Murray Waas

Justice Department to Question Former Lawyers in Politicization Probe

A federal grand jury has subpoenaed several former senior Justice Department attorneys for an investigation into the politicization of the Department's own Civil Rights Division, according to sources close to the investigation.

The extraordinary step by the Justice Department of subpoenaing attorneys once from within its own ranks was taken because several of them refused to voluntarily give interviews to the Department Inspector General, which has been conducting its own probe of the politicization of the Civil Rights Division, the same sources said.

The grand jury has been investigating allegations that a former senior Bush administration appointee in the Civil Rights Division, Bradley Schlozman, gave false or misleading testimony on a variety of topics to the Senate Judiciary Committee.

Sources close to the investigation say that the grand jury is also more broadly examining whether Schlozman and other Department officials violated civil service laws by screening Civil Rights attorneys for political affiliation while hiring them.

Investigators for the Inspector General have also asked whether Schlozman, while an interim U.S. attorney in Missouri, brought certain actions and even a voting fraud indictment for political ends, according to witnesses questioned by the investigators. But it is unclear whether the grand jury is going to hear testimony on that issue as well.

One person who has been subpoenaed before the grand jury, sources said, was Hans von Spakovsky, who as a former counsel to the Assistant Attorney General for Civil Rights was a top aide to Schlozman. An attempt to reach Spakovsky for comment for this story was unsuccessful.

Earlier this year, Spakovsky withdrew his name from nomination by President Bush to serve on the Federal Election Commission after repeatedly claiming a faulty memory or citing the attorney-client privilege to fend off questions from senators about allegedly using his position to restrict voting rights for minorities -- and that he hindered an investigation of Republican officeholders in Minnesota accused of discriminating against Native American voters.

Three current and former Justice Department officials were questioned by investigators about allegations that Schlozman -- with Spakovsky advising and assisting him -- made decisions whether to hire and fire attorneys in the Civil Rights Divison on the basis of their political affiliation.

Another person subpoenaed by the grand jury, according to several sources, was Jason Torchinsky, who, like Spavosky, was also a Counsel to the Assistant Attorney General for Civil Rights.

Torchinsky is not under investigation for any wrongdoing himself, but rather subpoenaed as a witness in the probe, sources said. Previously, however, Torchinsky had refused to voluntarily answer questions from investigators working for the Justice Department's Inspector General about the politicization of the Civil Rights Divison. Reached at his home on Tuesday night, Torchinsky declined to comment for this article.

Sources familiar with the federal grand jury subpoenas say that they were approved at the highest levels of the Justice Department.

The sources said that investigators working the case as well as senior Department officials were distressed that some of the Justice Department's most senior political appointees refused to co-operate with an investigation by the very Department they once served.

"What does this say for the average person on the street if we want them to co-operate?" said a senior official, "How can we say to the ordinary citizen that you should report crimes, tell the government what you know, when the people who ran the Department of Justice thumb their noses at the system?"

Another federal law enforcement official familiar with the subpoenas said that they believed that senior Justice Department officials had no choice but to approve the subpoenas because to do otherwise would have meant overruling career prosecutors and their actions would appear political if they did. The official also said that political appointees at the top of the Department had to appear to be aggressive in their investigation of the politicization because to do otherwise might lead to calls for a special prosecutor to take over the investigation from them.

A former Justice Department attorney who was subpoenaed said that he believed they had been called before the grand jury as "retaliation" for refusing to talk voluntarily to investigators working for Justice's Inspector General. Current Justice Department employees are required to talk to investigators, while former employees are not.

But sources with first-hand knowledge of the investigation said that the former Justice Department officials were subpoenaed because they had information necessary to the Department's probe and without subpoenas there was no other way to compel their testimony.

During his tenure in the Civil Rights Division, career employees charged that Schlozman disregarded longstanding voting rights law to electorally favor Republicans over Democrats.

Joseph Rich, who was chief of the voting rights section of the Civil Rights Division under Schlozman, told the Boston Globe: "Schlozman was reshaping the Civil Rights Division. Schlozman didn't know anything about voting law ... All he knew is he wanted to be sure that the Republicans were going to win."

Schlozman and other Bush administration appointees in the Justice Department claimed that federal law enforcement authorities had been deficient in prosecuting cases of voter fraud. Schlozman and other Bush administration officials -- most prominently Karl Rove -- claimed that the failure to prosecute purported voter fraud benefited Democrats at the expense of Republicans.

But most independent assessments suggest that the vast majority of reports of voting fraud are unfounded.

