"A sound-bite factory for Fox News and conspiracy theorists": GOP hypocrisy, wingnut madness and the real story about politicizing the Justice Department

The Lynch hearings -- and the right's Eric Holder rage -- is a good time to remember how Justice looked under Bush

By Paul Rosenberg

Contributing Writer

Published February 7, 2015 5:29PM (EST)

Eric Holder, Sharyl Attkisson       (AP/Molly Riley/J. Scott Applewhite)
Eric Holder, Sharyl Attkisson (AP/Molly Riley/J. Scott Applewhite)

President Obama's new nominee for attorney general, Loretta Lynch, may have breezed through her confirmation hearing, and the right-wing clown car of decidedly non-expert “experts” were certainly pathetic, as Digby wrote here. Sen. Sheldon Whitehouse, D-R.I., was right to call it "a sound-bite factory for Fox News and conspiracy theorists everywhere."

The day after hearing from Lynch herself, the committee heard from Heritage Foundation journalist Sharyl Attkisson, who's latest questionably sourced "bombshell" Benghazi exclusive (yes, she's still churning them out) has just been demolished by Democratic congressman Elijah Cummings, ranking member on the Benghazi Select Committee's in a letter to committee chairman Trey Gowdy. Attkisson is also suing the Department of Justice for $35 million, for what experts say may simply be a matter of a stuck backspace key, but which she claims is government surveillance, because of how dangerously close she is to ... some big bombshell; we can't be sure exactly what that is. How this makes her an “expert witness” on Loretta Lynch has not been explained, even now. (Chris Hayes tried to take her seriously last November, though without much success.)

Then there was Catherine Engelbrecht, the founder of the bogus Republican "voter fraud" group True the Vote. When AG Holder announced his resignation, True the Vote issued a statement in which she was quoted saying, "It is our hope that Mr. Holder's announcement marks an end to the radical, racialist assault on voters' rights across America." However, a real conservative expert in voting rights, Judge Richard Posner of the 7th Circuit Court of Appeals—who approved the first photo ID law in 2008, but has since changed his mind in the light of the evidence (or rather lack thereof)—does not take Engelbrecht seriously. In a recent scathing dissent, Posner wrote, "Some of the 'evidence' of voter impersonation fraud is downright goofy, if not paranoid, such as the nonexistent  buses that according to the 'True the Vote' movement transport foreigners and reservation Indians to polling places."

But focusing too much on the worn-out harebrained content would be a mistake, even setting aside Jeff Sessions own racially dubious past. The Republican's strategy should be clear by now: at the most superficial level, it's about base mobilization, not trying to persuade those in the middle. Whitehouse was right about that much. But this doesn't mean the GOP isn't targeting the middle, and doing it more successfully than Digby might suggest—they're just not doing it directly. At a deeper level, their play is simple: go hard right with no concern for facts or any other standard, and pull the “both sides do it” brain-dead centrist journalists, pundit class and the rest of Washington along with them, so that they do the actual work of moving everyone in the center to the right.

With so many attacks made so continuously, even the reporters who've helped debunk them come to accept the situation as normal. But the bottom line of normal in this instance—the GOP charge that the DOJ under Holder has suddenly become politicized—is precisely the opposite of the truth. It was actually the Bush DOJ that was politicized like no other in modern history, save Nixon's post-Watergate, and Obama's biggest mistake (as in so many other things) was in giving them a pass in hopes of fostering bipartisan cooperation going forward.

