A Different Kind of U.S. Attorney Scandal

Or, how to stay in the good graces of Karl Rove

The attorney general, not Mauskopf, makes the final decision in death penalty cases, acting on the recommendation of the U.S. Attorney. But Mauskopf's aggressive support of the Bush efforts to "federalize the death penalty" has helped make New York one of the three states with the most cases. The use of these cases as a DOJ measure of U.S. Attorney performance became clear in a department e-mail that derided one of the dismissed U.S. Attorneys for expressing "differences of opinion about when to seek the death penalty." The Los Angeles Times reported that three of the fired eight disagreed with Justice on capital cases.

A Sampson e-mail underlined the importance of acquiescence in the DOJ's evaluation process, noting that "it included not engaging in policy con flict with Main Justice." Ironically, when Rhode Island senator Sheldon Whitehouse said that it was his "deeply held conviction that the independence of the U.S. Attorneys collectively from DOJ" was "an asset in the administration of justice" and that the dismissals were "highly destructive of that asset," Schumer immediately agreed. "That's my two cents' worth," Whitehouse, a former prosecutor, declared. "Worth more than two cents," chimed in Schumer, though he is apparently prepared to ignore that standard in supporting the obsequious Mauskopf for the bench.

Mauskopf's counterpart in Manhattan, Michael Garcia, has been in office only since September 2005, so he wasn't on Sampson's March rating sheet. Instead, the Sampson review listed the Southern District position as vacant and "pending a candidate," even though one of the most distinguished U.S. Attorneys in the country, David Kelley, was running the office at that time. Kelley, who was driven to Washington on the night of September 11 to co-direct the Justice Department probe of the attacks, ran the office's counterterrorism unit and was involved, as a supervisor or prosecutor, in every major terrorism case prior to 9/11. He personally tried Ramzi Yousef, the mastermind of the 1993 World Trade Center bombing; played a key role in the 1998 indictment of Osama bin Laden; and guided the millennium, African embassy, and USS Cole probes.

When U.S. Attorney James Comey was promoted to deputy attorney general in December 2003, Kelley, who then held the No. 2 job in the Manhattan office, became an interim U.S. Attorney. After four months as interim, he was installed as U.S. Attorney by the judges in the Southern District, in accordance with federal law.

Despite Kelley's remarkable credentials, Bush never formally appointed him. The recent e-mails unveiled in the congressional probe indicate that Karl Rove began inquiring about U.S. Attorney appointments in January 2005, shortly before the Sampson list was sent to the White House that March. Five days after Sampson's memo, the Sun quoted a White House spokesman as describing Kelley as "an acting U.S. Attorney," which Kelley's office immediately rebutted, saying the spokesman's "lingo is wrong" and that Kelley had been a U.S. Attorney since April 2004, when the judges appointed him. A month later, the new AG, Gonzales, dumped Kelley, the first U.S. Attorney Gonzales dismissed, replacing him with the respected Garcia, who then worked at Homeland Security. Schumer and several Justice officials were quoted at the time as saying that Kelley was forced out only because he was a registered Democrat, a charge no one at Justice denied. Schumer said: "It is the pattern of this administration that they want someone who is part of the family."

Kelley would only say: "I would love to do this job for longer. But it's the president's prerogative." Though he was outraged that his party registration cost him his job, Kelley only expressed "disappointment" publicly. That November, in an interview with the Corporate Crime Reporter, he affirmed that he was a Democrat and said: "You asked me if I was a Democrat. That's not a question I would answer when I was a prosecutor. The reason is that politics had nothing to do with what I did."

In Bushland, it had everything to do with why he was dumped.

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