The impresarios of Washington, D.C.’s tourist industry have retained a battery of image consultants to furnish a new city catchphrase, like Seattle’s brand-new “Metronatural” or Little Rock’s in-your-face “the Rock.” D.C. boosters have been making do with a soporific Ken Burns–style appositive, “the American Experience,” and the city’s oddly intransitive license-plate slogan, “Celebrate and Discover.”
Here’s one that promises to do the job nicely: “Defining Deviancy Down.” Connoisseurs of neoconservative blather will recognize the phrase, coined by the late Senator Daniel Patrick Moynihan and popularized by Charles Krauthammer as a key bludgeoning tool in the psychiatrist-pundit’s ongoing effort to identify liberalism with relativism, criminal-coddling and general treachery against the commonweal. But Dr. Krauthammer delivered that phantom diagnosis in the Clinton years. Now, the coddling business—like most everything else in Washington—has shifted rightward.
Just consider the controversy now swamping Alberto Gonzales’ Department of Justice over the abrupt dismissal of eight U.S. attorneys in quite unmistakable flourishes of ideological retribution and old-fashioned cronyism. Dogged investigators at online journalism outlets such as Talking Points Memo’s TPMmuckraker.com have done great work documenting the D.O.J.’s thuggish management of its appointed corps of attorneys. Meanwhile, President George W. Bush has derided the Congressional demand for subpoenas as a run-up to “show trials” and a means of “scoring political points,” while White House spokesman Tony Snow christened it partisan “hot-dogging.”
The D.C. pundits are swooning in chorus. Dr. Krauthammer, with much jowly regret, called for Mr. Gonzales to resign over his clumsy handling of the fallout from the controversy, but confidently dubbed the controversy proper a “pseudo scandal.” Time magazine columnist Michael Kinsley recited the standard media line, pronouncing in a sweeping but ignorant flourish of capital insiderism that “there is … nothing illegal about a president firing a U.S. attorney. There is nothing even … wrong with it.” (It’s precisely this sort of razor-sharp skepticism that has evidently earned Mr. Kinsley The Week magazine’s 2006 “Columnist of the Year” award.)
(Disclaimer: The piece was published on Time’s blog, which is edited by Ana Marie Cox, to whom this writer is married.)
On television, of course, the notional debate has mental M.R.I. readings in the Terri Schiavo range. MSNBC Washington correspondent Norah O’Donnell, in jaw-dropping obeisance to White House talking points, accused U.S. Senate Judiciary Committee chairman Patrick Leahy, the Vermont Democrat, of not trusting the White House (a charge that Mr. Leahy, to his enormous credit, cheerfully confirmed). For good measure, she assured the Senator—himself a former prosecutor—that he was “going to get the truth from Karl Rove,” even though the President had only offered for Mr. Rove and other major White House players in the scandal to speak to Congress off the record, without benefit of a subpoena or official transcript. Amazingly, Ms. O’Donnell did not go on to suggest that Mr. Leahy go fuck himself—as Vice President Dick Cheney once famously did on the floor of the U.S. Senate.
This kind of louche pundit hubris stems from the see-no-evil thinking Mr. Kinsley cheerfully professes: Without a clearly enumerated violation of a section of the U.S. Code, preferably photocopied and highlighted in yellow by a panel of judges, it has to be perverse partisan grandstanding—and quite probably conspiracy-mongering—to suggest an abuse of power has occurred. Never mind that the various rationales offered by Messrs. Gonzales, Rove and others vanished the moment that Congress began wading through the Justice Department’s own archived e-mails, dumped unceremoniously in a single 3,000-page ream two weeks ago (though with 16 days’ worth of Justice cyber-exchanges inexplicably missing). The administration’s primary line of defense—that the canned lawyers didn’t perform to snuff—fell to ground with the Justice-approved request from dismissed New Mexico U.S. Attorney David Iglesias for a job reference from Mr. Gonzales. Then the pitiful claim that the lawyers weren’t pursuing cases in accord with prime administration policy directives shriveled up and died, with a number of exchanges showing the Young Turks in Justice frantically trying to come up with such directives well after the fact.
Meanwhile, Justice officials are already making it seem like they have plenty to hide. When Mr. Leahy declined President Bush’s request to allow staffers to speak to the committee without swearing oaths and with no transcript, significant players started clamming up.
Yesterday, the attorney for Mr. Gonzales’ senior counselor at Justice, Monica M. Goodling, announced that his client plans to plead the Fifth before the Leahy committee.
Never mind as well that the additional rationales which editorialists such as Mr. Kinsley thoughtfully provided for Messrs. Gonzales, Rove & Co.—that the Clinton administration exercised the same “pleasure of the president” authority in canning all 93 appointed U.S. attorneys as it came to power in 1993—were likewise contradicted in the Justice e-mails, which showed Mr. Gonzales’ recently resigned chief of staff, Kyle Sampson, plainly stipulating that Justice’s lawyer purge could not be measured against the Clinton precedent.
Now, in a grand irony that no one in their number has paused to note, the members of the D.C. pundit corps have spent the entire buildup to this confrontation echoing the very sort of gnat-straining legal justifications they derided throughout the Clinton years. Like Al Gore confronted with the unlovely evidence of his exuberant fund-raising style, they all have insisted that there is no controlling legal authority here.
Craven, Partisan and Dirty’
Except, of course, this case is all about legal authority of the most destructively controlling sort. “You particularly have the legal branch of government trashing the law,” says legal historian Stanley I. Kutler, author of the Nixon-tapes chronicle Abuse of Power. “The rule of law isn’t applying to the rulers any longer.”