It wasn't just Democrats complaining about politicization under Bush, either. The watershed event—though far from the only violation involved—was the U.S. attorneys scandal—an unprecedented set of politically motivatied high-level firings that eventually had politicians of both parties shaking their heads in disbelief. The scandal took some time to decode, but in late February 2007, Salon identified one key aspect—that high-performing U.S. attorneys had been forced out to make way for perceived Bush loyalists. McClatchy played a key role in reporting many of the differently inflected twists and turns, while Josh Marshall of Talking Points Memo, who first raised the alarm widely, was key in drawing attention to the political core of what was happening. As he explained in March 2007, as the outlines were still coming into focus:

The issue here is why these U.S. Attorneys were fired and the fact that the White House intended to replace them with U.S. Attorneys not confirmed by the senate. We now have abundant evidence that they were fired for not sufficiently politicizing their offices, for not indicting enough Democrats on bogus charges or for too aggressively going after Republicans. (Remember, Carol Lam is still the big story here.) We also now know that the top leadership of the Justice Department lied both to the public and to Congress about why the firing took place. As an added bonus we know the whole plan was hatched at the White House with the direct involvement of the president.

That same month, Salon highlighted the role of bogus voter fraud claims in the years leading up to the firings. That story briefly touched on New Mexico, where, “in 2004, U.S. Attorney David Iglesias, one of the two fired U.S. attorneys who allegedly failed to pursue electoral fraud cases, took a pass on an especially dubious prosecution,” but it focused intently on Missouri, where Salon noted, “three different [Bush era] U.S. attorneys have launched investigations into electoral fraud... indicting nine people”—not a very large haul, which was part of the problem. In Missouri, the replacement U.S. attorney—appointed without Senate approval, as was then possible, due to a Patriot Act loophole—was Bradley Schlozman, who had previously supervised the voting section of the Civil Rights Division of the DOJ, which we'll soon see was another hotbed of politicization within the Bush DOJ.

But it wasn't just Democrats and a handful of remaining “good government” Republicans who were upset. By late August, McClatchy's Marisa Taylor reported widespread internal criticism based on extensive interviews with “current and former department officials,” as well as at least one anonymous federal judge. “Charges of cronyism and partisan politicking have sunk the Justice Department's reputation to levels not seen since Watergate and damaged the Bush administration's ability to fight crime, pursue the war on terrorism and achieve its other goals,” Taylor reported in late August 2007. She continued:

"The Justice Department needs to be depoliticized," said Guy Lewis, who oversaw the U.S. attorneys' offices under former Bush Attorney General John Ashcroft. "Loyalty to the president is a wonderful thing, but it can't be the be all and end all."

So, this wasn't just the Democrats attacking Bush, or even just outside Republicans, it was his own people as well.

Yet, as indicated above, the U.S. attorneys scandal was only the most high-profile example of the politicization, which began early on, as Think Progress reported two months later. In 1993, Clinton's attorney general, Janet Reno, had limited White House/Justice Department contacts who could communicate with each other about pending investigations and cases to three people at the DOJ and four people in the White House—a small, tightly controlled circle of top people. But in 2002, Ashcroft raised those numbers dramatically, to 42 at the DOJ and more than 400 at the White House—an open invitation to pervasive politicization. Gonzales more than doubled the White House contact list to almost 900 people in 2006.

So the politicization that Taylor reported on clearly went even deeper than many of her sources were willing to admit. One anonymous federal judge called the tenure of Gonzales “a horrible debacle in a great many ways," and she added:

The department's standing was especially hurt by revelations that Gonzales' aides had screened job applicants based on their political credentials and by allegations that they'd pressured Justice Department lawyers who were overseeing politically sensitive cases, current and former officials said.

But the same sorts of pressures clearly began well before Gonzales took over in 2005, and lifetime staffers had been leaving in frustration—especially from the DOJ's Civil Rights Division, arguably the most active site of politicization in the entire department.

Indeed, in July 2006, Charlie Savage at the Boston Globe reported on a massive shift in civil rights hiring at the Bush DOJ, “filling the permanent ranks with lawyers who have strong conservative credentials but little experience in civil rights,” which is what those jobs actually require.  The rules were changed in the fall of 2002. After 2003, “only 42 percent of the lawyers” had civil rights experience, compared to 77 percent the prior two years.

