E-mail trail shows power struggle behind US attorneys' firings

Apparently no top officials at the Justice Department pined for the task: appear before a House panel, just as a brewing flap over fired US prosecutors reached a boil, and try to explain what happened.

It would have to be someone able to withstand three hours of questioning, noted an internal Justice Department e-mail on the subject. The implication: It might be preferable to sit three hours in a dentist's chair.

Another departmental e-mail noted, jokingly, that good management dictated that the unfortunate selectee be notified in person. But e-mail it was. "I regret to say [Deputy Attorney General Paul McNulty] picked you as the witness," said an e-mail to the chosen one, William Moschella, principal associate deputy attorney general.

As newly released Department of Justice documents make clear, the furor over the firings of eight US attorneys is at least partly driven by a power struggle between the US government's legislative and executive branches.

Much of that struggle reflects politics. Democrats in Congress continue to use their new majority status to mount hearings and investigations intended to put the White House on the defensive.

But it is partly institutional, as well. As attorney general, Alberto Gonzales has irritated powerful Republicans as well as Democrats. They may not be calling for his resignation, but neither are they rushing to his aid.

The Justice Department "has been running roughshod over Congress. What's happened here is, Congress is pushing back," says political analyst Norman Ornstein of the American Enterprise Institute.

That pushback can be seen in the speed with which Congress has moved to revoke new authority it granted the Bush administration last year to name federal prosecutors.

The authority was derived from a provision buried deep within the USA Patriot Act that allowed the attorney general to appoint federal prosecutors for an indefinite period without Senate confirmation.

In recent congressional testimony, Justice officials have insisted that they did not intend to use this provision to simply evade the confirmation process. Indeed, home-state senators have long played a key role in the selection of US attorneys. Federal prosecutors are powerful local officials, after all.

But e-mails released March 19 indicate that, back in their offices, some Justice Department officials felt otherwise.

An e-mail sent Sept. 13, 2006 from Kyle Sampson, Attorney General Gonzales's former chief of staff, said that by avoiding the confirmation process "we can give far less deference to home-state senators."

According to Mr. Sampson, who resigned recently over his role in the firings furor, this meant chosen replacements could be up and working more quickly, "at less political cost to the White House."

The recipient of the memo? Former White House counsel Harriet Miers.

The Senate voted 94-2 Tuesday to repeal this provision.

Members have also expressed irritation about what they consider to be misleading or incomplete testimony from executive-branch officials about the circumstances surrounding the recent prosecutor dismissals.

For instance, after drawing the short straw, Principal Associate Deputy Attorney General Moschella appeared before a House Judiciary subcommittee on March 6. In response to a question about possible White House involvement about the firings, he implied that White House officials were consulted only after the list of those to be dismissed had been drawn up.

Internal documents released by the Justice Department have since shown that the White House had at least some involvement in the listmaking process.

Early in January 2005, White House political adviser Karl Rove asked "how we planned to proceed" in firing some US attorneys, according to an e-mail from a White House lawyer. Another e-mail from that time period notes that Sampson, then a lower-level Justice Department aide, had discussed the idea with the White House counsel, Gonzales.

At the time of writing it remained unclear whether Gonzales could withstand the crisis swirling around his office.

President Bush's new chief counsel, Fred Fielding, was scheduled to visit Capitol Hill on Tuesday to meet with the chairmen of the House and Senate Judiciary Committees. Senate committee chairman Patrick Leahy (D) of Vermont has said he wants Mr. Rove and others to testify before his panel under oath. The White House indicated that it might resist that move on grounds of executive privilege.

Neither of the top two Republicans on the Senate Judiciary panel was stepping forward to defend Gonzales in public. Sen. Arlen Specter (R) of Pennsylvania has said he will defer judgment until he sees all the facts. Sen. Orrin Hatch (R) of Utah has declined to make public statements about the matter.

Their silence may reflect the fact that when the GOP was in the majority and he was committee chairman Senator Specter had his own differences with Gonzales.

Gonzales "would go up in front of the Republican-run Judiciary Committee and very nicely stonewall them" on questions about warrantless eavesdropping and other controversial subjects, says Mr. Ornstein of AEI.

Bush called Gonzales early March 20 to offer his support for his old friend, however.

The White House also denied reports that it is already searching for a new attorney general.

"Those rumors are untrue," said Dana Perino, White House deputy press secretary.

•Material from wire services was used in this report.