For months, the Justice Department and Atty. Gen. Alberto R. Gonzales have taken political heat for the purge of eight U.S. attorneys last year.
Now the fallout is starting to hit the department in federal courtrooms around the country.
Defense lawyers in a growing number of cases are raising questions about the motives of government lawyers who have brought charges against their clients. In court papers, they are citing the furor over the U.S. attorney dismissals as evidence that their cases may have been infected by politics.
Justice officials say those concerns are unfounded and constitute desperate measures by desperate defendants. But the affair has given defendants and their lawyers some new energy, which is complicating life for the prosecutors.
Missouri lawyers have invoked the controversy in challenging last year’s indictment of a company owned by a prominent Democrat, on suspicion of violating federal wage and hour laws. The indictment, which came two months after the owner announced that she was running for political office, was obtained by a Republican U.S. attorney who also has been criticized because he charged workers for a left-leaning political group on the eve of the 2006 midterm election.
A lawyer in a child pornography case recently defended his client at a federal trial in Minnesota in part by questioning the motives of the Republican U.S. attorney, who has come under scrutiny in the congressional investigation into the prosecutor purge.
Lawyers for a former county official in Delaware who has been accused of corruption asked a judge in early May to allow them to subpoena the Justice Department and White House for documents to see whether political motives factored into charges being brought against the official. They cited the brewing controversy inside the Beltway.
“Those revelations dramatically reinforce the reasons to believe that considerations beyond mere law enforcement are behind this prosecution,” the lawyers wrote.
The defendant, a once up-and-coming Democrat, was being prosecuted by the U.S. attorney in Wilmington, a Republican appointee.
In an inch-thick response, the U.S. attorney said nothing could be further from the truth, and said the attacks were “sullying the reputations of every prosecutor and law enforcement officer involved in this case,” including more than a dozen career prosecutors and agents.
U.S. District Judge John P. Fullam eventually sided with the government, saying that if there were any improper motives for bringing the case, they would become evident at trial, in cross-examination. He also noted that the decision to bring the indictments was made in May 2004 -- “long before Mr. Gonzales became attorney general.” (Gonzales’ swearing-in was in February 2005.)
The defendant subsequently pleaded guilty to bank fraud.
The firing of the eight prosecutors last year has drawn attention because once appointed, U.S. attorneys traditionally have been allowed to serve until they resign or are ousted because of misconduct. New administrations routinely make changes as well.
Gonzales has defended the dismissals as justified for performance reasons, saying that some of the prosecutors failed to follow administration law-enforcement priorities.
But Democrats say there is evidence that the dismissals were part of a Bush administration effort to affect investigations in public corruption and voting cases that would assist Republicans. The probe has also shown that politics may have played a role in the hiring of some career Justice employees, in possible violation of federal law.
The controversy has drained morale from U.S. attorney offices around the country. And now, legal experts and former Justice Department officials say, it is casting a shadow over the integrity of the department and its corps of career prosecutors in court.
There has long been a presumption that, because they represented the Justice Department, prosecutors had no political agenda and their word could be trusted. But some legal experts say the controversy threatens to undermine their credibility.
“It provides defendants an opportunity to make an argument that would not have been made two years ago,” said Daniel J. French, a former U.S. attorney in Albany, N.Y. “It has a tremendously corrosive effect.”
Defense lawyers in political corruption cases often argue to juries that the prosecution was motivated by politics, especially when the prosecutor happens to be of a different political party than the defendant.
B. Todd Jones, a former U.S. attorney in Minneapolis, said such arguments are now “given credence in the public eye because they are seeing that maybe there were political decisions made. Any defense lawyer worth their salt is going to say this is a political prosecution that shouldn’t have been brought.”
The controversy may also be feeding anti-government feelings that many jurors bring to cases, even when defense lawyers do not overtly try to exploit the situation.
“It has become part of the background that jurors have in their minds when they deliberate,” said Rep. Adam B. Schiff (D-Burbank), a former assistant U.S. attorney. “Jurors will think, ‘Gee, is there a political motivation for this? Is it being brought because the U.S. attorney wants to curry favor with the attorney general and keep his job?’ Corruption cases are tough enough to prosecute without having to defend yourself against attack.”
Lawyer Daniel Gerdts won an acquittal in federal court in Minneapolis last month for a New York computer consultant who had been accused of bringing child pornography into the United States on his way back from a business trip to Asia.
The defendant, who worked for a Japanese producer of adult videos, said he was hired to set up Web pages to market the videos and to search the Internet for pirated copies. He conceded he might have inadvertently downloaded child porn in the process of doing his job.
In court, Gerdts said prosecutors had failed to exercise proper discretion in bringing the charges. During his closing argument to the jury, he suggested a reason, alluding to published reports of upheaval in the office since Rachel Paulose had become U.S. attorney in 2006.
Paulose is believed to have gotten the posting with the help of Monica M. Goodling, a former Gonzales aide who recently testified under a grant of immunity from prosecution that she “crossed a line” by improperly allowing politics to influence hiring decisions at the Justice Department. Several senior prosecutors in the Minneapolis office resigned their management posts to protest Paulose’s leadership.
The effect of Gerdts’ courtroom remark was unclear. Government lawyers objected, and the judge told jurors to ignore the comment.
After the verdict, jurors said they did not believe the government’s accusation that the defendant had intentionally downloaded contraband files.
In Springfield, Mo., defense lawyers are seeking a court order for evidence of improper contacts between former interim U.S. Atty. Bradley J. Schlozman and former Bush administration official Asa Hutchinson about the indictment last year of a company known as Managed Subcontractors.
Schlozman was questioned this month on Capitol Hill about his decision to obtain indictments of some former voter registration workers for the liberal Assn. of Community Organizations for Reform Now, or ACORN, less than a week before the midterm election last fall.
Managed Subcontractors had been the target of an investigation in 2002 by federal immigration agents working for the Department of Homeland Security. But its attorneys believed the case had gone dormant in the ensuing years.
Then, in June 2006, three months after his arrival as U.S. attorney, Schlozman secured an indictment. The principal owner of the company, Robbyn Tumey, had recently filed as a Democratic candidate for the state House in neighboring Arkansas.
Hutchinson, who was then in a hotly contested race for governor of Arkansas, was interested in the case because he was running on a get-tough-on-immigration platform, the court filing contends.
After her company was indicted, Tumey resigned as chairwoman of her local Democratic Party and withdrew from the Arkansas House campaign.
Hutchinson, who lost his bid for governor, could not be reached for comment. In an interview with the Arkansas Democrat-Gazette, he said there was “zippo” evidence linking him to the indictment decision.
Thomas Carver, Tumey’s lawyer, conceded that seeking the court order “involves some degree of speculation on our part because we obviously are not privy to the inner workings of the U.S. attorney’s office.” But he said his client had a right to the information.
“One of the reasons to file the motion was to determine if there is any cause for alarm,” he said. “We are not in a position to make accusations ... but we would certainly like to know.”