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Docs Show DoJ Brainstorm on Firing Justifications
Among the documents last night are some showing that the "performance related" reasons for firing eight prosecutors were the result of an ongoing collobaration at Justice. In other words, the officials appear to have brainstormed on the reasons they had fired the eight.
This document (the date's unclear, but it was clearly done after the firings), for instance, shows a list of the fired prosecutors with a "Leadership Assessment" column laying out the supposed problems with the prosecutors' performance. A Justice Department official made handwritten notes on the document, for instance adding to U.S. Attorney David Iglesias' deficiencies (a scant two bullet points) two items: "under-performing generally" and "lackluster manager." The official also added "use of time management" to San Diego U.S. Attorney Carol Lam's performance woes.
Here's just one demonstration of the shifting rationale for the firings.
On the list of deficiencies for Nevada's Daniel Bogden, you can see a lot of writing in and crossing out going on. One of the bullet points (written in and then crossed out) is "Resistance to obscenity prosecutions." Now, as Salon detailed yesterday, that's a bogus charge. But that didn't stop them from using it. When Sen. John Ensign (R-NV), who had nominated Bogden, inquired as to the reason for Bogden's firing, he was told it had to do with Bogden being insufficiently aggressive on "adult obscenity cases." But when Justice Department official William Moschella testifed before Congress in March, he said that there wasn't a "particular" reason for Bogden's firing, but "given the importance of [Bogden's] district," the department felt they needed "renewed energy, renewed vigor" in that office in order to "take it to the next level."
Another document appears to show a set of talking points for the reasons behind the firing of each prosecutor.
I could spend some time going blow by blow showing why most of the reasons cited for the firings are bogus (as I've done before), but for now, I'll just make an overall point. Remember that all six of the prosecutors who testified under oath (all of them received positive job performance reviews) were surprised by the reasons cited for their firings. They were never told that they were underperforming, or bucking administration policies -- more than that, most of them didn't even have a clue. They were just fired and warned not to make much noise about it.
Note: Thanks to TPM Reader tes for pointing this out in the comments.
Comments (130)
Bearpaw wrote on March 20, 2007 12:28 PM:Boy this is classic, right out of corporate America. Fire them, then come up with a reason, because your real reason doesn't look good.
Brooklynite wrote on March 20, 2007 12:31 PM:Ahh, the CEO presidency!
But which CEO? Dennis Kozlowski . . . Chainsaw Al Dunlap . . . Ken Lay . . . Frank Carlucci . . . etc.
jill wrote on March 20, 2007 12:35 PM:This is how they do everything. Remember Wolfowitz saying that the WMD rationale for going to war with Iraq was given b/c it could easily be understood by the public? They fix the facts around the policy and they brainstorm for credible reasons or excuses. The same MO for the Iraq war and global warming and now the USAs. I'm sure it goes on in every aspect and every department.
harpodog wrote on March 20, 2007 12:36 PM:Another truly remarkable point in this whole affair is the notion of performance ever being afforded any merit in an administration that is chock-a-block with incompetence. This is all so much a false canard. Why doesn't the media ever pick up on and point out the absurdity of these folks giving a rat's ass to performance and quality having any importance whatsoever? All you have to do is look at the top spot.
JEP (John Edward Patterson) wrote on March 20, 2007 12:57 PM:OBSCENITY TASK FORCE?
I thought the porn industry was bankrolling the Republicans. Was that a misconception? Or is this just like "the wife sent him" notes from Cheney to Irving, not really a question, but really just a talking point thrown out there, to trash them with?
J. Thomason wrote on March 20, 2007 12:59 PM:The legal term is "pretext."
owenz wrote on March 20, 2007 1:01 PM:We have lived through the Republican era of Delay, Abramoff, and Cunningham. And yet the Bush Justice Department has prosecuted Democrats at a 7-to-1 ratio over Republicans since 2000. Is it really so hard to figure out what the Republican "loyalty" test was all about?
Bottom line: you only get a 7-to-1 ratio when "80-85 percent" of US Attorneys are "loyal Bushies."
joejoejoe wrote on March 20, 2007 1:04 PM:2-3 pg. 9
3/5/07 - AG Gonzales CoS Kyle Sampson emails White House Dep. Assistant to the President and Dep.Counsel William Kelley a draft of Assistant AG Moschella's opening remarks before Congress. CC'd to WH Associate Counsel to the President Christopher G. Oprison.