Mr. Kutler notes as well that this sort of core tampering with the separation of powers isn’t exactly easy to reel back once it’s been unleashed. “So am I supposed to think that Hillary will instantly bring my habeas corpus back?” Mr. Kutler asks. “For 40 years, I taught legal and constitutional history. I’m glad I’m no longer teaching. If I had to give one of those lectures today, I’d have to tell my students, ‘This is all now bullshit.’”
Veterans of past Justice Departments feel much the same outrage.
“When I joined the Justice Department in 1990,” recalls Jonathan Shapiro, a former assistant U.S. attorney in Los Angeles, “there were still folks around who would tell you the story about how they lined the hallways to give Elliott Richardson a standing ovation when he left,” after the then Attorney General resigned in protest over Richard Nixon’s “Saturday Night Massacre” firing of Watergate special prosecutor Archibald Cox. “When I left the job in 1998, there was still the sense that it was verboten to fuck around the with the U.S. attorneys. No one had the brass to fire them for political motivations—it would look far too craven, partisan and dirty.”
What’s more, Mr. Shapiro, who now teaches at the U.S.C. Law School, suggests that capable prosecutors could indeed identify significant trespasses against the criminal code in the scandal.
“There is a part of the mail-fraud statute that says it shall be mail fraud or wire fraud to deprive the people of honest goods and services. That has often been used to target corrupt government officials, or union officials who have figured out a way to deprive their memberships of fair elections.
“Now it seems to me there’s a strong prima facie case to be made that these narrow political firings are depriving citizens of these attorneys’ districts of the Justice Department’s honest services.”
Of course, Mr. Shapiro adds, no such prosecution is likely, since “the very people who would bring it are the ones who are behind these firings.” And competence is not exactly their strong suit, he adds. “If I go hire a lawyer, what am I looking for? I’m looking for competent advocacy. Whatever else you say about these people in Justice, they have fucked up confirmations of a Supreme Court justice; they’ve mishandled the prosecution of terrorism cases; they’ve mishandled the writing and the passage of the Patriot Act. And now they have aggressively and foolishly taken on the appointment of U.S. attorneys”—who traditionally get named via consultation with the U.S. Senators from the state in which the district is located—“and turned this political move into a seeming criminal conspiracy. If these guys were the lawyers you hired to handle your divorce, you’d complain to the state bar.”
Bush’s Great ‘Middle-Class Riot’
There’s a still bigger gruesome paradox here. The less we are encouraged to consider how the rule of law plays into our daily lives—courtesy of legislation such as the U.S.A. Patriot Act, which has furnished the Justice Department with the power to indefinitely suspend Senate confirmation of midterm U.S. attorneys—the more those who manipulate its core precepts are granted the sweeping benefit of the doubt.
Among other things, this arrangement only further ensures that few genuine influence-peddling scandals can hope to get serious legal attention at all. Indeed, early evidence strongly suggests that Carol Lam, the fired U.S. attorney in the San Diego District, was let go as a direct result of her aggressive prosecutions of Randy (Duke) Cunningham’s cronies, Kyle (Dusty) Foggo and Brent Wilkes.
And unserious investigations had swollen into urgent D.O.J. business of the first order. White House counsel Harriet Miers, for example, darkly warned Seattle’s U.S. attorney, John McKay, prior to his cashiering that Washington State officials were “angry” with him for not following up on voter-fraud charges against the Democrats in the close 2004 election victory of Democratic Governor Christine Gregoire. And New Mexico Senator Pete Domenici wanted to bully Mr. Iglesias into prosecuting meritless charges of voter-registration fraud among state Democratic operatives; after declining, Mr. Inglesias, too, hit the bricks.
Such episodes are not merely constitutionally alarming bids to job the election process for political gain—they are also vivid reminders that the defining moment of the Bush era wasn’t actually the terror attacks of Sept. 11, 2001, but the “middle-class riots” that Bush operatives proudly orchestrated (and largely staffed) during the bitter ballot wars of Florida in 2000. Indeed, unto its innermost workings, the Bush administration reads as one long middle-class riot, from the Office of Special Plans’ fanciful intelligence work in the run-up to the Iraq War to the brutal federal non-response to Hurricane Katrina. And yet, by the curious alchemy of D.C. punditry, it is somehow critics of the Justice Department who are accused of politicizing the justice system.
The commentariat’s don’t-ask-until-indictments ethos also ensures that scandals which aren’t principally driven by the legal trespasses of outsized personalities escape serious comment altogether. The Norah O’Donnells of the world will just give blank stares if you mention the untrained junior political aides who airbrushed evidence of human-generated global warming out of reports from the White House’s climate-change panel, or the likely recess appointment of anti-regulatory scholar Susan E. Dudley to head—yes—the White House Office of Information and Regulatory Affairs, which has overturned high-impact regulatory policies, to the great benefit of the offending businesses. Factor in the administration’s more notorious cronyist handiwork—Michael Brown’s FEMA appointment, or the abortive Miers nomination to the Supreme Court—and the U.S. attorneys scandal emerges not as an aberrant extra-official trespass, but rather as the positive rule for exacting strict policy fealty at all levels of government. This White House is not a government of laws—only of enforcers.
But for Washington writers to notice such things, they need a frame of reference beyond the pretty podiums and fancy language of an indictment press conference. Mr. Kutler recounts a call he recently fielded from a wire-service reporter seeking a suitable quote on the U.S. attorneys scandal and executive privilege.
“I told him to look at Haldeman and Ehrlichman—and not only Nixon guys who were facing indictment, but also figures like Pat Buchanan, who weren’t,” Mr. Kutler said. “They all testified under oath. And then he asks, ‘Yeah—remind me what that was all about?’”
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