A recent study [PDF] by Lorraine C. Minnite, an assistant professor of political science at Barnard College, found that most reports of voting fraud turned out to be "unsubstantiated or false claims by the loser of a close race, mischief, and administrative or voter error." Joseph Rich, who was chief of the voting-rights section in Justice's Civil Rights Division until 2005, told me in an interview: "There is virtually no evidence that voter fraud ever occurs except by individuals and in rare instances."

Democrats and interest groups ranging from the League of Woman Voters to the NAACP to those who protect the rights of the disabled, assert that the White House and Republican activists exaggerate claims of voter fraud as a means to suppress voter participation. Citing allegations of purported voter fraud, the Bush White House has supported state initiatives which would require voters to produce state photo identification at the polls.

In the courts, however, state and federal judges have said that such requirements might discourage voting by minorities, the disabled, the impoverished, students, and the elderly -- all segments of voters who traditionally vote in greater numbers for the Democrats.

Von Spakovsky, Schlozman's deputy, who has been subpoenaed to testify before the grand jury because of his refusal to speak to investigators, was also alleged to have to misused his official position by setting aside the law to take actions to help Republican candidates.

When von Spakovsky was nominated to serve on the Federal Election commission, six career officials of the Justice Department's Voting Rights Section, who had worked under him, wrote the Senate asking that he not be confirmed.

The six alleged that "during the 2004 election cycle" von Spakovsky "broke with established Department policy by getting involved with contentious and partisan litigation on the eve of the election. Mr. von Spakovsky drafted legal briefs between the Republican and Democratic parties in three battleground states, Ohio, Michigan and Florida just before the election, all in favor of the Republican party's position." The six career officials further asserted: "These briefs ran counter to the well-established practice of the Civil Rights Division not to inject itself into litigation or election monitoring on the eve of an election where it would be viewed as expressing a political preference or could have an impact on a political dispute."

These briefs ran counter to the well-established practice of the Civil Rights Division not to inject itself into litigation or election monitoring on the eve of an election where it could be viewed as expressing a political preference or could have an impact on a political dispute. Moreover, in another case between the Republican and Democratic parties which concerned an Ohio law that permitted political parties to challenge voters, he drafted a letter that was sent to the court which supported the Republican Party position even though the law did not implicate any statute that the Department enforces.

During his tenure with the Civil Rights Division, Schlozman also repeatedly clashed not only with career attorneys in his own office but also with federal prosecutors who he did not believe were taking the issue of voting fraud seriously enough.

One of those he clashed with was Todd Graves, the U.S. Attorney in Kansas City, Missouri, a conservative Republican stalwart who excelled in his job, but who also was fired by the Bush administration in March, 2006 -- only to be temporarily replaced by Schlozman.

As interim U.S. attorney, less than a week before a tightly contested U.S. Senate race in Missouri in 2006, Schlozman brought an indictment of voter fraud against four workers with a liberal advocacy group, despite the fact that Justice Department guidelines prohibit such indictments so close to election day. Schlozman said that he was justified in his actions because he was afraid that more fraud might take place.

But Robert Kengle, a former deputy chief in the voting-rights section at Justice during the Clinton and Bush administrations, told me in an interview: "They cooked up that there is a general exception to the policy because they wanted to prevent more fraud. But indicting people before the election was not going to change anything. Registration had already closed ... There just wasn't a justification for bending the law."

The Justice Department guidelines state: "Federal prosecutors and investigators should be extremely careful not to conduct overt investigations during the pre-election period or while the elections are underway."

One reason for such a policy, the guidelines say, is that "a criminal investigation by armed, badged federal agents runs the obvious risk of chilling legitimate voting and campaign activities."

In the end, the indictment had to be reissued after the election. In his haste to bring charges, Schlozman had indicted the wrong person --someone with a name similar to the person he wanted to charge.

High Crimes of Bob Novak

Two government officials have told the FBI that conservative columnist Robert Novak was asked specifically not to publish the name of undercover CIA operative Valerie Plame in his now-famous July 14 newspaper column. The two officials told investigators they warned Novak that by naming Plame he might potentially jeopardize her ability to engage in covert work, stymie ongoing intelligence operations, and jeopardize sensitive overseas sources.

These new accounts, provided by a current and former administration official close to the situation, directly contradict public statements made by Novak. He has downplayed his own knowledge about the potential harm to Plame and ongoing intelligence operations by making that disclosure. He has also claimed in various public statements that intelligence officials falsely led him to believe that Plame was only an analyst, and the only potential consequences of her exposure as a CIA officer would be that she might be inconvenienced in her foreign travels.

The two administration officials questioned by the FBI characterized Novak's statements as untrue and misleading, according to a government official and an attorney official familiar with the FBI interviews.

One of the sources also asserted that the credibility of the administration officials who spoke to the FBI is enhanced by the fact that the officials made their statement to the federal law enforcement authorities. If the officials were found to be lying to the FBI, they could be potentially prosecuted for making false statements to federal investigators the sources pointed out.

