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Politicizing Justice 

Attorney General Alberto Gonzales may have heard of Robert H. Jackson, his predecessor in the job by 65 years, but he clearly never read a one of the great jurist’s prophetic words.

If he had, Gonzales might have been spared the embarrassment and the country the sorrow over the revelations of his politicization of the Justice Department and the whole prosecutorial arm of the U.S. government. In cahoots with the White House political office, Gonzales dumped eight federal district attorneys after the disastrous 2006 elections, including our own Bud Cummins, and replaced them with men with a surer compass for where the bad guys are: in the other party.

The fired DAs, stalwart Republicans every one, had been too hard on Republican crooks or else not fast enough on the draw with errant Democrats. So they were replaced by men like Tim Griffin, the nastily partisan lawyer whom the White House wanted ensconced in the Arkansas job for the next election.

Jackson, who later was a Supreme Court justice and the chief prosecutor of the Nazis at the Nuremberg war trials, made a famous speech about the job of the prosecutor to the assembled U.S. attorneys in Washington after Roosevelt made him attorney general. He warned of the monstrous power of the federal government that they wielded and urged them to use it dispassionately and justly — and with absolutely no political favor.

The federal prosecutor, he said, is barred from engaging in political activities and they should use the Hatch Act as a protection against demands that they engage in vendettas for their party or against political foes. There is a reason, he said, that DAs are appointed by the president and subjected to confirmation by the Senate: an expression of confidence in their character by both branches would free them from partisan service.

Griffin and the others, of course, were appointed under a hidden provision in the Patriot Act that lets them serve without review by the Senate.

Jackson delivered the famous lines that warned of prosecutors like Kenneth Starr who were not looking for serious crimes but targeting individuals and trying to find some technical violation of a statute by his quarry. His words apply to all the partisan Bush prosecutors, too.

“It is in this realm — in which the prosecutor picks some person whom he dislikes or desires to embarrass, or selects some group or unpopular persons and then looks for an offense, that the greatest danger of abuse of prosecuting power lies. It is here that law enforcement becomes personal, and the real crime becomes that of being unpopular with the predominant or governing group, being attached to the wrong political views ... ”

Jackson’s lofty ideas seem so naïve and impractical now. What is the presidential appointment power over judges and prosecutors for if it is not to give him and his party a leg up on the enemy? That is how it has been since 2001.

Two distinguished communications professors surveyed 375 federal prosecutions of elected officials by the Republican district attorneys from 2001 through this December. Democratic officials were seven times more likely to be investigated than Republicans and five times more likely to be prosecuted. Of those indicted, 79.5 percent were Democratic officials, 17.9 percent were Republicans and 2.7 percent were independents. Bud Cummins accounted for two: a couple of Pine Bluff aldermen, both Democrats.

Republican defenders imply that, whoever held power, it was always that way. But that is not true. Take Arkansas. The first Bush Justice Department, in 1992, pressured the Republican DA in Little Rock, Chuck Banks, to publicly open an investigation of Clinton before the fall election but he refused. His successor, Paula Casey, appointed by Clinton, went after Democrats, including old supporters of the president, with a vengeance. She convicted a prominent Democratic legislator of fraud in transactions with the state prison and prosecuted a whole band of Democratic state senators and their allies, notably Nick Wilson, handing the Republicans their best political chips in 30 years.

Would Tim Griffin do that to Republicans? (When the Justice Department agreed to send the new DAs to the Senate for confirmation Griffin said he wouldn’t answer questions so his name will not be submitted. But he will continue to serve.)

You make a guess. As deputy director of research for the Republican National Committee in 2000 and as the director in 2004, he ran voter operations in key states like Florida. He is accused of running a campaign to suppress the votes in communities with large Democratic turnouts. He produced what were called “caging” lists — lists of blacks, Hispanics, soldiers, people in homeless shelters who were registered to vote. They were sent letters marked “do not forward” and when they were returned Griffin’s people had their registrations canceled or their ballots challenged and put aside when they tried to vote. Broad racial targeting like that is a violation of the federal Voting Rights Act.

No one would have found out but Griffin sent memos to the Bush campaign. But he made the mistake of sending some to the wrong domain: @GeorgeWBush.org, a web site run by a Bush gadfly, rather than to the real one, @GeorgeWBush.com. The prankster passed them along to the British Broadcasting Corp.

Griffin says it is “ridiculous” that he suppressed votes, but he won’t talk about it. If Florida had a fearless DA he would have had to in 2004.

If you serve at the pleasure of George Bush you do not ask yourself, as Robert Jackson suggested, whether at the end of your service you will have fulfilled humanity’s aspirations to do justice without favor. That would be the wrong question.

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