From 2001 to 2006, I was one of those ninety-three attorneys, appointed to the Eastern District of Arkansas. Much of the work I did couldn’t be discussed publicly, for legal or ethical reasons. When I did speak to the media, however, I always made sure to be precise and accurate. Credibility is the currency of a federal prosecutor who represents the government. Former Deputy Attorney General Jim Comey often reminded my colleagues and me that U.S. attorneys are immediately assumed to be crediblenot because of who they are but because of whom they represent, the United States of America. Credibility is a formidable weapon, and those granted it have a solemn responsibility to preserve it. That means telling the truth.
In 2006, the Department of Justice asked for the resignations of nine U.S. attorneys who had been appointed by President George W. Bush. I was among them. No president had ever fired his own appointees in such a manner, and a scandal was born when Congress started asking questions and getting fishy answers from the DOJ. Many months of lies ensued. Some of the dubious statements, such as those of former Attorney General Alberto Gonzales, were made during congressional testimony. Others came in the form of public statements made on behalf of the department. Today, most of those involved in the deception have resigned.
Most, but not all. One player who remains is a DOJ Office of Public Affairs spokesperson named Brian Roehrkasse, a Bush campaign worker in 2000 who went on to be a spokesperson for the Department of Transportation and for the Department of Homeland Security before moving over to the DOJ in 2005. Roehrkasse did more than perhaps any other DOJ official to disseminate the avalanche of untruths. A number of reporters have complained to me in private about having been deceived by him. But he never resigned. In fact, he was promoted by Gonzales in August to be the director of the DOJ’s Office of Public Affairs.
I believe deeply in the Department of Justice. Serving in the DOJ was the pinnacle of my professional career, and I will be forever indebted to those who helped put me there, including President Bush. But the department’s reputation can’t be restored if its chief spokesperson isn’t credible. Out of dozens of examples, I’ve chosen five, ordered chronologically, that I hope will illustrate the problem. You’ll find no bombshell (and some are complex, so bear with me), but what should become clear from them is that they are statements fundamentally intended to mislead.
1. The Maternity Dodge. I am perhaps unique among the fired U.S. attorneys in knowing the truth about why I was fired. It was to make room for an aide to Karl Rove named Tim Griffin. (I know this because then Deputy Attorney General Paul McNulty made it clear in congressional testimony, and subsequent e-mail disclosures confirmed it.) Tim Griffin took over from me in December 2006, and his arrival attracted scrutiny for two reasons. The first was that he had been appointed under a new and virtually unknown legislative provision in which a U.S. attorney could skip Senate confirmation. The second was that his appointment went against a norm of having the first assistant U.S. attorney of an office serve as interim U.S. attorney until a presidentially appointed and Senate-confirmed replacement can report for service. So why hadn’t Jane Duke, the first assistant in my office, taken over from me until Griffin could be confirmed? That was the question journalists put to Brian Roehrkasse at the DOJ. His answer: “The first assistant is on maternity leave.”
Many folks in Arkansas were incredulous at this explanation, particularly those close to Duke or the office. We’d known for more than six months that Griffin was going to take over for me, and the original due date of Duke’s pregnancy fell well after the date of my ultimate resignation. In other words, if the DOJ had ever had any intention of installing Duke as an interim attorney, it could have made plans to do so. It was true that Duke was on maternity leave at the time, but this was only because she’d gone in for an emergency delivery a few days earlier, two months prematurely. Roehrkasse knew that only my colleagues and I would understand why his statement was so misleading. Apparently he was counting on our “loyal” silence.
2. The “Good Faith” Effort. Once it became clear that several U.S. attorneys had been fired, members of Congress became concerned that the White House was trying to circumvent the confirmation process. Tim Griffin, after all, had been appointed in a manner that bypassed congressional advice and consent. In response to Senate accusations of bad faith, it was Brian Roehrkasse who came out with an official statement meant to allay such worries. “In every case, it is a goal of this administration to have a U.S. attorney that is confirmed by the Senate,” he said. “It is wrong for a member of Congress to believe that this is in any way an attempt to circumvent the confirmation process.”
Except that, in this instance, the Democrats in Congress had it right. After internal DOJ e-mails were subpoenaed, we learned that Gonzalez’s chief of staff, D. Kyle Sampson, had authored an e-mail about precisely how to execute an end run around senators in the case of Tim Griffin. Sampson wrote to White House and DOJ colleagues:
It’s possible that Roehrkasse didn’t know about Sampson’s game plan at the time he made his statement, but he never subsequently corrected the record.
