The question of whether any of the 85 U.S. Attorneys who were not fired by the Bush administration may have engaged in political prosecutions blew open Tuesday, when key members of the Senate Judiciary Committee demanded files pertaining to a botched prosecution in Wisconsin.
Committee chair Patrick Leahy, D-Vermont, and five other senators have asked Attorney General Alberto Gonzales for documents dealing with the case of a Wisconsin state employee who was tried in a case that played out during the course of the 2006 gubernatorial race in that state. Republicans used the prosecution as part of a television attack campaign aimed at defeating Democratic Governor James Doyle.
U.S. Attorney Stephen Biskupic obtained an election-season conviction of the state employee, Georgia Thompson, on charges that she steered a state contract to a Doyle donor. But a federal appeals court last week overturned that conviction with a stinging decision that complained about a lack of evidence. One of the appeals court judges said Biskupic's case was "beyond thin."
Biskupic, who also investigated Republican-pushed charges of "voter fraud," which proved to be without validity, was not one of the eight U.S. Attorneys fired by Gonzales in what appears to have been an attempt to purge prosecutors who refused to use their positions to advance the agenda of White House political czar Karl Rove and other GOP operative.
Rather, Biskupic was one of the 85 U.S. Attorneys who met the standards applied by Gonzales and the Bush White House.
At issue, of course, is what those standards required of the federal prosecutors who retained their jobs. Were they expected to conduct politicized prosecutions? More importantly, did any of them conduct prosecutions on a schedule designed to benefit Republican electoral prospects?
Leahy and his colleagues have begun the process of seeking answers to those questions, with a request for documents detailing communications between Biskupic and the White House and the Department of Justice, as well as information about communications between the Department of Justice and Republican political operatives concerning cases in Wisconsin.
In their letter, Leahy and New York Senator Chuck Schumer, California Senator Diane Feinstein, Rhode Island Senator Sheldon Whitehouse and Wisconsin Senators Russ Feingold and Herb Kohl, explain that, "We are concerned whether or not politics may have played a role in a case brought by Stephen Biskupic, the United States Attorney based in Milwaukee, against Georgia Thompson, formerly an official in the administration of Wisconsin's Democratic governor. The Seventh Circuit Court of Appeals was reportedly so troubled by the insufficiency of the evidence against Ms. Thompson that it made the unusual decision to issue an order reversing Ms. Thompson's conviction and releasing her from custody immediately after oral arguments in her appeal."
The request is significant for two reasons — one involving the Wisconsin case in particular, the other involving the broader direction of the Senate's inquiry into political prosecutions.
First, the senators know that there are documents in the possession of the Bush administration detailing the desire of Republicans in Wisconsin to have Biskupic pursue cases that matched their political agenda. Thus, this is not a fishing expedition, but rather a targeted request for memos that have already been confirmed to exist.
Second, the senators have clearly signaled their intent to take the committee's inquiry beyond the narrow confines of a discussion about the eight fired U.S. Attorneys. As they say in their letter, "One of the central issues in our investigation is whether the Department of Justice has improperly encouraged U.S. Attorneys to pursue, or to refrain from pursuing, politically sensitive cases."
What ought not be forgotten is that, while the Wisconsin case has blown up in recent days, concerns have also been raised about the politicization of prosecutions by sitting U.S. Attorneys in New Jersey and other states.
Ultimately, the big story of the scandal at the Department of Justice will not be that of the eight fired prosecutors. It will be that of the 85 who were not fired, and of what they did or did not do to keep their jobs.
John Nichols' new book is THE GENIUS OF IMPEACHMENT: The Founders' Cure for Royalism. Rolling Stone's Tim Dickinson hails it as a "nervy, acerbic, passionately argued history-cum-polemic [that] combines a rich examination of the parliamentary roots and past use of the 'heroic medicine' that is impeachment with a call for Democratic leaders to 'reclaim and reuse the most vital tool handed to us by the founders for the defense of our most basic liberties.'"
Copyright © 2007 The Nation