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Most of the public dissection of Attorney General Alberto Gonzales’ testimony last week dwelt on the pummeling he took at the hands of the Senate Judiciary Committee, particulary from members of his own party. But beyond the relentless back-and-forth combat between Gonzales and hostile senators, some crucial details emerged about how management of the Justice Department has changed during the Bush administration. Gonzales’ testimony revealed a department that has lowered the traditional walls erected between the White House, Main Justice, and the U.S. Attorney’s Offices in the field, former Justice officials say. And that could have a profound impact on the way the department carries out its business in the future. One of the policy changes has to do with Gonzales’ discussion about the rationale for firing U.S. Attorney Margaret Chiara, which the former officials say appeared to lay out a new and potentially troubling standard for measuring the management capabilities of U.S. attorneys. The other, which emerged during questioning from Sen. Sheldon Whitehouse (D-R.I.), is an apparent structural shift in the relationship between the Justice Department and the White House — a matter of renewed significance given the allegations that the Justice Department has been “politicized” during Gonzales’ leadership. With respect to Chiara, who was fired from her post as U.S. attorney for the Western District of Michigan, Gonzales gave a particularly vague standard for how U.S. attorneys were to be judged as managers. In fact, Gonzales testified that he couldn’t remember exactly why he fired Chiara on Dec. 7, but he said that after studying Justice Department documents in preparation for the hearing he had concluded that the reason was “poor management issues, loss of confidence by career individuals.” The only evidence of mismanagement Gonzales offered, however, was that “we had to send someone out from Main Justice to help mediate some kind of personnel dispute.” KEEPING QUIET That, says one former Bush administration U.S. attorney, sends the wrong message to U.S. attorneys — who should use the Executive Office of U.S. Attorneys to help with management issues in the office. “What has the attorney general now done?” asks Thomas Heffelfinger, who was U.S. attorney in Minnesota from 2001 to 2006, and who worked closely with a number of the fired prosecutors. “He’s now told U.S. attorneys that are now there, �If you ask for help, you run the risk of getting fired.’ How is that helping the management function of the U.S. attorneys?” In fact, John Kelly, the deputy director of the Executive Office of U.S. Attorneys, was recently sent to Heffelfinger’s old office to mediate after the office’s three top assistant U.S. attorneys stepped down from their leadership positions — reportedly over discontent with the leadership of Heffelfinger’s replacement, 34-year-old Rachel Paulose. Paulose, who was appointed on an interim basis in March and later confirmed by the Senate, did not respond to a request for comment last week. But Heffelfinger says the attorney general has put Paulose and other U.S. attorneys in a difficult spot. “It would seem to me if you set a standard, you need to apply it,” says Heffelfinger. “Every U.S. attorney now has the precedent of a Margaret Chiara looking her in the face.” That, of course, presumes that the standard Gonzales set in Chiara’s firing is a policy rather than an after-the-fact justification for someone who wasn’t actually fired for performance reasons. “I think they deserve their jobs back,” says James Vines, who was U.S. attorney in the Middle District of Tennessee from 2002 to 2006. Vines, who is now a partner in the D.C. office of King & Spalding, acknowledges that such a move may be impractical — but says that something immediate needs to be done to return credibility to the department. “I think very solid leadership needs to be restored at the Department of Justice, whatever it takes to get there,” Vines says. That the rationale for some of the U.S. attorneys’ firings may have been conceived after they were already dismissed was the view of one Republican senator at the hearing. “Mr. Attorney General, most of this is a stretch,” said Sen. Lindsey Graham (R-S.C.). “It’s clear to me that some of these people just had personality conflicts with people in your office and the White House, and we made up reasons to fire them . . . and some of it sounds good and some of it doesn’t.” A MUCH BIGGER LOOP In addition, the hearing threw light on a policy that appears to have allowed the Justice Department and the White House to become much more closely linked structurally during the Bush administration — in a way perhaps unmatched since the Watergate era. The change was highlighted during questioning late in the day by Whitehouse, himself a former U.S. attorney and the most junior member of the panel. Whitehouse highlighted two memos — one written in 