Looking specifically at hiring in the voting rights, employment litigation and appellate sections, the Globe found, “Hires with traditional civil rights backgrounds -- either civil rights litigators or members of civil rights groups -- have plunged. Only 19 of the 45 lawyers hired since 2003 in those three sections were experienced in civil rights law, and of those, nine gained their experience either by defending employers against discrimination lawsuits or by fighting against race-conscious policies,” meaning that almost half of those with “civil rights” experience came from David Duke's side of the aisle. (Oddly enough, the Bush DOJ did not seem to hire mob lawyers to staff their organized crime task forces.  But they just may have thought about it.)

“Meanwhile, conservative credentials have risen sharply,” Savage reported. “Since 2003 the three sections have hired 11 lawyers who said they were members of the conservative Federalist Society. Seven hires in the three sections are listed as members of the Republican National Lawyers Association, including two who volunteered for Bush-Cheney campaigns.” Just to be clear: The RNLA was created in 1985 to pick up the slack after the RNC was forced to sign a consent decree promising to put an end to its minority voter suppression. (See page 43 in this report.)

“[H]iring is closely overseen by Bush administration political appointees to Justice, effectively turning hundreds of career jobs into politically appointed positions,” Savage noted. By definition, this is is the very essence of politicization. The Republican response was quite telling. On the one hand, Savage reported, “The Bush administration denies that its changes to the hiring procedures have political overtones. Cynthia Magnuson, a Justice Department spokeswoman, said the division had no 'litmus test' for hiring. She insisted that the department hired only 'qualified attorneys.'” In short—who are you going to believe, me or your lying eyes?  On the other hand, other Republicans actually defended politicization:

Other defenders of the Bush administration say there is nothing improper about the winner of a presidential election staffing government positions with like-minded officials. And, they say, the old career staff at the division was partisan in its own way -- an entrenched bureaucracy of liberals who did not support the president's view of civil rights policy.

This might be just a tiny bit more credible if Bush had run openly on a platform of rolling back civil rights protections, including the right to vote, for Latinos, whom he actually courted quite actively, despite the contrary impact of his DOJ policies. In any event, this pro-politicization argument surely does a better job of justifying Obama's DOJ, which has worked hard to preserve broad voter access, in line with his youth- and minority-mobilizing campaigns, than it does justifying Bush's DOJ, when he ran as “a uniter, not a divider,” while his DOJ aggressively strove to keep Latinos and other minorities from voting.

Still, understanding the full policy implications of these personnel shenanigans would take some time to work out. The most comprehensive overview of their impact—published just as the U.S. attorneys scandal caught fire—was the March 2007 report, "The Erosion of Rights: Declining Civil Rights Enforcement Under the Bush Administration,” from the Citizens’ Commission on Civil Rights and the Center for American Progress. As explained in its executive summary:

The 10 essays in this report encapsulate the administration’s failure to enforce civil rights, protect civil liberties and confront long-standing and emerging threats to our nation’s shining virtue: equality of opportunity. The authors of the report, many of them veterans of civil rights enforcement and advocacy, detail the methods employed by the administration to carry out these serious civil rights policy reversals and offer concrete solutions to slow the deterioration of our nation’s civil rights and restore our promise as the land of equal opportunity.

The focus of that report was on policy, but Republican administrations since Nixon had always sought to slow, divert, weaken or diffuse civil rights law enforcement to one degree or another. The telltale differences—lines crossed that had never been crossed before—were brought home to me when I interviewed several longtime CRD staffers for a two-party story for Random Lengths News, looking back at the division's history, and putting the Bush years in context, in sharp contrast to what had gone before. One of those staffers, Robert Kengle, who contributed to "The Erosion of Rights," was a 20-year CRD veteran, former deputy chief of its voting section, who resigned in 2005 due to what he “institutional sabotage” in a statement published by Talking Points Memo, “Why I Left the Civil Rights Division.” Among the main points he cited were the following:

1) I no longer could insulate the line attorneys I supervised from the political appointees.

2) I lost confidence that any litigation I supervised would be resolved based upon the merits rather than partisan factors.

3) I lost confidence that the hiring process would bring in attorneys who placed civil rights enforcement over partisan considerations.