If Moschella said something false in his opening testimony it was cleared by White House Legal.
mbbsdphil wrote on March 20, 2007 1:15 PM:Even a corrupt HR head would immediately recognize that "brainstorming" over the reasons for firing someone has nothing whatever to do with the firing; it is about coming up with reasons to keep the boss out of court for why he really did it. It also makes everyone in on the brainstorming a conspirator, so none of them can squeal without putting themselves in jeopardy.
Mrs Panstreppon wrote on March 20, 2007 1:27 PM:On p.6 of the document Paul liked to is comment about a USA whose resignation has not been made public.
The unknown USA's scheduled resignation date is March 9, 2007. It is now March 20.
Who is the ninth USA fired? It will be a scandal if it is Fitzgerald.
joel wrote on March 20, 2007 1:34 PM:I'm really surprised that the vaunted MBA presidency isn't running itself at least a little more like a real business. Out here in the private sector, we have to build a justification for termination before we drop the axe. Your unemployment response and any EEOC response will carry a lot more weight if they're coherent summaries of past actions, and not a lame effort to come up with an after-the-fact justification.
One caveat on the e-mails that have been released: It's really not possible to know to what extent any of these ostensible performance issues were really major unless we had an equivalent sample of e-mails concerning other USAs. In other words, a layperson might read through the Lam immigration-related materials and come to the conclusion that due to all the give-and-take she really did have a prosecution problem in that area. But we don't really know whether that's a real performance issue or just part of the normal background noise that goes on in any managerial relationship.
In other words, what looks like a major issue might really just be part of the normal daily work in the USA office. Cummins hinted at this in the Salon article; he suggested that these e-mails just reflected normal business at DOJ.
Let's assume for a moment that the entire DOJ were privatized and had to operate under private-sector laws and policies. (Don't get any ideas, Club for Growthers, this is a hypothetical). In order to properly terminate a USA for performance issues, there would need to be established documentary evidence showing that (a) the USA was capable of doing the work; (b) the USA had been made aware of his or her departmental goals; (c) periodic reviews highlight shortfalls, and the USA has coaching sessions with management to improve those areas; (d) given multiple opportunities to improve and a good faith effort (without the scare quotes) by management to assist the USA with development toward meeting goals, the USA still falls short of goals repeatedly. NOW you can draw up the termination paperwork.
In a real world white-collar corporate job, you have to build a case over a solid 6 months or so before you have a really good cause for dismissal. Far more often, the employee actually improves (which is the best case scenario) or resigns out of frustration before termination procedings start.
At any rate, any sensible HR policy would require that performance issues actually be brought to the attention of the employee at some point, and that does not seem to have been the case here. As my boss and I constantly remind each other, "if I don't know something is broken, how can I be expected to fix it?"
rita wrote on March 20, 2007 1:53 PM:Sure does look like the poor performance claim was pretextual. Even if these claims were valid, attorneys like Lam should have been given a warning and opportunity to improve regardless of her at-will status. And their attempt to do something ex post facto makes them look not only malicious but also incompetent.
melior wrote on March 20, 2007 1:57 PM:Apparently the "weak on oscenity" smoke screen was so good Rove kept going back to it.
Don't miss Max Blumenthal's excellent latest in the Nation where he explains how Turdblossom orchestrated a similar smear of Charlton -- after the fact, and baseless -- by citing Brett Ward (Ed Meese's lead panty-sniffer for his War On Porn). Congressman Renzi was the investigee in this case, an investigation that was successfully quashed.
http://tinyurl.com/2pamlk
immanentize wrote on March 20, 2007 2:26 PM:Has anyone yet commented that "renewed energy" as a rationale is in many cases all a fired individual needs to make out a colorable (and profitable) claim of age discrimination?
jill wrote on March 20, 2007 2:29 PM:Al Quaeda was successful on 9/11/01 b/c Ashcroft was sooooooooo worried and preoccupied with PORN! The objectives of the FBI and DOJ post-Clinton and pre-9/11 were drugs and porn. Way to go boys.
coltergeist wrote on March 20, 2007 2:30 PM:It is all about marketing with Republicans. They want to do something and the only thought that goes into it is how to snow the public. Hence, Tony Snow[job].
Democrats use polls to find out what the people want.
Republicans use polls to find out how to sell to the people what they don't want.
chris miller wrote on March 20, 2007 2:40 PM:What else are they doing while we're busy with this?
