Shortly after President Bush took office in 2001, Michael Chertoff, then head of the Justice Department’s criminal division, met with the conservative group Judicial Watch. It wanted criminal charges brought against Hillary Rodham Clinton in connection with a lavish fundraising event in Los Angeles the year before.
“Chertoff personally assured us he would pursue it,” the group’s president, Tom Fitton, said recently, recalling the meeting with several top Justice officials. “They said they weren’t afraid of taking on the Clintons.”
Justice did not pursue a case against the senator from New York, but instead went after one of her fundraisers, David Rosen, who eventually was acquitted.
Now Atty. Gen. Alberto R. Gonzales has announced his resignation, brought down in part by allegations that he let politics influence Justice Department decisions. And Chertoff, secretary of Department of Homeland Security, is a prominent candidate to succeed him.
Justice Department officials say pressure from Judicial Watch -- which made its name by suing the Clintons in the 1990s -- played no role in the decision to prosecute Rosen. Chertoff will not discuss the case. But it seems to be an early example of department actions under Bush that critics say were tinged with partisanship.
The case also illustrates one problem the president faces as he considers candidates to succeed Gonzales: As much as Bush prizes loyalty and prior service, the prospect of a partisan brawl may make it difficult for him to choose Chertoff or anyone else who has been in the upper levels of his administration. If the nominee “is political in nature and susceptible to the importuning of the White House,” said Senate Judiciary Committee member Dianne Feinstein (D-Calif.), “you can be sure that individual would not be confirmed.”
From the outset of Bush’s presidency, White House strategists such as Karl Rove attempted to wring political advantage from their control of the government. The Justice Department, Democrats say, was not exempt. They cite last year’s firing of nine U.S. attorneys for what they say in some instances appeared to be political reasons.
Chertoff certainly has the professional background and legal acumen to lead the Justice Department.
He began his legal career as a Supreme Court clerk -- an opportunity usually reserved for the brightest law school graduates -- for liberal Justice William J. Brennan Jr. He prosecuted Mafia cases in Manhattan under then-U.S. Atty. Rudolph W. Giuliani. In 2003 he became a judge on the U.S. 3rd Circuit Court of Appeals before going to Homeland Security in 2005.
But his background also has a more political cast.
In the mid-1990s Chertoff, acting as counsel to an investigative committee led by then-Sen. Alfonse M. D’Amato (R-N.Y.), led an aggressive investigation of then-President Clinton and his wife. He probed the Clintons’ Arkansas real estate dealings, Hillary Clinton’s Little Rock law firm, and the actions of her staff after the suicide of White House lawyer Vincent Foster.
At Justice, Chertoff set in motion a little-noticed policy change that led to more aggressive prosecutions. Some, like the Rosen case, were dogged by allegations of partisanship.
Rosen, the fundraising director for Hillary Clinton’s first Senate campaign, was indicted on suspicion of underreporting donations used to throw an L.A. gala for the Clintons in 2000.
Key to the government’s case was a claim by California businessman Peter Paul, who hosted the event, that about $1.1 million had been spent on the program -- not the $400,000 reported to the Federal Election Commission.
But at the time, there was no legal limit on the size of contributions such as donated entertainment, so it was unclear what motive Rosen would have had to understate the amount. He said $400,000 was the figure he had been given. And even when federal authorities suspected deception in campaign reports, the FEC customarily fined campaigns rather than bringing criminal charges.
Washington lawyer Kenneth A. Gross, who was with the FEC from 1980 to 1986 and led its enforcement unit, said the Rosen case “was an aberration and unprecedented.”
“If this had been Hillary Jones rather than Hillary Clinton,” he said, “they would not have brought this as a criminal prosecution.”
When Chertoff took over the criminal division, one of his first targets for change was the Public Integrity Section. This unit, established after the Watergate scandal, handled corruption cases involving public officials and others with political ties. It had a reputation as nonpartisan, professional and cautious.
Chertoff demoted career prosecutor Lee J. Radek, who had headed the section for many years, and eventually brought in a New Jersey protege, Noel L. Hillman. “There is a new sheriff in town,” Hillman told a lawyers’ group shortly after taking over.
Some Justice Department officials who worked closely with Hillman and Chertoff in the Bush administration said politics played no role in prosecutorial decisions. Hillman, they said, revitalized the Public Integrity Section.
“The rap on Noel was that he was overly aggressive, not that he was partisan,” said Peter Zeidenberg, the lead prosecutor in the Rosen case, adding he did not necessarily agree with the criticism.
Others, however, said they were concerned that the unit’s traditional insulation from partisan pressures had become frayed under Chertoff and Hillman. Hillman raised eyebrows by seeking -- and eventually getting -- a White House appointment to a federal judgeship.
According to one veteran prosecutor, there was “a new intensity of interest among top officials like Chertoff in what cases were pursued or not pursued.” The prosecutor requested anonymity because he remains in government service and is not authorized to speak to reporters.
Hillman got personally involved in the Rosen case. He had the FBI arrange to secretly tape-record the finance director. Unfortunately for the prosecutors, Rosen repeated his statement that he did not know the true cost of the Hollywood event. The tape was not played for the jury.
Zeidenberg said: “We all realized it would be a tough case. It was in L.A. It involved Hillary Clinton. David Rosen didn’t make any money. Nobody was lining his pockets. . . . But that doesn’t mean it shouldn’t have been brought.”
Rosen now says he’s convinced the case was politically motivated. “They couldn’t get Hillary Clinton, so they came after me. They wanted to squeeze my blood on her shoes,” he said.
Though the Justice Department lost the Rosen case, officials say they went forward only after review by career prosecutors. In any event, they said, Judicial Watch did not originate the case.
Judicial Watch President Fitton disagrees. “They didn’t have a road map to this case until Peter Paul came forward and gave it to them,” he said. “We gave them the canceled checks.”
Justice Department officials emphasized that they prosecuted Republicans as well as Democrats, often using similar charges. However, the GOP- related cases they cited were more clear-cut violations: Lobbyist Jack Abramoff was convicted of conspiracy to pay bribes, and Rep. Randy “Duke” Cunningham of Rancho Santa Fe pleaded guilty to taking cash and expensive gifts in exchange for congressional favors; both are now in prison.
But the Rosen case was one of several targeting Democrats or Democratic appointees that ultimately did not hold up. Others include a Mississippi Supreme Court justice and a congressional candidate from Michigan who were indicted on bribery charges in separate cases and were later acquitted.
The House Judiciary Committee is looking into another case brought by the Bush Justice Department (but not the Public Integrity Section) that targeted an aide to the Democratic governor of Wisconsin. She was convicted for awarding a travel contract to a company, owned by a campaign contributor, that had submitted the lowest bid. But a federal appeals court, calling the prosecution “preposterous,” threw out her conviction in April, and she was freed from prison.