the job. (I don’t pretend that selection of people for any position is based on intelligence or merit.) They would choose this person based on who they think would be tolerable to the Democrats, showed some party loyalty to the past (usually in the form of supporting candidates), and some degree of managerial effectiveness. After all, if the GOP (or the DNC) is to advance in that state it can’t be associated with asking the president to nominate a real dud. So, selection of US Attorneys was the “turf” of the statewide political leadership. Not the administration. The appointment of interim US Attorneys changed this. Essentially it divested statewide leadership of this decision, and this is what made people go nuts. Sure, it has been cast in terms of independence, and other crap, but I think that a lot of the complaints are really bitterness over not getting a state say in the US Attorney, but nevertheless being blamed for bad appointees.

Posted by: S.cotus | Aug 17, 2007 11:00:44 AM


I will respond one more time, not from any hope of breaching the impenetrable carapace of your party loyalty, but rather for what benefit others may find in these remarks.

First, contrary to your fervid assertion to the contrary, there is little if any evidence that "voter fraud" is a significant problem in this country. Indeed, the best evidence against the existence of such a problem is the fact that, despite nearly seven years of Republican control of the Department of Justice and relentless pressure from the White House and Republican activists, mere handfuls of prosecutions have been pursued and, of those brought, virtually none have been of any consequence. The reason the issue has emerged as a component of the wider problem of DOJ politicization is precisely that dutifully Republican United States Attorneys have been unable to find meritorious cases, but have in effect been told to bring cases anyway or face adverse job consequences.

Second, I have no idea who "Billy Dale" is. I assume from the tone and context of your question that he is someone who, in your view, was subject to politically motivated prosecution under a prior Democratic administration. If that was the case, it would be deplorable. But the fact that you have repeatedly raised this case suggests that you believe instances of politically motivated bad behavior by a prior administration of one party justify pervasive politically motivated bad behavior by the succeeding administration of the other party. Accordingly, I have to thank you for proving, in the most disheartening way, the very point I made in my last post -- namely, that abuse of the Department of Justice for partisan purposes by one party inevitably tempts thoughtless partisans of the other party to respond in kind when they take over.

Frank Bowman

Posted by: Frank Bowman | Aug 17, 2007 12:07:03 PM

East St. Louis, Washington State, Mississippi, Miami, Milwaukee, just to name a few . . . .

And if you don't remember Travelgate, and you were so sensitive to the politicization of Justice, then I would suggest that it is you that has the blinders on, not I.

Posted by: federalist | Aug 17, 2007 12:47:28 PM

Quick, Federalist, come up with a way to insult Prof. Bowman! Tally-ho!

Give him a nicname. A lot of people are counting on you.

Posted by: S.cotus | Aug 17, 2007 1:33:04 PM

Quick, Federalist, come up with a way to insult Prof. Bowman! Tally-ho!

Give him a nicname. A lot of people are counting on you.

Posted by: S.cotus | Aug 17, 2007 1:33:17 PM

Federalist, will you get your head out of yesterday and focus on today, for crying loud. Is today too scary for you? "Yesterday is history and tomorrow is a mystery, keep the focus on today." It seem that people like you are always complaining about yesterday, worrying about tomorrow and never giving today a chance. Get a clue....

Posted by: | Aug 17, 2007 2:09:18 PM

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