Uh, hello - Anybody home? Are the watchdogs sleeping? Because Bush's order is not only unethical, it violates DOJ rules!
From Rick Hasen at ElectionLawBlog:
“Roll Call offers this important report, which begins: "President Bush is asking the Justice Department to look into whether 200,000 Buckeye State poll-goers must use provisional ballots on Election Day because their names do not match state databases." Wow. Here is what I said earlier this week: ‘The idea that the DOJ would get involved in the Ohio election now to force Sec. Brunner to produce the mismatch list on voter fraud grounds seems remote. The political uproar would be deafening.’”
As Alan Boswell of Election Protection notes, where is the political uproar??!!
Politicized voter fraud investigations were at the center of the U.S. Attorney scandal that led to the resignation of Alberto Gonzales. Nevertheless, the DOJ has announced a series of investigations – in multiple states - into voting fraud allegations. These unusually aggressive investigations raise serious questions about whether DOJ is engaged in politically-motivated activities once again, violating both their own rules and Michael Mukasey’s Senate hearing promises of election impartiality.
These investigations are counter to DOJ’s own rules and to Attorney General Mukasey’s testimony before the Senate Committee on the Judiciary on July 9, 2008. These facts, along with the climate of the election and the US attorney scandal raise important questions about the timing of these investigations; investigations that are unlikely to result in prosecution in the next 10 days.
Responsibility of US Attorneys
On voting and election issues, U.S. Attorneys have a dual responsibility in protecting civil rights and pursuing criminal offenses. Long-established guidelines dictate this delicate balance to ensure that the Department’s formidable powers are not misused, in an attempt to influence the outcomes of elections.
On December 7, 2006, the White House forced seven U.S. Attorneys to resign. The inability of then-Attorney General Alberto Gonzales to explain this purge led directly to his resignation. The September 2008 report by Department of Justice Inspector General Glenn Fine documented that several of the purged U.S. Attorneys earlier had been criticized by Republican members of Congress, who complained that their allegations of voter fraud had not been pursued to their satisfaction.
In 2007, after the firings scandal was reported, the Department of Justice published a new edition of its rules for handling election crime investigations. One of the bedrock principles in this revised manual, as well as in earlier versions of the manual, is that the Department’s investigations must avoid influencing election outcomes. General Mukasey testified to this before the Senate Judiciary Committee on July 9, 2008.
With just ten days remaining before the election, there are multiple reports that US Attorneys and the FBI are engaging in election-related investigations in several states, including presidential battleground states. These investigations - and the publicity surrounding them - conflict with the Department of Justice’s own rules and General Mukasey’s Congressional testimony.
Little more than two weeks out from Election Day, there are multiple reports of active FBI investigations into alleged voter fraud in several states, many of them pivotal to the election:
· On October 7, state agents raided the offices of ACORN in Las Vegas, Nevada with press coverage citing the FBI and U.S. Attorney’s Office providing information for the investigation.
· On October 16, an Associated Press report receiving disclosed that two anonymous “senior law enforcement official[s]” had confirmed the existence of an FBI investigation into ACORN’s activities in “several states” and “around the nation.”
· New Mexico – On October 10, FBI agents met with employees of the Bernalillo County Clerk’s Office to discuss the status of about 1,400 voter registrations allegedly suspected to be fraudulent.
· West Virginia – After finding and reporting what she suspected to be several hundred invalid voter registrations in late September, Secretary of State Kathy Ireland asked authorities to investigate. As of October 22, she reported to the Associated Press that FBI and US Postal Inspectors' investigations were ongoing.
Violating DOJ’s own rules
DOJ’s 2007 guidelines state its policy on the timing of criminal investigations related to elections and voting. Central to this policy is recognition that investigations themselves may impact the outcome of elections. According to its own manual the general policy of the DOJ is “Prosecution, Not Intervention.” The following excerpts are from the Federal Prosecution of Election Offenses, Seventh Edition:
· “Because the federal prosecutor’s function in the area of election fraud is not primarily preventative, any criminal investigation by the Department must be conducted in a way that minimizes the likelihood that the investigation itself may become a factor in the election.”
· “The mere fact that a criminal investigation is being conducted may impact upon the adjudication of election litigation and contests in state courts…Accordingly, it is the general policy of the Department not to conduct overt investigations, including interviews with individual voters, until after the outcome of the election allegedly affected by the fraud is certified.
· “…deterrence (of fraud) is achieved by public awareness of the Department’s prosecutive interest in, and prosecution of, election fraud – not through interference with the process itself.”
The Attorney General's promises
In testimony July 9 before the Senate Committee on the Judiciary, U.S. Attorney General Michael Mukasey asserted these principles:
· “I repeated the message that politics must play no role in the decisions of investigators or prosecutors as to any investigations or criminal charges; that law enforcement officers and prosecutors may never select the timing of investigative steps or criminal charges for the purpose of affecting any election and that we must not do anything for the purpose of giving an advantage or disadvantage to any candidate or political party. Those principles have even more weight in decisions concerning ballot access and voter integrity, and I am confident that all Department employees will follow them.”
Broken promises and echoes of the Gonzales scandal
David Iglesias of New Mexico was one of seven U.S. Attorneys forced to resign on December 7, 2006. Although non-cooperation by White House officials has hampered a full investigation, DOJ Inspector General Glenn Fine established a direct connection between political dissatisfaction with Iglesias’s prosecutorial decisions on voter fraud cases and his dismissal. Below are excerpts from Fine’s Investigation into the Removal of Nine U.S. Attorneys in 2006:
· “The evidence we uncovered in our investigation demonstrated that the real reason for Iglesias’s removal were the complaints from New Mexico Republican politicians and party activists about how Iglesias handled voter fraud and public corruption cases in the state.”
· “We found that Iglesias’s approach to these complaints received recognition from within the Department as an example of how to handle voter fraud investigations. In addition, the Chief of the Public Integrity Section’s Election Crimes Branch, Craig Donsanto, told us that he thought Iglesias pursued voter fraud cases vigorously and fairly, and that he had no complaints about Iglesias’s office’s attention to those matters.”
· “Because of complaints by political officials who had a political interest in the outcome of these voter fraud and public corruption cases, the Department removed Iglesias, an individual who had previously been viewed as a strong U.S. attorney. We believe that these actions by Department officials were a troubling dereliction of their responsibility to protect the integrity and independence of prosecutorial decisions by the Department.”
General Mukasey, a former federal judge, swore to restore DOJ’s tarnished reputation and to maintain impartiality in law enforcement. Those commitments and DOJ’s stated policy of “minimiz[ing] the likelihood that the investigation itself may become a factor in the election” are now conflicting with the Department’s ongoing election-eve investigations – featuring anonymous leaks attributed to senior law enforcement officials. According to the non-partisan group Election Protection, we may be seeing the worst failures of the Gonzales Justice Department repeated.
Sources: Election Protection, Associated Press, ElectionLawBlog, Roll Call, Glenn Fine's Investigation into the Removal of Nine US Attorneys in 2006 and various media outlets.