1994 by then-Attorney General Janet Reno, and another written in 2002 by then-Attorney General John Ashcroft — that defined the channels through which the White House and the Justice Department could discuss criminal investigations. Reno’s memo, issued on Sept. 29, 1994, and addressed to Lloyd Cutler, then special counsel to the president, said, “Initial communications between the White House and the Justice Department regarding any pending Department investigation or criminal or civil case” could take place only among a handful of senior officials. At the Justice Department, the only officials authorized to have such discussions were the three highest-ranking officials: the attorney general, the deputy attorney general, and the associate attorney general. The only officials they were authorized to speak with about such matters at the White House were the president, the vice president, and the White House counsel and deputy counsel. But, says one former Reno Justice Department official, that memo merely memorialized Justice Department tradition. “The Clinton policy is not really a Clinton policy,” says Nicholas Gess, who was an associate deputy attorney general under Reno. “It’s a historical policy going back as far as anyone remembers.” Gess says that the policy has its roots in the Justice Department’s post-Watergate reforms, after President Richard Nixon had used the FBI and other agencies to investigate his political enemies, and that contacts between the White House and Justice in the Clinton years about ongoing criminal matters were limited to extraordinary cases, such as the Oklahoma City bombing in 1995. But the policy was changed in April 2002, when Ashcroft issued a revised memo dramatically expanding the number of employees at both the White House and the Justice Department who could discuss criminal investigations. Ashcroft’s memo, in effect, stated that at the Justice Department, not only the attorney general and deputy attorney general but members of their staff, as well, would be allowed to discuss criminal investigations with the White House. Likewise, at the White House, lower-ranking officials in the Offices of the President, the Vice President, and the White House Counsel would be permitted to be party to such discussions. At the Justice Department, the memo expanded the number of officials authorized to have these discussions from three to more than 30. And at the White House, it expanded the figure from four to more than 100. Under Ashcroft and now Gonzales, junior political aides — at both Justice and the White House — have had authorization to discuss ongoing criminal matters. “The way this policy reads, an intern in the office of the deputy attorney general could be communicating about case-related information to an intern at the White House Counsel’s Office,” Gess says. During the hearing, Whitehouse questioned Gonzales about whether it was wise to allow so many people to discuss criminal matters between the Justice Department and the White House. “What possible interest in the administration of justice is there to kick the portal so wide open that this many people now can engage directly about criminal cases and matters as compared to before?” Whitehouse asked Gonzales at the hearing. Gonzales, who was White House counsel at the time of Ashcroft’s memo, offered no insight into why changing the policy was a good idea. “You raise a good point here, one that I was concerned about at the Counsel’s Office and I remained concerned [about] as attorney general,” Gonzales said, adding: “I’m not aware that there are initial contacts between the White House and the Department of Justice with respect to specific criminal matters, or if there are, I don’t think there should be.” Of particular interest to Whitehouse was an assertion made by John McKay, who was fired from his post as U.S. attorney for the Western District of Washington. McKay told The Washington Post last month that during an interview for a federal judgeship with then-White House counsel Harriet Miers in August 2006, Miers told him that he had “mishandled” a voter-fraud investigation during Washington’s gubernatorial election in 2004. (McKay told Legal Times last month that his office had thoroughly investigated voter-fraud allegations. “There was never any credible evidence submitted to the FBI or my office that indicated a crime occurred,” he said.) If McKay’s story is true, Whitehouse concluded, either Miers had no basis to make such an assessment, or she had been given information about a federal criminal investigation. The attorney general said he had no knowledge of Miers’ conversations with McKay, but he said that Whitehouse’s sentiments paralleled his own. Said Gonzales, “I, like you, am concerned about ensuring that the contacts between the White House and the Department of Justice occur within the appropriate channels.”
Jason McLure can be contacted at [email protected].

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