I just met one of the fired U.S. Attorneys

I went to a very interesting CLE seminar at Cleveland-Marshall law school last night.

The topic was “Politics and Justice - Politics at Justice?” John L. McKay, U.S. Attorney for the Western District of Washington from 2001-2006, was one of the panelists, as was a Penn State prof who’d long ago written a book about the DoJ and its dealings with U.S. attorneys; Loretta Lynch, former U.S. Attorney for the Eastern District of New York from 1999-2001; and Greg White, current U.S. Attorney for the Northern District of Ohio, which includes Cleveland.

McKay got the most attention, as you might expect, and spoke about how surprised he was to get the call asking him to resign, just months after he and his office got stellar marks in a DoJ performance review. He talked about later comparing notes with the other nine fired U.S. attorneys, realizing that there was more than met the eye, and how frustrating it is to still not really know why he and the others got the boot (since Gonzales, Goodling, Sampson, Miers, Rove, etc. have stonewalled to one degree or another). He said he’s heard the DoJ inspector general’s report on the firings might come out as early as next month, and that he expects it might lead to criminal prosecutions, of Gonzales or his underlings. I spoke briefly with him afterwards.

Maybe not much of a great debate, I suppose… but any questions/thoughts?

I would love to see some criminal prosecutions, but I was under the impression that Rove, Gonzalez, et. al., while behaving unethically and with great disdain for the judicial process, didn’t do anything actually prosecutable. On what grounds would criminal prosecutions proceed?

I’m curious what sort of criminal prosecutions might be contemplated. As far as I can tell, the firings of the U.S. Attorneys, though contrary to the long tradition of their being treated non-politically, appears to be totally within the right and power of the President and/or Attorney General.

I guess it would have to be (as I suppose it all too often is) in connection with the cover-up of what actually happened. Obstruction of justice, perjury before Congress and the like, perhaps.

It’ll be interesting how Judge Mukasey (assuming he’s confirmed) handles the report when it comes out.

Well, assuming some peon needs to be thrown to the ravening pack of buses, I expect that the phrase “bad apple” will be used.


Politically motivated prosecution, perhaps? (Not sure it’s actually a crime, unless it can be brought under the heading of either malicious prosecution, or obstruction of justice.)

McKay and other panelists mentioned all of those, as well as perhaps (emphasizing that he was just speculating) conspiracy, obstruction of justice and lying under oath to Congress.

Any that were caused by the desire to slow or stop an active investigation/prosecution (or perhaps start or continue a groundless one), whether for political motives or not, would certainly seem to be “obstruction of justice”, wouldn’t it? Unfortunately there are smoking guns for both examples (the Renzi and Siegelman cases come to mind).

Obstruction of justice is what comes to my mind too.

But given my ignorance, I’d like to ask the legal eagles here: first, would it be obstruction of justice if it could be demonstrated that one of the motivations for some of the firings was to delay or impede criminal investigations by the offices of some of the fired U.S. attorneys? And second: assuming a ‘yes’ answer to the previous question, what sort of evidence would one need to make a solid case for such obstruction?

IANAL but I act like one

How can it be obstruction of justice if the higher ups at the DOJ do not want a case prosecuted? Are US Attorneys really THAT independent?

Used to be.

My WA, NAL, guess would be that if an investigation that was turning up strong evidence of serious crimes was deliberately impeded, then that would be obstruction of justice.

Ditto blocking a prosecution once the investigation was done, and the prosecutor was in possession of what appeared to be more than sufficient evidence to convict on major crimes.