Maybe this old Lanterneer is just feeling cranky, at the moment, but it is growing ever more impossible to have any sympathy for any of the people involved in this DOJ mess, let alone, even, a grudging respect.Junior's "compassionate conservatism" has left me feeling terribly uncompassionate.Pity.At DOJ, a Hard Job to FillMcNulty's leaving, but the department's problems aren't going anywhereBy Jason McLure and Emma SchwartzLegal TimesMay 21, 2007 Few in Washington have envied Paul McNulty over the past three months. But with the deputy attorney general’s
resignation last week amid the scandal over the firings of at least eight U.S. attorneys, there’s one person whose position might be even less desirable: McNulty’s yet-to-be-named successor.
“I’d rather trade places with Jose Padilla,” jokes Viet Dinh, a former senior Justice official under then-Attorney General John Ashcroft. Whoever does succeed McNulty in the Justice Department’s No. 2 post may not be facing a lifetime in prison, but he or she is certain to weather more than a few trials of a distinctly Washington variety.
McNulty’s replacement will confront a posse of hostile Democrats in Congress, serious questions over whether Attorney General Alberto Gonzales will remain in place, and a dysfunctional department demoralized by its current leadership. For a White House nearing the end of a second term and suffering from low approval ratings, the drive to find a successor before McNulty departs later this summer will not be easy.
“I think there are really quite a few people who wouldn’t take the job,” says Jamie Gorelick, who herself was deputy attorney general from 1994 to 1997 and is now in private practice at WilmerHale. “I think it’s a greatly devalued position right now in the eyes of many people.”
Regardless, McNulty’s resignation brings change. For the department, it could also mark a first step toward rehabilitating its beleaguered image and boosting morale. For Gonzales, it only heightens the pressure for his own resignation, but for McNulty, the departure is a lamentable capstone to what had been a highly successful government career as a congressional aide and prominent Justice Department official.
There is also a certain irony in the circumstances that have led to his departure, which both the White House and McNulty’s successor would do well to keep in mind in the coming months. McNulty easily won confirmation in February 2006, in large part because of an enormous store of political capital he’d amassed during his 11 years on Capitol Hill. A loyal Republican, McNulty nonetheless developed a great deal of credibility with Democrats who viewed him as an amiable and honest broker willing to listen. In the five years prior to becoming deputy attorney general, McNulty won plaudits as an effective leader in the U.S. Attorney’s Office in Alexandria, Va.
Yet the scandal that presaged McNulty’s resignation was fueled by a massive leadership failure and a near-total meltdown in the department’s relationship with Congress. “It is ironic that areas in which he does excel and which he has enormous experience and developed a very sophisticated savvy, that these would be the areas, ultimately, that produced this controversy and tumult that has led him and the department to where it is,” says Charles Cooper of Washington, D.C.’s Cooper & Kirk, a former senior Justice official in the Reagan administration. Nonetheless, he adds, “it’s just not possible to dislike Paul McNulty.”
A DIFFERENT DEPUTY The first order of business for any successor will be to repair Justice’s shaky standing on the Hill — perhaps most importantly with the Senate Judiciary Committee.
Its chairman, Sen. Patrick Leahy (D-Vt.), is likely to use confirmation proceedings as leverage to extract more documents about the firings from the Justice Department and White House. Yet what’s needed to pacify Congress, say current and former Justice officials and congressional aides, isn’t a nominee practiced in the art of political jujitsu but someone with a deep background at Justice itself — preferably as a U.S. attorney or line prosecutor.
“They’d obviously want someone of experience and integrity to make the argument that a quick and nonadversarial confirmation is in their interest,” says Michael Carvin, a former senior Justice official who worked for the Bush campaign during the disputed 2000 election and is now a partner at Jones Day. The most credible pick would likely be a Justice Department insider with no fingerprints on the current scandal who could be viewed as independent of partisan politics.
Among the names that have been floated since McNulty announced he was stepping down are Kenneth Wainstein, the head of the National Security Division and the former U.S attorney in D.C.; Stuart Levey, a former top Justice official now at the Treasury Department; Michael Garcia, the U.S. attorney for the Southern District of New York; Charles Rosenberg, the U.S. attorney in the Eastern District of Virginia; Susan Brooks, the U.S. attorney in the Southern District of Indiana; and Kevin O’Connor, the U.S. attorney in Connecticut, who is also serving as Gonzales’ chief of staff.
Any replacement likely won’t be confirmed quickly, meaning that if McNulty departs in late summer, as he’s indicated, the Justice Department will need to name an acting deputy.
Historically, such replacements have been picked from within the ranks of Justice’s current Senate-confirmed officials. The Bush administration could simply avoid a bruising Senate confirmation process by appointing an acting replacement to fill out the remainder of the Bush administration — something the Clinton White House did with Bill Lann Lee in the Civil Rights Division.
Bush could also install someone through a recess appointment while Congress is out of session this summer. But an acting or recess appointee might be seen as weaker and less independent. It would also be viewed as a snub of the Democratic-led Congress, given that bypassing the Senate on U.S. attorney picks was a major impetus for the current scandal. Either way, a new deputy attorney general in a lame-duck administration will also have to accept that he or she will be focused mostly on restoring the department’s damaged reputation with Congress, the public, and its rank and file, and will have limited flexibility to introduce new programs.