The relationship between political appointees and career civil rights attorneys clearly lay at the heart of the conflicts involved, as Kengle and others helped me understand. Particular clarity came from Brian K. Landsberg, author of "Enforcing Civil Rights," a 1997 book about the CRD and its historical role in the national battle against racial discrimination. Landsberg devoted a whole chapter to the balance of career staff with political appointees, most notably the assistant attorney general for civil rights, a presidential appointee subject to congressional confirmation.

“I talked about this being sort of like a matter of Congress setting up a system of checks and balances. There the political appointees and career people check and balance one another internally, because they bring different things to the table, and the key is individual respect,” Landsberg told me.

“Most of the time I felt the mutual respect was being fully shared. Even when I was working in the Reagan administration. Brad Reynolds, my boss, listened to my views respectfully,” he said. “The fact that he would argue with me was itself a display of respect. He could have just walked over me and replaced me or pushed me out. He didn’t do that.”

Jim Turner, the CRD’s top career lawyer from 1969 to 1994, told me something roughly similar. “Brad Reynolds, he tried to take things apart again [after Carter], not across the board, and still paying lip service to civil rights. But even that pales with respect to the Bush administration,” he said. “We had knock-down, drag-out arguments under Brad. Some we won, some we lost.” But they were out-in-the-open arguments, not backroom intrigue. And the broader political environment simply would not allow a wholesale reversal on civil rights of the sort the Bush administration had in mind.

One distinction drawn for me was that differences in the Reagan era were ideological, but in the Bush era, they were partisan political—which goes to the heart of why the politicization of hiring matters so much. A major Reagan-era controversy I dealt with involved Bob Jones University, a private, fundamentalist college in South Carolina, whose tax-exempt status the IRS had revoked, because of its prohibition of interracial dating—a step back from its earlier total exclusion of blacks. This represented the outer limit of just how far conservative ideology might go at the time—which was quite far, indeed. And yet, it did not ultimately rupture relationships. There were limits on what might be tried.

After two young special assistants to the attorney general wrote a 40-page memo to Reynolds, supporting Bob Jones, he joined their crusade to drop the suit, prompting more than 200 CRD career lawyers to object in a letter to Reynolds. The bad publicity led to a second reversal of direction, and the Supreme Court ended up ruling 8-1 against Bob Jones University in 1983. There were lasting consequences, in part because there was still a bipartisan consensus on racial justice, as I noted:

Two years later, Reynolds’s nomination for promotion to associate attorney general was defeated by a Republican-controlled Senate Judiciary Committee. Arlen Specter (R-Pennsyvania) accused Reynolds of giving misleading testimony, "disregarding the established law," and "elevating [his] own legal judgments over the judgments of the courts."

“The Brad Reynolds confirmation hearing was shortly after I got there. And that experience must have disturbed him. But I think it had a salutory effect.” Kengle recalled. While voting rights cases had been held back before, “Things began to move after those hearings,” he said. “The litigation docket picked up in 1985 and 1986. After I had been there about a year, I went form one litigation assignment to another.”

In contrast to this history, the Bush-era politicization never faced any sort of decisive public reckoning. There were some significant skirmishes, but no head-on, direct confrontation that would have drawn a line in the sand. That's why the voter fraud myth has actually metastasized, and spread throughout the body politic, despite a complete lack of evidence that anything more than a few scattered cases exist (less than the number of people struck by lightning), and considerable evidence that laws purported to stop nonexistent fraud end up blocking hundreds of thousands (perhaps even millions) of legitimate voters from going to the polls.

Which is why you get a cuckoo for Cocoa Puffs voter fraud conspiracist like  Catherine Engelbrecht testifying as an “expert witness” on an attorney general nominee she knows absolutely nothing about.  If the GOP wants to find evidence of politicization, all they have to do is look in the mirror.

By Paul Rosenberg

Paul Rosenberg is a California-based writer/activist, senior editor for Random Lengths News and columnist for Al Jazeera English. Follow him on Twitter at @PaulHRosenberg.

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