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The Republican subversion of law

Sidney Blumenthal
20 March 2007

The Bush administration's first instinct was to shield Karl Rove from scrutiny when Congress began inquiring about the unusual firings of eight United States attorneys. Among the replacements, the proposed new US attorney for Arkansas happened to be one of Rove's most devoted underlings, his head of opposition research, Tim Griffin, who boasted during the 2000 presidential election about the effectiveness of the negative campaign against Al Gore: "We make the bullets!" Griffin also posted a sign in his department at Bush headquarters: "Rain hell on Al!"

A letter written by the department of justice in late February 2007 informed Congress: "The department is not aware of Karl Rove playing any role in the decision to appoint Mr. Griffin." Despite this categorical disavowal, a sheaf of internal justice-department emails released to Congress under subpoena revealed Kyle Sampson, attorney-general Alberto Gonzales's chief-of-staff, writing in mid-December 2006: "I know getting him appointed was important to Harriet, Karl, etc." Harriet, of course, was Harriet Miers, then the White House legal counsel.

Just after Bush's re-election and before his second inaugural, as his administration's hubris was running at high tide, Rove dropped by the White House legal counsel's office to check on the plan for the purge. An internal email, dated 6 January 2005, and circulated within that office, quoted Rove as asking "how we planned to proceed regarding the US Attorneys, whether we are going to allow all to stay, request resignations from all and accept only some of them, or selectively replace them, etc." Three days later, Sampson, in an email, "Re: Question from Karl Rove," wrote: "As an operational matter we would like to replace 15-20 percent of the current U.S. Attorneys -- the underperforming ones. . . . The vast majority of U.S. Attorneys, 80-85 percent I would guess, are doing a great job, are loyal Bushies, etc., etc."

The justice department's statement on Karl Rove was simply one part of its cover-up. The department's three top officials - attorney-general Alberto Gonzales deputy attorney-general Paul J McNulty and principal associate deputy attorney-general William E Moschella - all testified before Congress under oath that the dismissed US attorneys had been removed for "performance" reasons, not because they had been insufficiently partisan in their prosecution of Democrats or because they would be replaced by those who would be. Yet another Sampson email, sent to Miers in March 2005, had ranked all ninety-three US attorneys on the basis of being "good performers", those who "exhibited loyalty" to the administration, or "low performers", those who "chafed against Administration initiatives, etc."

The day before the emails were made public Sampson resigned, offering a classic fall-guy statement, claiming that he was the one who failed to inform Gonzales and other officials about the firings. Sampson, who was Gonzales's closest aide, accompanying him from the White House counsel's office to the justice department when Gonzales was appointed attorney-general, had sought to become a US attorney himself through the purge. And Sampson was considered to be politically adept enough to be considered a stand-in for the supposedly indispensable Rove. When it was rumoured that Rove might be indicted in the Valerie Plame case, the Washington Post reported that Sampson was likely to replace him.

Sampson's abrupt departure was followed by Gonzales's bizarre press conference on 14 March. Speaking in a passive voice that "mistakes were made", he pleaded ignorance of "all decisions" at his department, explained that it has 110,000 employees, appealed to his modest origins, and promised to oversee the investigation of his own misfeasance. His defence was the very grounds used to fire the US attorneys: poor performance. He used his failure as a shield.

But the day before, Gonzales's ignorance defence had already been punctured. A White House spokeswoman, Dana Perino, acknowledged that the US attorneys' dismissals were preceded by a conversation between President Bush and Gonzales in October 2006 in which Bush complained that some prosecutors were not pursuing voter fraud investigations. These were, in fact, cases that Rove thought were especially important to Republicans.

Rove was the conduit for Republican political grievances about the US attorneys. He was the fulcrum and the lever. He was the collector of information and the magnet of power. He was the originator, formulator and director. But, initially, according to the administration, like Gonzales, he supposedly knew nothing and did nothing.

Even after the administration alibis had collapsed, the White House trotted out Dan Bartlett, the cool and calm communications director, to engage in a bit of cognitive dissonance. There was no plot, and maybe Rove was involved in the thing that didn't happen. "You're trying to connect a lot of dots that aren't connectible", Bartlett said, adding, "It wouldn't be surprising that Karl or other people were receiving these complaints." Thus the "dots" are invisible and Rove is at their centre.

To the extent that the facts are known, Rove keeps surfacing in the middle of the scandal. And it is implausible that Sampson, the latest designated fall-guy, was responsible for an elaborate bureaucratic coup d'état. Nor is it credible that Gonzales - or Harriet Miers, who has yet to be heard - saw or heard no evil. Neither is it reasonable that Gonzales or Miers, both once Bush's personal attorneys in Texas, getting him out of scrapes such as his drunken-driving arrest, could be the political geniuses behind the firings. Gonzales' and Miers' service is notable for their obedience, lack of originality and eagerness to act as tools. The scheme bears the marks of Rove's obsessions, methods and sources. His history contains a wealth of precedents in which he manipulated law enforcement for political purposes. And his long-term strategy for permanent Republican control of government depended on remaking the federal government to create his ultimate goal - a one-party state.

"We're a go for the US Atty plan", White House deputy counsel William Kelley notified the justice department on 4 December 2006, three days before seven of the eight US attorneys were dismissed. "WH leg[islative affairs], political, and communications have signed off..."

The Karl Rove way

From the earliest Republican campaigns that Rove ran in Texas, beginning in 1986, the FBI was involved in investigating every one of his candidates' Democratic opponents. Rove happened to have a close and mysterious relationship with the chief of the FBI office in Austin. Investigations were announced as elections grew close, but there were rarely indictments, just tainted Democrats and victorious Republicans. On one occasion, Rove himself proclaimed that the FBI had a prominent Democrat under investigation - an investigation that led to Rove's client's win. In 1990, the Texas Democratic Party chairman issued a statement: "The recurring (leaking) of purported FBI investigations of Democratic candidates during election campaigns is highly questionable and repugnant."

