David Kurtz

David Kurtz is Managing Editor and Washington Bureau Chief of Talking Points Memo where he oversees the news operations of TPM and its sister sites.

Articles by David

We learned more details today about the dismissal of Seattle-based U.S. Attorney John McKay.

The AP has put together a timeline of events surrounding McKay's dismissal which provides additional insights into why McKay was left off a list of nominees last year for an open federal district judgeship in Washington State even before the Department of Justice asked for his resignation as U.S. Attorney:

A close friend in the White House counsel's office - McKay won't say who - told him the administration believed Republican members of the judicial selection commission opposed him for not diligently investigating claims of voter fraud during the 2004 governor's election, which Republican Dino Rossi lost by 129 votes after two recounts.

"That was what they understood as being the reason I was not selected," McKay said. "That was the first I had heard inside the White House that they were concerned about this." . . .

McKay called Harriet Miers, then the White House counsel, in August and asked for an interview with the intent of correcting the record and making his case for the judgeship. . . .

Miers agreed to interview him. McKay met with her and other White House lawyers on Aug. 22.

Their first question, McKay said, was "Why would the Republicans oppose you?"

On today's Meet the Press, McKay repeated that version of events, telling Tim Russert, "[T]hey actually asked me why Republicans in the state of Washington would be angry with me." As the Washington Post noted this evening, that characterization of McKay's meeting with the Miers seems to further implicate the White House in a political purge:

McKay's disclosure of an explicit White House question about the damage his decision caused to his standing among party loyalists added new detail to his previous statement that Miers accused him of having "mishandled" the voter fraud inquiry.

The use of the phrase "mishandled" left open the possibility that White House officials -- who last September were weighing whether to recommend McKay for a federal judgeship -- merely disputed McKay's professional judgment. McKay's statement yesterday instead lent new credence to suspicions that partisan political concerns weighed heavily in his subsequent firing.

It probably didn't help McKay that many Washington State conservatives mistakenly thought he had worked for the Clinton Administration:

Known as “Johnny” to friends and family, John McKay served as president of the Legal Services Corp. in Washington, D.C., before being named U.S. attorney. The Legal Services Corp. was created by Congress in 1974 as a private nonprofit corporation to provide legal services to the poor.

Though McKay headed Legal Services Corp. during the Clinton administration, he wasn’t appointed by the president and didn’t work for the administration. Even so, Vance and others said the perception among conservatives was that McKay had worked for the Clinton administration.

“I knew who he was,” Tom McCabe, executive vice president of the Building Industry Association of Washington, said of John McKay. “He worked in the Clinton administration.”

McCabe was one of those who publicly called for McKay’s firing after he declined to investigate the governor’s race. The Republican-controlled Congress in the 1990s sought to eliminate the Legal Services Corp., and McKay worked with Gorton and Dicks, among others, to save it.

Tony Williams, Gorton’s former chief of staff, recalled that when passions were running high following the 2004 governor’s race, McKay’s connection to Legal Services and mistaken connection to the Clinton administration raised some eyebrows in conservative circles.

“If people Googled him and saw he ran Legal Services … I can only imagine what my more conservative friends thought,” Williams said.

One can only imagine.

The politicization of the Justice Department has been especially acute in the Civil Rights Division, an issue we explored at some length yesterday. Today's L.A. Times has more on the complaints coming from veteran lawyers in that division:

"The political decision-making process that led to the dismissal of eight United States attorneys was standard practice in the Civil Rights Division years before these revelations," Joseph D. Rich, recently retired head of the division's voting rights section, said in a sparsely attended House Judiciary Subcommittee hearing last week.

"This connection should not be minimized," he said. . . .

Rich, a 37-year department veteran, said a partisan litmus test in hiring and decision-making has undermined a tradition of nonpartisan professionalism in the division.

"Unfortunately, since this administration took office, that professionalism and nonpartisan commitment to the historic mission of the division has been replaced by unprecedented political decision-making," he told the House Judiciary Committee's subcommittee on the Constitution, civil rights and civil liberties on Thursday.

Another Bush legacy: partial justice, which is no justice at all.

Let's go back to comments Karl Rove made on March 15 about the U.S. Attorney scandal:

When we came in in 2001, we reviewed all 93 U.S. Attorneys and over the course of time, replaced virtually all of them with appointees by the president… not all: several appointees were involved in high profile cases, important investigations, and as a result, even though they were appointees of the previous administration, we left them in office for, in some instances, years.

Let's assume that's true (and I seem to recall that Mary Jo White, in the Southern District of New York, may have been one of those handling several high-profile cases who stayed on for a time after Bush took office). It would certainly be good practice to take into account the status of investigations, especially important high-profile investigations, before potentially disrupting those investigations by replacing a U.S. Attorney.

If the Bush Administration took into account the status of ongoing investigations when removing U.S. Attorneys back in 2001, then surely it continued that practice this time around with the purge of the Gonzales 8, right? After all, Carol Lam's Duke Cunningham investigation, and its spin-off cases, is among the highest-profile congressional corruption investigations since ABSCAM. It is a sprawling probe that led into the CIA and into the congressional appropriations process which was so thoroughly corrupted under Republican rule.