3. The Disappearing Denial. Several weeks after I resigned and just after I had been quoted expressing concern about the allegations against my colleagues, I received an unpleasant phone call from Michael Elston, chief of staff to Deputy Attorney General Paul McNulty. During our conversation, Elston warned that if Ior other fired colleaguescontinued to respond to media inquiries about the firings, the DOJ might have to roll out more damaging allegations in the press. In March, McClatchy Newspapers learned about Elston’s call to me and ran a piece about it in which they spoke to two of the other fired attorneys anonymously. Brian Roehrkasse criticized McClatchy for running the piece, saying, “It is unfortunate that the press would choose to run an allegation from an anonymous source from a conversation that never took place.”
The problem is that it did take place. In spite of Roehrkasse’s condemnation of McClatchy, the story was exactly accurate, and we proved it. In fact, at least three of us had received similar threatening calls, and Elston himself didn’t even bother to deny having spoken to us, saying instead that he was “shocked and baffled” over what he said had been a misunderstanding. Roehrkasse, undaunted, then found a new spin on the story. “A private and collegial conversation between Mike Elston and Bud Cummins is now somehow being twisted into a perceived threat by former disgruntled employees grandstanding before Congress,” he told journalists. This was an impressive mix of untruth and affront. First, the public was evidently supposed to forget that the conversation “never took place.” Then it was supposed to believe it did take place but was entirely collegial. Finally, the public was to suspect the fired attorneys of “grandstanding before Congress,” even though each of the U.S. attorneys had turned down numerous previous invitations to testify. As Roehrkasse well knew, we were talking to Congress reluctantly, and only because we’d been subpoenaed.
4. Spinning the Post. In March 2007, the Washington Post ran a story that pleased senior officials in the Justice Department. It began as follows:
This was the story that the DOJ wanted to sell, but the story soon unraveled. For one thing, subsequent DOJ disclosures revealed that the list had been initiated long before “last fall,” with names being added or subtracted right up to the last minute. For another, while it was supposedly senior Justice Department officials who had identified prosecutors they believed were underperforming, not one of the officials under oath would admit to placing any of the names on the firing list. Finally, not a single person within the DOJ who was consulted about the list would have been in a position to evaluate the performance of the U.S. attorneys who were fired. The seemingly reasonable explanation reported in the Post story was, bluntly put, a load of bull.
So who within the DOJ had caused such deceptive claims to become the basis for the Post story? Let the answer come from an e-mail that Kyle Sampson (chief of staff to the attorney general) sent to Brian Roehrkasse at the time: “Great work Brian. Kudos to you and the DAG [Deputy Attorney General Paul McNulty].”
5. The “Oops” Denial. Last April, Alberto Gonzales told the Senate that Seattle U.S. Attorney John McKay had been fired because of recent disputes over an information-sharing system. A few weeks later, however, it emerged that McKay had been recommended for removal as early as March 2005. Why had the DOJ neglected to release a document showing Gonzales’s claims to have been false? Because of an “inadvertent mistake,” explained Brian Roehrkasse. A suspiciously lucky inadvertent mistake, he might have added.
Now, I don’t have any way of knowing how Brian Roehrkasse came to make so many dubious or misleading statements. I’ve never met the man or communicated with him directly. For all I know, his superiors were writing them, and he was simply reading them. But once you realize you are being repeatedly marched out to say untrue things, integrity dictates that you push back or resign before you do it again. Fool me twice, shame on you. Fool me over a dozen times, I’m a willing liar.
When I became a U.S. attorney and the government issued me DOJ credentials, I used my institutional credibility to my advantage frequently. If I made a factual representation to a judge, he usually accepted it. If I told reporters I had to keep quiet about a case for ethical reasons and public safety, they respected my silence. I was sensitive never to abuse this power. Trust should never be taken for grantedby anybody.
Here’s another thing: We are at war. There are a great number of relevant and legitimate legal debates about executive power generallyabout topics like the terrorist surveillance program, torture, and the legal status of enemy combatants. Unlike a typical Washington Monthly reader, I happen to agree with President Bush on most of these issues. The executive branch, from the president down to the investigating agent on the street, should have as many constitutional tools to protect the security of the nation as possible. And it isn’t smart to debate all of the issues that face us out in the open in front of our enemies. Some issues need to be analyzed more privately. In sum, our government needs a formidable range of powers in order to investigate and combat terrorism properly.
The public, however, will never grant it such powers if the government and its agencies lack credibility. Congress has to believe the Justice Department when it makes representations about legalities. There can’t be doubts.
Unfortunately, doubts are all that someone like Brian Roehrkasse can offer. The Department of Justice has gotten a fresh start with a new attorney general and new senior officials. But how can the public trust any agency with a spokesperson who thinks distorting and deceiving in order to satisfy his bosses is part of the job? If Attorney General Michael Mukasey wants to repair his agency, at the top of his list should be finding the DOJ a trustworthy spokesperson. That means telling Brian Roehrkasse to find a position more suited to his abilities. Hollywood, I suspect, awaits him.