A year later, Rove received a reward. Governor Bill Clements, a Rove client, appointed him to the East Texas State University board of regents. Appearing before the state senate's nominations committee, a Democratic senator asked Rove about how long he had known the local FBI chief. "Ah, Senator", replied Rove, "it depends. Would you define 'know' for me?"

Rising to the White House as Bush's chief political strategist, Rove well understood the power of US attorneys to damage Democrats and protect Republicans, and he paid close attention to their selection. When US senators, who recommend the US attorneys for their districts, wanted a more independent-minded professional, Rove leaned on them. In 2001, he instructed Senator Peter Fitzgerald (a Republican from Illinois) to sponsor a safe choice from within Republican state circles. Rove "just said we don't want you going outside the state. We don't want to be moving US attorneys around", Fitzgerald told the Chicago Tribune on 12 March. But Senator Fitzgerald would not relent; his nominee, Patrick Fitzgerald (no relation), an assistant US attorney from New York, became the US attorney in Illinois, where he successfully prosecuted Republicans, including the incumbent governor, George Ryan, for corruption, and went on to be appointed special prosecutor in the Plame case. "That Fitzgerald appointment got great headlines for you, but it ticked off the base", Rove told Senator Fitzgerald.

In 2002, the first mid-term elections of the Bush presidency, Republicans systematically raised charges of voter fraud involving Native Americans in the hotly contended US Senate race in South Dakota. Though the accusations were never proved and the GOP failed to depose the Democratic senator, Tim Johnson, the campaign served as a template.

By the election of 2004, Rove became a repository of charges of voter fraud across the country, from Philadelphia to Milwaukee to New Mexico, all in swing states. In the campaign, unproven voter fraud charges, always aimed at minority voters, became a leitmotif of Republican efforts.

In Washington state, when the Democrat won the governorship by 129 votes, the state Republican Party chairman, Chris Vance, demanded that US attorney John McKay tell him the status of his investigation. At that time, Vance was in constant contact with Rove. "I thought it was part of my job, to be a conduit", Vance told the Seattle Times. "We had a Republican secretary of state, a Republican prosecutor in King County and a Republican US attorney, and no one was doing anything." McKay refused to have any conversation about an investigation. And he found no basis for charging anyone with voter fraud. In a 13 September 2006 email, Kyle Sampson identified McKay as one of those "we should now consider pushing out" - and he was among the eight attorneys fired.

In 2006, Rove addressed the Republican Lawyers Association on the "growing problem", as he put it, of voter fraud. Every instance he cited was in a swing state. New Mexico was one of them.

Rove had heard complaints from the New Mexico Republican Party chairman, Allen Weh, about David Iglesias, the state's US attorney, for his supposed refusal to indict Democrats for voter fraud. Iglesias appeared to be a dream figure for local Republicans - the model for the movie A Few Good Men, Hispanic and evangelical. "Is anything ever going to happen to that guy?" Weh asked Rove at a White House Christmas party. "He's gone", Rove replied. Indeed, Iglesias's firing was already a done deal.

In California, it was time for payback against US attorney Carol Lam who had prosecuted representative Randy "Duke" Cunningham in the most flagrant corruption case involving a member of Congress. Her probe was expanding to encompass the dealings of representative Jerry Lewis, another California Republican. On 11 May 2006, Sampson emailed the White House counsel's office regarding "the real problem we have right now with Carol Lam." Soon, she was axed, one of the eight.

A well-laid scheme

Those fired were not completely "loyal", as Sampson's emails emphasised. But to what policies should a prosecutor be "loyal"? Two academics, Donald C Shields of the University of Missouri and John F Cragan of Illinois State University, studied the pattern of US attorneys' prosecutions under the Bush administration. Their conclusions in their study "The Political Profiling of Elected Democratic Officials", are that "across the nation from 2001 through 2006 the Bush Justice Department investigated Democratic office holders and candidates at a rate more than four times greater (nearly 80 percent to 18 percent) than they investigated Republican office holders and seekers." They also report, "Data indicate that the offices of the US Attorneys across the nation investigate seven times as many Democratic officials as they investigate Republican officials, a number that exceeds even the racial profiling of African Americans in traffic stops." Thus what the eighty-five US attorneys who were not dismissed are doing is starkly detailed.

If the Democrats hadn't won the mid-term elections in November 2006 there is no reason to believe that the plan to use the US attorneys for political prosecutions - as they have been used systematically under Bush - wouldn't have gone forward completely unimpeded. Without the new Congress issuing subpoenas, there would be no exposure, no hearings, no press conferences - no questions at all.

The replacement of the eight fired US attorneys through a loophole in the Patriot Act that enables the administration to evade consultation with and confirmation by Congress is a convenient element in the well-laid scheme. But it was not ad hoc, erratic or aberrant. Rather, it was the logical outcome of a long effort to distort the constitutional framework for partisan consolidation of power into a de facto one-party state.

This effort began two generations ago with Richard Nixon's drive to forge an imperial presidency using extra-legal powers of government to aggrandize unaccountable power in the executive and destroy political opposition. Nixon was thwarted in the Watergate scandal. We will never know his full malevolent intentions, but we do know that in the aftermath of the 1972 election he wanted to remake the executive branch to create what the Bush administration now calls a "unitary executive". Nixon later explained his core doctrine: "When the president does it, that means it's not illegal." Karl Rove is the rightful heir to Nixonian politics. His first notice in politics occurred as a witness before the Senate Watergate committee. From Nixon to Bush, Rove is the single continuous character involved in the tactics and strategy of political subterfuge.

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