Reining in the Imperial Presidency

Lessons and Recommendations Relating to the Presidency of George W. Bush

John C. Conyers

• Publisher: Skyhorse
• Year: 2009
• Print ISBN: 9781602399303
• eBook ISBN: 9781626369900
• Topic: Politics & International Relations
• Subtopic: American Government
• Index: Politics & International Relations

Through transcripts, memos, and analysis, Representative John C. Conyers, Jr. and the House Judiciary Committee reveal how the Bush administration again and again assumed more power than the Constitution allows, and circumvented the traditional checks and balances of our system. From ignoring laws that forbid torturing, to determining that the president himself—not the courts—can decide the reach of the law, to using creative counselors to recast the statutory law or the Constitution itself, the administration's approach to power was, at its core, little more than a restatement of Richard Nixon's famous rationalization of presidential misdeeds: "When the president does it, that means it's not illegal." Reining in the Imperial Presidency includes forty-seven separate recommendations, including calls for continued committee investigation, a blue ribbon commission to fully investigate administration activities, and independent criminal probes. Conyer writes, "The Constitution has been sorely tested over the last eight years. But... I am confident in our capacity to self-correct. Doing so will require much hard work and diligence, and that effort only continues with the release of this Report. Our work is far from complete."

Section 1 – Politicization of the Department of Justice

I feel a special obligation, maybe a special -- an additional burden coming from the White House to reassure the career people at the department and to reassure the American people that I’m not going to politicize the Department of Justice.⁵³

– Attorney General-designee Alberto Gonzales January 6, 2005

I work for the White House, you work for the White House.⁵⁴

– Attorney General Alberto Gonzales April 21, 2005

One of the most significant issues explored by the 110^th Congress was the politicization of basic government functions that had occurred during the Bush Administration. Concern about this issue arose as early as 2002, when former White House aide John Dilulio complained, “[t]here is no precedent in any modern White House for what is going on in this one: a complete lack of a policy apparatus. What you’ve got is everything, and I mean everything, being run by the political arm. It’s the reign of the Mayberry Machiavellis.”⁵⁵

When Hurricane Katrina struck and the Administration’s deeply inadequate response was left to an unqualified political appointee in charge of the Federal Emergency Management Agency, the gravity of the problem became tragically clear.⁵⁶ Further reports have only heightened concern about the scope and depth of the problem, such as the recent charge by the head of the non-partisan American Association for the Advancement of Science that unqualified political appointees were “burrowing in” to the civil service and taking over career jobs with responsibility for making and administering government science policy: “You’d just like to think people have more respect for the institution of government than to leave wreckage behind with these appointments,” this official charged.⁵⁷ Additionally, the House Committee on Oversight and Government Reform has documented numerous other instances of government action being driven by political considerations, such as an aggressive White House campaign to deploy government resources in support of Republican political candidates and repeated examples of White House and Administration officials overruling policy recommendations of agency career professionals for apparently political reasons.⁵⁸

It was against this backdrop that a series of disturbing reports emerged in early 2007 of federal prosecutors being forced from office in suspicious circumstances.⁵⁹ Enterprising journalists immediately began collecting and analyzing these reports and noted that, in a number of cases the prosecutors who had been forced out were highly regarded; and that, in some cases, the prosecutors were also handling highly sensitive matters, such as political corruption investigations of Administration allies.⁶⁰ The controversy took on further life when one of the removed United States Attorneys, David Iglesias of New Mexico, stated that his removal was “a political fragging, pure and simple.”⁶¹

The Administration’s claims that the removed prosecutors were poor performers also did little to quell the controversy. In very large part, these claims were contradicted by the Department’s formal evaluations of the removed prosecutors which rated their performance as excellent, and in many cases home state lawyers and others officials rose to publicly defend the prosecutors’ reputations.⁶²

When documents surfaced showing that the removals were the result of a lengthy process in which United States Attorneys were ranked based on their loyalty to the President and in which some prosecutors were praised as “loyal Bushies,” the controversy took on yet another dimension. If some United States Attorneys were forced out for taking actions harmful to the Administration’s political interests, what actions had been taken by the “loyal Bushie” prosecutors who were allowed to keep their jobs?⁶³

Concern that politics may have influenced prosecution decisions only mounted when two professors published a study indicating that the Bush Administration was seven times as likely to investigate Democratic officeholders than Republican officeholders.⁶⁴ The issue sharpened when a federal appeals court reversed the politically-sensitive conviction of a Wisconsin state official named Georgia Thompson and within several hours of hearing oral argument ordered Ms. Thompson freed immediately from federal prison.⁶⁵ In the context of the unfolding controversy over the U.S. Attorney removals, many questioned whether Ms. Thompson’s prosecution had been influenced by political concerns (Ms. Thompson was hired in 2001 into the civil service by the state Department of Administration, and had been indicted for allegedly awarding a state contract to a travel agency whose executives had made political contributions to Democratic Governor Jim Doyle), particularly after it was revealed that the Republican United States Attorney handling the case had been on the firing list for a time but was removed soon after he filed this indictment.⁶⁶ When a Republican lawyer from Alabama executed a sworn affidavit asserting that Karl Rove himself had urged the federal prosecution of Democratic Alabama governor Don Siegelman, it was clear that the issue of politically-selective prosecutions required thorough investigation.⁶⁷

In addition to reports regarding the suspicious circumstances surrounding the removal of federal prosecutors, there were also widespread reports concerning the politicization of the Civil Rights Division (CRT) at the Department of Justice. Historically, the CRT had been viewed as the government engine at the forefront of the struggle to ensure equal justice under the law – from spearheading the fight to end school segregation to promoting racial, ethnic, and gender diversity and prosecuting hate crimes. The Division’s image for vigorous law enforcement, fairness, and impartially had been tarnished.

