On Friday, forty-six “United States attorneys appointed by President Barack Obama [were] asked to resign — and to immediately clean out their offices.” This was normal in one sense and abnormal in another. It’s customary for U.S. Attorneys to resign whenever control of the White House changes. In fact, they can be replaced even when a president is reelected or is replaced by a member of his own party.
For example, after George W. Bush was reelected in 2005, Karl Rove stopped by the White House counsels office to talk with Deputy Counsel David Leitch. He had to settle for leaving a message with Colin Newman, an assistant in the office, who dutifully wrote up a memo for Leitch. It read, in part, “Karl Rove stopped by to ask you (roughly quoting) ‘how we planned to proceed regarding U.S. Attorneys, whether we were going to allow all to stay, request resignations from all and accept only some of them or selectively replace them, etc.'”
That was the seed from which the U.S. Attorneys Scandal grew. Before it was over, it would cause the resignations of the Attorney General, Deputy Attorney General, Acting Associate Attorney General, the chief of staffs for the Attorney General and Deputy Attorney General, the Director of the Executive Office for U.S. Attorneys (and his appointed successor), and the Department of Justice’s White House Liaison Monica Goodling.
I bring this up now, though, to point out that Rove was at least considering asking all the U.S. Attorneys to resign despite the fact that they were all appointed by Bush during his first term. One of the reasons for not replacing them all was provided by Kyle Sampson, the chief of staff to Attorney General Alberto Gonzales. Writing to then-Attorney General John Ashcroft, he observed that it would be “weird to ask them to leave before completing at least a 4-year term.” To White House counsel Harriet Miers, Sampson argued that they should focus on replacing only a few of the prosecutors, and then only if they had replacements ready:
“I am only in favor of executing on a plan to push some USAs out if we really are ready and willing to put in the time necessary to select candidates and get them appointed…It will be counterproductive to DOJ operations if we push USAs out and then don’t have replacements ready to roll immediately.”
This episode demonstrates a few things. For one, it shows that there’s nothing out of the ordinary in replacing U.S. Attorneys en masse at the beginning of a new presidential term. For another, it shows that doing so can be “counterproductive to DOJ operations” if the replacements aren’t identified and ready to be appointed.
A look at the scandal that overwhelmed the Bush administration’s Department of Justice shows one more thing worth considering. Their mistake was to fire only a select few U.S. Attorneys which were easy to connect because they either had refused to pursue phony voter fraud cases or they had been unwilling to use their offices to bring trumped-up charges against Democratic office seekers or they had been pursuing corruption charges against Republicans. As I remember it, Talking Points Memo began to connect the dots on the conspiracy almost immediately, and they helped push the story into the mainstream where it eventually did immense damage.
One obvious lesson is that it’s best to fire everyone rather than to try to execute a selective purge.
That may explain why the Trump administration chose to act on Friday. It’s important to look at a three-day sequence of events.
WEDNESDAY: White House Press Secretary Sean Spicer tells the press that “there is no reason to believe there is any type of investigation [of the president] with respect to the Department of Justice.”
THURSDAY: A senior Justice Department official was quoted in the New York Times saying that “Mr. Spicer had not relied on any information from the department in denying the existence of an investigation targeting the president.”
FRIDAY: 46 U.S. Attorneys were told to resign immediately without any prior notice and without any accompanying list of replacements being submitted to the Senate.
The most controversial of these forced resignations was the one for Preet Bharara whose Southern District of New York includes Trump Tower. It wasn’t just controversial because Bharara could possibly be in the middle of an investigation of the president. It was unexpected because Trump had personally met with Bharara in November and specifically asked him not to resign. For this reason, Bharara initially refused to resign, forcing Trump to fire him outright on Saturday. So, what had changed?
One clue is that Donald Trump tried to reach Bharara by phone on Thursday and was rebuffed on the grounds that communicating directly with the president would violate DOJ ethics laws. That would have indicated to Trump, perhaps, that there was a conflict of interest because he was being investigated.
Of course, the exculpatory explanation would be that Trump was trying to pay Bharara a courtesy by explaining why he was breaking his promise and asking him to resign.
It’s clear that Bharara thinks his investigation was shut down, it’s just not 100% clear whether he means his investigation of Trump or his investigation of New York Governor Andrew Cuomo.
By the way, now I know what the Moreland Commission must have felt like.
— Preet Bharara (@PreetBharara) March 12, 2017
That’s a reference to the Moreland Commission to Investigate Public Corruption which was set up by Cuomo in 2013 and shut down in 2014 when its findings started to land a little too close to home for Cuomo’s tastes. The parallel here could be that the target of an investigation is responsible for firing the investigators. Or, it could be that Cuomo has wiggled off the hook a second time. Perhaps Bharara meant to imply both things.
There’s also reporting from New York magazine’s Gabriel Sherman that Bharara’s firing could be related to protecting Roger Ailes and Fox News, who were both in hot water over their handling of sexual harassment allegations.
…on Saturday Trump oversaw the firing of Preet Bharara, the U.S attorney for the Southern District of Manhattan, whose office is in the middle of a high-profile federal investigation of Fox News. The probe, according to sources, is looking at a number of potential crimes, including whether Fox News executives broke laws by allegedly obtaining journalists’ phone records or committed mail and wire fraud by hiding financial settlements paid to women who accused Roger Ailes of sexual harassment. Sources told me that prosecutors have been offering witnesses immunity to testify before a federal grand jury that’s already been impaneled.
The speculation is fueled by two additional tidbits. One is that Sean Hannity of Fox News challenged Trump to fire all Obama-appointed U.S. Attorneys on the air the day before he actually did so. The second is this:
According to the Times, Trump’s short list to replace Bharara includes Marc Mukasey — who just happens to be former Fox News chief Roger Ailes’s personal lawyer.
The timing of these firings is suspicious, and all the more so because the replacements haven’t been lined up. We’ve seen Trump act impulsively in several instances after seeing things on television or reading about them in right-wing media. Two glaring examples include his accusations of voter fraud and his allegations that President Obama was tapping his phones. This whole thing could be no more complicated than that. Hannity challenged him so he acted.
He has ready excuses, including that it’s his undisputed right to ask for these resignations and that they were wholesale, not targeted to any individuals. The former excuse didn’t save the Bush administration from suffering a major scandal that narrowly avoided prosecution for some of the main actors. In this case, the latter excuse may just be a smokescreen to obscure the true targets.
Trump is supposed to provide evidence that he was illegally surveilled to Congress today. It may be that what he turned up instead is evidence or reasonable suspicion that he was being legally surveilled and/or is still under active investigation. What’s clear is that this wasn’t handled in a way designed to avoid being “counterproductive to DOJ operations.” The question is whether that was an unintended consequence of Trump’s impulsiveness or pretty much the entire point.