Douglas Watts wrote on March 20, 2007 2:41 PM:The deal with Margaret Chiara of Michigan is even more blatant.
In a Feb 1 2007 email, Chiara says she has no idea why she has been fired. And in talking points here no reason at all is given because Chiara had not said anything in public, but the memo says "IF PUSHED" provide a rather convoluted reply.
pj wrote on March 20, 2007 2:42 PM:Something else to be concerned about, perhaps just as much if not more than the USA firings, is the loyalty ratings of the 85 USA's who are still on the job and presumably still trumping up cases against Dem politicians to prove their worth. Perhaps in Arkansas or Illinois?
Douglas Watts wrote on March 20, 2007 2:42 PM:The talking points document ref'd above is here:
http://www.talkingpointsmemo.com/docs/usaassessment/?resultpage=4&
Dennis wrote on March 20, 2007 2:57 PM:Let me see if I've got this straight; a whistle blower who exposed this "alleged" misbehavior, would not have any protection under the whistle blower rules set by the Bush administration?
You don't have to be a blind conservative not to see it, just an ignorant one to deny it.
Douglas Watts wrote on March 20, 2007 2:58 PM:Pls. disregard my notes re: Chiara. Robin (from another post) is correct. Apparently, DOJ privately told Chiara the "real" reason for firing her, and that it was not to do with poor performance or lack of "loyalty" to Bush. This ties her 2/1/07 email and the talking points together quite logically. She states:
"FYI: Everyone who knows about my required resignation, (primarily our USA colleagues and people who are providing references ), is astonished that I am being asked to leave. Now that if has been widely reported that departing USAs have either failed to meet performance expectations or that they acted independently rather than follow DOJ/EOUSA directives, the situation is so much worse. You know that I am in neither catagory. This makes me so sad. Why have I been asked to resign? The real reason, especially if true, would be a lot easier to live with. Margaret" (emphasis added)
Cross-reference that with the following DOJ talking points on why she was fired ...
http://www.talkingpointsmemo.com/docs/usaassessment/?resultpage=4&
At minimum, this seems to be clear and corroborated evidence that Chiara was not fired for "performance" reasons as asserted by Gonzales under oath.
Wondering wrote on March 20, 2007 3:19 PM:Notice the second bullet on David Iglesias : "... as we needed and expected her to do." Could this have been just a cut and paste job of the bullet on border enforcement in Carol Lam's talking points? Why think or evaluate when you can cut and paste?
Agjobs wrote on March 20, 2007 3:24 PM:The talking points are real interesting. Lam is blasted because she did not prosecute as many illegal immigration cases as AZ or NM but those guys got fired too. Do they really think the American people are actually stupid enough to buy into this?
RicK wrote on March 20, 2007 3:25 PM:A quick review of the US Attorney Assesment you linked to shows that USA Lam's performance on imigration prosecutions was considered a reason for her firing by comparing to 2 districts that were operating, presumably, at an acceptable level. For instance, her district only prosecuted 422 illegal re-entry cases in 2005 whereas the USA prosecuted 1,607 such cases in New Mexico. Apparently USA Iglesias' record of successful illegal re-entry prosecutions wasn't enough to save him when he defied Sen. Domenici and Rep. Wilson.
rk wrote on March 20, 2007 3:37 PM:This is really "Daily Show worthy." The administration wants us to believe that they forced out the USA for NEVADA because he didn't pursue obscenity cases with sufficient vigor??? There some states where that might make some sense but Nevada ain't one of them.
Mrs Panstreppon wrote on March 20, 2007 4:00 PM:Cancel my comment at 1:27. Margaret Chiara is the anonymous fired USA.
Alex F wrote on March 20, 2007 7:15 PM:If you look at the docs, DoJ gives away the store on any claims for a performance reason. On Nov 4th, Sampson, who worked for McNulty, listed Bogden as one of the USAs to be removed. But his boss McNulty says a full month later, ""I'll admit have not looked at his district's performance". (set 2-1, p. 23) That's about as explicit as you need: the decisions had nothing to do with job performance.
Cy Guy wrote on March 20, 2007 11:17 PM:Has Duncan Hunter commented on the firings yet? I heard him on C-SPAN's 'Road to the White House' Monday and he made a big point of how he got a new border fence built in San Diego (his district) which has been so effective that it prompted the building of the new 700 mile long fence in the latest immigration bill. Maybe Lam has fewer immigration prosecutions because Hunter's fence actually has been effective and thus there are fewer cases to prosecute?
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