A Different Kind of U.S. Attorney Scandal
New York's two United States AttorneysRoslynn Mauskopf, who runs the Brooklyn-based Eastern District, and Michael Garcia, the head of Manhattan's Southern Districthave gone unmentioned in the weeks of news coverage about the eight federal prosecutors unceremoniously fired in Washington. But the saga of what's happened in these two elite jurisdictions is one more alarming indication of how badly politicized the evaluation process is at the Bush Justice Department.
Mauskopf, who had no federal prosecutorial experience when George Pataki convinced the White House to make her a U.S. Attorney in 2002, got the highest possible rating in the memo Alberto Gonzales's chief of staff, Kyle Sampson, sent the White House in March 2005. She was one of many on the list that Sampson's memo said should be retained because she had "produced well, managed well, and exhibited loyalty to the president and the attorney general." In fact, Mauskopf is such a White House favorite that in June 2006, and again this January, she was nominated for the federal bench, one of only four U.S. Attorneys tapped for a judge-ship at either time. GOP officials in New York and Washington are so determined to make her a judge that they negotiated a deal with Senator Charles Schumer, the Democrat on the Judiciary Committee who has led the probe of Gonzales on the dismissals. According to Eastern District sources familiar with the terms, Schumer has agreed to support Maus-kopf's confirmation, as well as two other GOP selec-tions, in exchange for White House support of a judge the senator will select in the next few months.
The Bush infatuation with Mauskopf is difficult to attribute to the standards that the Department of Justice (DOJ) maintains that it applies to U.S. Attorneysher gun convictions are well below the average percent of total caseload nationally, and her immigration prosecutions barely exceed Clinton-era totals. The overall criminal caseload in her office plunged an astonishing 38 percent in her first two years. And just as when she was New York State inspector general under Governor Pataki, she has made virtually no public corruption cases. When Schumer acquiesced to her appointment in 2002, he insisted that she recuse herself on any cases involving the Pataki administration. Though her predecessor conducted major probes of the governor before she became U.S. Attorney, she hasn't had to recuse herselfbecause her office hasn't done any. She chose not to recuse herself, however, on the office's biggest corporate corruption caseComputer Associateseven though Al D'Amato, the former senator tied to Pataki and closely linked to Mauskopf, was a CA board member and, as audit committee chair, was charged with overseeing the company's misreported finances. D'Amato's lobbying partner was the sole member of the Pataki screening panel who recommended her for U.S. Attorney.
While Mauskopf did not score well on the gun, immigration, and public corruption standards that the DOJ claims it uses to evaluate prosecutors, she was at the top of the charts by a standard the department has not acknowledged that it employs: enthusiasm for the death penalty. Her office has sought the death penalty against at least 16 defendants, prevailing, for the first time in 50 years in New York, with the recent sentence meted out to Ronell Wilson for the murder of two NYPD detectives. While this tally is among the highest of any federal jurisdiction in the country, she wound up withdrawing the death penalty notice in five cases. Her office originally filed capital charges against five members of a drug gang, one of whom was merely a lookout, but two weeks later, scaled back the charges against all but the ringleader. A jury eventually refused to execute the ringleader.
But it was her actions in the controversial case of Colombian assassin Jairo Zapata that especially pleased Bush's DOJ, and outraged other federal law enforcement officials. Mauskopf's office cut a deal with Zapata in 2002, offering him life without parole in exchange for his cooperation against others in a deadly drug ring, but Attorney General John Ashcroft insisted on seeking the death penalty. An Eastern District judge and former prosecutor, John Gleeson, wrote a law review article condemning Ashcroft's actions. "Many former federal prosecutors voiced outrage" at this interference with a cooperation agreement, The New York Sun's Jerry Capeci wrote, "but Mauskopf ate crow and applauded Ashcroft's decision to overrule her." As the opposition from other prosecutors mounted, insisting that they had to have the right to cut reasonable deals to gain cooperation, Ashcroft reversed himself in 2004.
Of the district's 11 remaining capital cases, three were on trial earlier this year at once, which a leading death penalty opponent, Kevin McNally of the Federal Death Penalty Resource Counsel Project, said was "totally unprecedented" anywhere in the country. The judge in one of those cases, Frederic Block, called the decision to seek the death penalty "absurd," just as another judge, Nicholas Garaufis, declared in a 2004 case that he was "deeply troubled" by the government's death penalty application. The jury in another case voted 10 to two against execution. Six cases are still pending in the district, including one just announced last week.
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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