March 25, 2007
Latest DOJ E-Mails -- "I don't see it as being a national story"
The Department of Justice delivered the latest set of e-mails and documents related to the termination of eight U.S. Attorneys that will be the subject of further hearings this week on Capitol Hill. A couple items may be of particular interest, and they are available below. First, the head of the Department's Office of Public Affairs, Tasia Scalinos, received e-mails in November 2006 about the impending termination of six U.S. Attorneys -- the number expanded shortly thereafter -- so that she was "in the loop." In response to one of them, she wrote, "I don't see it as being a national story -- especially if it phases in over a few months. Any concerns on your end?" That prediction, much like Attorney General Alberto Gonzeles' dismissal of this as an "overblown personnel matter," seems to have been mistaken, at least in hindsight.
Perhaps more troubling for the Department of Justice is Scalinos' statement in another e-mail that is part of the same string in which she notes that three of the six are from states bordering Mexico so that "you could make the connection that DOJ is unhappy with the immigration prosecution numbers in those districts." That makes it sound as if the decision was based on one reason but the public spin, or an acceptable rationale, would have to be something else. Professor Brad Wendel has an interesting post on the Legal Ethics Forum (here) in which he uses the employment law analysis of pretextual firings to view the U.S. Attorney terminations. That seems like a useful way to look at the issue of whether it is proper to terminate someone from a position that is both clearly political and at-will yet also involves a position of important public (and legal) trust that should not involve strictly political considerations in the exercise of discretion. The Scalinos statement may support a claim of pretext for the firings.
Another item highlighted in the e-mail traffic is a meeting organized by Kyle Sampson, AG Gonzales' former chief of staff, on November 27, 2006, with (among others) Gonzales, Deputy AG Paul McNulty, and Associate AG William Moschella, and the subject was "U.S. Attorney Appointments." Statements made by McNulty and Moschella to Congress about the issue have been acknowledged as not being entirely accurate, and Gonzales pointed the finger at Sampson as the source of any misinformation. Sampson resigned recently and is now represented by Bradford Berenson of Sidley Austin. But if McNulty and Moschella were at a meeting to discuss this issue, and given the e-mail traffic noting that the White House would help coordinate the notification of Senators and others, how is it that Sampson was responsible for any misstatements? He is scheduled to testify before the Senate Judiciary Committee on March 30, and the November 27 meeting will be a key focus for the Senators.
A Bloomberg story (here) notes that the Department of Justice has begun an internal investigation of the communications to Congress, but that's hardly likely to deter the Congressional investigations. Each set of e-mails and documents brings something new to light, and makes Capitol Hill even more suspicious about what else might be out there. (ph)
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