On December 7, 2006, U.S. Department of Justice official Michael Battle told seven U.S. attorneys that they were being dismissed. Three had already been let go.
Questions of political motivations immediately filled the air, and Nora Dannehy, a career federal prosecutor in Connecticut, was eventually appointed special prosecutor by former attorney general Michael Mukasey and asked to look into the scandal.
Now, nearly three years after the firings, her investigation is nearing the end, according to sources close to Dannehy. And while the investigation is not yet complete, she is considering criminal charges against former attorney general Alberto Gonzales, and possibly others, for perjury and crimes related to the firing of former New Mexico U.S. attorney David Iglesias.
Evidence strongly suggests, as the Department of Justice inspector general concluded in 2008, that Iglesias was fired because he refused to use his office for the benefit of the New Mexico Republican party. The evidence implicates a slew of New Mexico Republicans, including former congresswoman Heather Wilson and former senator Pete Domenici, along with President George Bush, White House adviser Karl Rove, and Gonzales.
The evidence that Dannehy is reviewing includes a 14-page letter from Pat Rogers, a New Mexico Republican and a lawyer, which itemized Iglesias’s shortcomings from the perspective of the party. According to Rogers, Iglesias didn’t pursue voter fraud cases against Democrats; he took no action against a voter registration drive launched by ACORN, a national community organizing group; and he held back from announcing, just before Election Day, the indictment of a prominent Democratic state politician in a manner that would have helped Republicans at the polls.
The prominent Democrat was New Mexico senate president Manny Aragon, who was skimming money from the construction of a courthouse in Albuquerque in the weeks leading up to the 2006 election. Iglesias was ready to charge Aragon, but followed instructions in the U.S. Attorneys’ Manual, which cautions prosecutors against indicting office seekers if the indictment could influence an election. Iglesias waited until shortly after the election.
Dannehy is reported to be carefully studying the precedents to see whether this conduct–which plainly violates various Justice ethical guidelines–is a crime. Her focus is on whether the conduct was an effort to “corruptly influence” a pending criminal proceeding. Most prosecutions of this crime have related to efforts to squelch a case; there is little precedent involving efforts to speed up a criminal case for partisan political purposes.
In addition, Dannehy is looking at Gonzales’s statements to internal Justice Department investigators and to Congress. Gonzales had a general failure of recollection about the circumstances of his decision to terminate the U.S. attorneys, saying, “I do not recall,” or words to that effect, 67 times in the course of a single hearing. Gonzales’s memory was particularly weak on the subject of White House involvement.
But a source close to the investigation says that Gonzales’s chief of staff, D. Kyle Sampson, has filled in much of the missing information, testifying about Gonzales’s regular meetings with Rove inside the White House, meetings that were held at that location so as not to draw the attention of Justice Department staffers. More testimony may have been provided by Karl Rove, who ended nearly two years of stonewalling by submitting to an eight-hour-long deposition conducted by House Judiciary Committee counsel on July 8. Rove will be making an on-the-record follow-up appearance before Labor Day.
Prosecutions can be brought for feigned memory failure–the successful case against Lewis “Scooter” Libby is a prominent example–but they are rare. Still, the testimony by Rove and Sampson can’t be making these easy days for Alberto Gonzales.
Horton teaches at Hofstra Law School and is on the board of the National Institute of Military Justice.