Over the past eight years, the Division has received substantial criticism over charges of politicization in its decision-making and personnel hiring process. Beginning in 2002, the Department came under fire for misusing its authority to ensure redistricting plans that favored Republicans.⁶⁸ Notwithstanding the Department’s assertion that it was committed to fully enforcing civil rights laws, attorneys both in and out of the Department argued that the Civil Rights Division has been less aggressive in bringing discrimination cases.

In particular, staff said the Department eased up on several traditional areas of civil rights enforcement,⁶⁹ such as housing, voting, employment, and disability discrimination. According to a 2006 Boston Globe article, “the kinds of cases the Civil Rights Division is bringing have undergone a shift. The division is bringing fewer voting rights and employment cases involving systematic discrimination against African-Americans...”⁷⁰ Richard Ugleow, a 23-year veteran of the CRT, said the Division’s statutory mandate was conscientiously fulfilled in an even-handed and judicious fashion under both Republican and Democratic Administrations, until the George W. Bush Administration.⁷¹

As criticism mounted over the politicization of enforcement decisions within the Division, experienced civil rights attorneys were driven out of the Department. In 2005, The Washington Post reported that nearly 20 percent of the division’s lawyers had left, in part because of a buyout program that some lawyers believe was aimed at pushing out those who did not share the Administrations’ conservative view on civil rights laws.⁷² Many veteran litigators complained that political appointees had cut them out of hiring and major policy decisions, including approvals of controversial GOP redistricting plans which career staff had concluded discriminated against minority voters.⁷³ A Boston Globe article suggested that the Bush Administration was quietly remaking the Justice Department’s Civil Rights Division by filling the permanent ranks with lawyers who had strong conservative credentials but little experience in civil rights.⁷⁴ Documents obtained by the Globe reveal that only 42 percent of the lawyers hired since 2003, after the Administration changed internal policies to give political appointees more influence in the hiring process, had civil rights experience.⁷⁵ In the two years before the change, 77 percent of those who were hired had civil rights backgrounds.⁷⁶ It is against this backdrop that the Committee commenced a series of hearings to investigate whether political considerations influenced the Department’s civil rights enforcement work and hiring practices.

I. Politicization of the Prosecution Function

A. Hiring and Firing of U.S. Attorneys and other Department Personnel

On March 1, 2007, House Judiciary Committee Chairman John Conyers, Jr. issued the first subpoenas of the newly convened 110^th Congress.⁷⁷ Those subpoenas compelled the public testimony of a group of Bush Administration United States Attorneys who had been forced from office under suspicious circumstances, and ignited a controversy that eventually would engulf the Administration. By the time the initial phase of the Committee’s investigation was complete, the entire leadership of the Department of Justice as well as two key political aides at the White House had resigned. Reportedly, the President had even been compelled to seek the resignation of his closest advisor and confidant, Karl Rove, telling him in church one Sunday in Summer 2007 “there’s too much heat on you.”⁷⁸

The controversy began when reports surfaced around the country of United States Attorneys being forced from office under suspicious circumstances.⁷⁹ Several Members of Congress immediately expressed concern, and Chairman Conyers and along with Courts, the Internet, and Intellectual Property Subcommittee Chairman Berman quickly wrote to Attorney General Alberto Gonzales on January 17, 2007, demanding information about the matter.⁸⁰ Mr. Gonzales testified before the Senate Judiciary Committee on January 18, 2007, that “I would, never, ever make a change in a United States attorney for political reasons or if it would in any way jeopardize an ongoing serious investigation. I just would not do it.”⁸¹ This assurance did not mitigate the significant concern about the firings that had emerged, however.

In February and March 2007, both the House and Senate Judiciary Committees held hearings to explore the reasons for the firings and to address concerns that political considerations may have influenced the Administration’s decisions. Principal Associat...

Table of contents

• Title Page
• Copyright Page
• Table of Contents
• Foreword
• Executive Summary
• Preface: Deconstructing the Imperial Presidency
• Section 1 – Politicization of the Department of Justice
• Section 2 – Assault on Individual Liberty: - Detention, Enhanced Interrogation, Ghosting and Black Sites, Extraordinary Rendition, Warrantless Domestic Surveillance, and National Security and Exigent Letters
• Section 3 – Misuse of Executive Branch Authority
• Section 4 – Retribution Against Critics
• Section 5 – Government in the Shadows: - Executive Privilege, Secrecy, and the Manipulation of Intelligence
• Section 6 – Policy Recommendations
• Endnotes