As things currently stand, a new deputy would also have to contend with uncertainty over who the department’s other senior leaders will be. As the Senate moves towards a no-confidence vote on the attorney general, Gonzales’ tenure is hardly assured. The department’s No. 3 official, Acting Associate Attorney General William Mercer, is unlikely to win Senate confirmation anytime soon, given his own role in the firings.
The departure of McNulty also means that those in his inner circle — such as principal deputy William Moschella, chief of staff Michael Elston, and senior adviser Frank Shults — are likely to follow.
GONE BUT NOT FORGOTTEN Nor does it appear that by resigning, McNulty will extricate himself from the scandal. That point was driven home on May 15, less than a day after McNulty submitted his resignation letter, when Gonzales shifted his own tactics in responding to questions about the scandal by singling out McNulty as the Justice official most responsible for the firings. “At the end of the day the recommendation reflected the views of the deputy attorney general,” Gonzales told members of the National Press Club in a breakfast address televised on C-SPAN. “He signed off on the names.”
McNulty’s defenders point out that documents released by the Justice Department show he was largely uninvolved in the early phases of the firing plan, which documents and testimony have shown to have been primarily directed by Monica Goodling, the department’s White House liaison, and former Gonzales chief of staff D. Kyle Sampson. But, as Gonzales is now eagerly pointing out, McNulty is the direct supervisor of U.S. attorneys, and McNulty approved the final plan — even though e-mails released by Justice show he had no idea about the job performance of at least one of those chosen to be fired.
McNulty also bears a large share of responsibility for the Justice Department’s disastrous handling of the fallout from the firings. Most fatal was McNulty’s now-infamous assertion that the seven prosecutors sacked on Dec. 7 had been asked to go for “performance-related” reasons.
That statement, at a Feb. 6 hearing before a Senate Judiciary subcommittee, was directly contradicted in most of the cases by the Justice Department’s own internal performance reviews. It also spurred most of the fired prosecutors to publicly defend themselves — four of them alleged that McNulty’s chief of staff, Elston, had attempted to discourage them from speaking out. Three of the fired prosecutors said they were offered a quid pro quo for their silence or threatened with retaliation.
The attack on the Bush administration’s own appointees proved a tipping point and led to the erosion of support for Justice’s leadership among Republicans. “I found it incredibly disingenuous of him to go up and slander these good people,” says Mark Corallo, who was a spokesman for then-Attorney General John Ashcroft and has emerged as an outspoken critic of McNulty.
Indeed, McNulty’s testimony angered three key constituencies in the scandal: the attorney general, Congress, and the fired U.S. attorneys. Gonzales, it would later emerge, was upset that McNulty had essentially disclosed the involvement of the White House in the firing of H.E. “Bud” Cummins III, the U.S. attorney in Arkansas. And members of Congress would note that, in testifying that Cummins had been fired to make way for an acolyte of White House political adviser Karl Rove, McNulty was contradicting an earlier assertion by Gonzales that the firings hadn’t been motivated by “political reasons.”
McNulty later acknowledged to congressional investigators that his testimony had been misleading. But he has placed the blame elsewhere: on Goodling, who, he told congressional investigators, provided inaccurate information to him when he was preparing to testify before the Senate in February. With Goodling’s scheduled appearance before the House Judiciary Committee on May 23 (for which she has been given immunity), McNulty could find the scandal hard to put behind him. Goodling’s version of events may contradict McNulty’s statements and spur further questions (or appearances) on the Hill.
The judiciary committees are also likely to try to exploit what looks to be an ever-widening rift between McNulty and Gonzales as well. McNulty’s stated reason for quitting was the “financial realities of college-age children.” Though few believe that to be the only motivation, his personal finances reflect his career in government service. As of 2005, McNulty, 49, had just $57,000 in savings and owed more than $500,000 for his house in Fairfax Station, Va. It’s unclear how significant a hurdle the controversy will present as McNulty searches for a job in the private sector. Some law firms and major corporations may want to steer clear of anyone connected to the scandal. What’s more, McNulty lacks any real trial experience.
But, says William Barr, general counsel of Verizon Communications Inc., McNulty has talents that make him eminently employable. McNulty’s more than two decades inside the Beltway (which began in the Democratic Party) have included stints crafting crime policy on the House Judiciary Committee, formulating Justice Department policy, running the transition team for the Bush administration in Justice, and leading the U.S. Attorney’s Office in the Eastern District of Virginia. There, he oversaw the prosecution of “American Taliban” John Walker Lindh and the largely bungled effort to win a death sentence for Zacarias Moussaoui. If anyone would know about his prospects, it’s Barr.
When Barr left his post as attorney general in 1992, he brought his spokesman, McNulty, with him into the firm then known as Shaw, Pittman, Potts & Trowbridge. “He has a rare combination of skills,” Barr says. “Very intelligent. Very articulate. He had good judgment and understood the political process.” In the short term, what McNulty may want more than anything is a piece of home. For him, that’s Grove City College, a small Christian school in western Pennsylvania. Both McNulty and his wife, Brenda, are alumni, and McNulty sits on the board of directors. Among this year’s 550 graduates is their daughter, Katy, a history major.
Last weekend, McNulty was scheduled to give the school’s commencement address, titled “The Essence of Greatness.” That’s a quality the Bush administration will be fortunate to find in his successor.
(In accordance with Title 17 U.S.C. Section 107, this material is distributed without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes. The Lantern has no affiliation whatsoever with the originator of this article nor is The Lantern endorsed or sponsored by the originator.)
....And The Truth Shall Set Us Free