But in the documents released by the Justice Department which I have reviewed, I have not seen any sort of reference to the impact of the dismissals on ongoing investigations. No mention of it being taken into consideration. No sign of internal discussions about ensuring that the continuity of the investigations were maintained. No reference to deliberations over the allocation of manpower and resources. In short, nothing to suggest that disrupting major high-profile investigations was an outcome to be avoided.

In fairness, DOJ would probably have grounds for not releasing to Congress any information pertaining to ongoing criminal investigations, so I would not necessarily expect to see any case-specific discussions in the documents released thus far. But you would expect to see some discussions generally of how to handle the effect of these dismissals on the operations of the department and its U.S. Attorney offices. (For TPM readers still making their way through the latest document dump, please be on the lookout for any such documents.) In contrast, the documents reveal extensive internal discussions of how to manage the political consequences of the dismissals.

Lots of attention has rightly been paid to another dog that did not bark: the lack of a department paper trail for the alleged "performance-related problems" that the officials claim were the basis for the dismissals. But in a scandal where the worst suspicion is that the dismissals were intended to impede ongoing public corruption investigations of Republicans, the absence in the record of any reference to the effect the dismissals might have on those investigations seems like a particularly glaring omission.

On a related note, the fact that Carol Lam was one of the dismissed U.S. Attorneys makes Alberto Gonzales' self-professed distance from the process all the more curious. Might the attorney general not want some input on the dismissal of the prosecutor handling one his department's most important cases? As Chuck Schumer has said, either Gonzales knew about the purge and sanctioned it, which is bad, or he didn't know about it, which is worse.

What is not in the DOJ documents may say as much about this scandal as what is there.

Daniel Bogden, the U.S. Attorney for Nevada until his ouster by the Bush Administration, sat down this week for an interview with the Las Vegas Sun, and doesn't pull many punches.

We pick up after the December 7 phone call in which he was asked to resign:

[Bogden] started asking questions, and finally reached acting - Associate Attorney General William Mercer, the No. 3 man at Justice. . . .

"He says, 'The administration has a short two-year window of opportunity where they can get candidates out to your positions, where they can get the resume together, they can have the experience of the U.S. attorney in their background that would make them a more viable candidate for future judgeships, for political office.' " . . .

At least, that's what he was told behind the scenes.

Initially, Bogden didn't talk to the media:

Then Gonzales testified before Congress. "He raises his right hand and he says this isn't political, this isn't political, this isn't political, and I knew damn well it was political."

Next, McNulty testified that the firings were related to "unspecified performance issues."

One of those alleged performance-related issues was Bogden's refusal to take an obscenity case being pushed by Brent Ward, the head of Justice's Obscenity Prosecution Task Force. Bogden recounts the episode:

Last year Ward and some of his team came to an adult video awards conference in Las Vegas.

"They go in there, and in their super-sleuthing work, they come up with the name of an individual who may be selling obscene videos over the Internet," Bogden said. . . .

Ward's team wanted to send a message and wanted Bogden to take it on.

He declined, citing the weakness of the case, and staff levels at his office, which had declined under the Bush administration despite Nevada's growth.

Then the e-mails emerged recently revealing Ward's harsh words about him.

"It just enraged me," Bogden said. "You see those e-mails and the things they say about me and the other attorneys, people who are very respected. And they are just demeaning and belittling and unprofessional."

A lack of professionalism within the crew running the Justice Department is not the worst of the many offenses committed in this scandal, but it is one of the reasons--perhaps the primary reason--so many people from both sides of the aisle have been so appalled by what has emerged thus far. It's not just that the department's explanations for why the USAs were dismissed don't stand up to any scrutiny or that this whole affair has all the hallmarks of a political purge. Both of those things are true. But the lack of professionalism at the highest levels of the department signals to those familiar with how things used to work at DOJ that long-held standards of conduct have been breached.

Once that breach occurs, anything can happen.

Late update: The L.A. Times goes looking for answers on the Bogden firing and comes up empty.

Rep. Chris Cannon (R-UT) puts it right out there: There is "nothing wrong with firing a U.S. attorney for the reason of politics."

The WaPo looks into why Margaret Chiara, the ousted U.S. Attorney for the Western District of Michigan, made the list of the Gonzales 8--and comes up with no compelling answers.

Democratic senators want to know more about why the President shut down the internal Justice Department investigation into warrantless wiretapping.

The conviction of Stephen Griles, the Interior Department's former No. 2 official, shows why Congress just might want transcripts of any interviews with White House officials about the U.S. attorney purge.

Many of you have probably already seen this, but I just want to flag it for future reference:

The Justice Department also said yesterday that Monica Goodling, a senior counselor to Gonzales who worked closely with Sampson on the firings, took an indefinite personal leave from her job on Monday. A Justice official said that she is still employed there but that it is not clear when she will return.

Goodling was the DOJ liaison to the White House.