Novak declined to be interviewed for this article.

The two officials say Novak was told, as one source put it, that Plame's work for the CIA "went much further than her being an analyst," and that publishing her name would be "hurtful" and could stymie ongoing intelligence operations and jeopardize her overseas sources.

"When [Novak] says that he was not told that he was 'endangering' someone, that statement might be technically true," this source says. "Nobody directly told him that she was going to be physically hurt. But that was implicit in that he was told what she did for a living."

"At best, he is parsing words," said the other official. "At worst, he is lying to his readers and the public. Journalists should not lie, I would think." These new accounts, provided by two sources familiar to the investigation, contradict Novak's attempts to downplay his own knowledge about the potential harm to Plame.

Moreover, one of the government officials who has told federal investigators that Novak's account is false has also turned over to investigators contemporaneous notes he made of at least one conversation with Novak. Those notes, according to sources, appear to corroborate the official's version of events.

That the FBI interviewed the officials who warned Novak not to publish Plame's name could not be independently corroborated through federal law-enforcement authorities. That's not surprising � the investigation has been shrouded in secrecy.

Over the past several months, the FBI has interviewed more than 30 Bush administration officials and has reviewed phone logs, personal calendars, and e-mail records, according to government sources. But Attorney General John Ashcroft tightly controlled information gathered during the probe, requiring FBI agents to sign unprecedented nondisclosure agreements that say they could face immediate termination if they speak to the press. As a result, scant information about the leak investigation has appeared in the media, making it all but disappear as a political issue for the Bush administration until the disclosure last week that a federal grand jury had been convened to hear evidence in the matter.

On December 30, Ashcroft recused himself from the case so a special counsel, U.S. Attorney Patrick Fitzgerald, could take over. And on January 21, a federal grand jury in Washington began hearing evidence, re-interviewing witnesses, and notifying others that they will be called. At least four Bush administration officials have testified so far before the grand jury.

Deputy Attorney General James Comey said the secrecy surrounding the investigation would continue -- partly because "we don't want to smear somebody who might be innocent and might not be charged."

Shortly after his column appeared, Novak seemed to suggest that the information about Plame was planted as part of a White House campaign. In an interview with Newsday reporters Timothy M. Phelps and Knut Royce, he said, "I didn't dig it out, it was given to me. They thought it was significant. They gave me the name and I used it."

Then Novak started to backtrack, giving the impression that the leak was more the result of his own initiative than from a White House source. He also claimed the Newsday reporters quoted him out of context, an accusation both reporters deny. (Full disclosure: Royce is my longtime friend.)

Novak made another statement about his column during a September 29 broadcast of CNN's Crossfire. "Nobody in the Bush administration called me to leak this," he said. "In July, I was interviewing a senior administration official on Ambassador [Joseph] Wilson's report when he told me the trip was inspired by his wife, a CIA employee working on weapons of mass destruction. Another senior official told me the same thing.

"When I called the CIA in July, they confirmed Mrs. Wilson's involvement in a mission for her husband on a secondary basis ... they asked me not to use her name, but never indicated it would endanger her or anybody else.

"According to a confidential source at the CIA, Mrs. Wilson was an analyst, not a spy, not a covert operative, and not in charge of undercover operatives. So what is the fuss about, pure Bush-bashing?"

In his July 14 column, Novak claimed that Plame had played a role in the selection of her husband for a mission to Niger to investigate allegations that Saddam Hussein was buying enriched uranium. Yet White House and CIA officials have since said that Wilson, a former national-security senior director for African affairs, was chosen only because of his expertise, and that his wife had no role in his selection.

A government official also questions Novak's claims that the columnist "called the CIA" and "they confirmed Mrs. Wilson's involvement in her husband's mission." Rather, this person says, the CIA at first declined to comment. Still later, the same official contends that Novak was categorically told that Plame had played no role in the selection of her husband for the Niger mission.

"He was told it just wasn't true -- period," said the government official. "But he just went with the story anyway. He just didn't seemed to care very much whether the information was true or not."

Apparently the leak to Novak was made as senior Bush administration officials were reportedly attempting to discredit Wilson, who had been saying that the administration had relied on faulty intelligence information to bolster its case to go to war with Iraq.(President Bush had cited the Niger evidence in his 2003 State of the Union address.)

Congressional Democrats and some members of the Bush administration say the purpose of the leak was not only to discredit Wilson but also to intimidate other government officials from coming forward to question the administration's rationale for war.

Steve Huntley, the editorial-page editor of the Chicago Sun-Times, which is the flagship newspaper for Novak's syndicated column, says he "implicitly and completely trusts Bob Novak's reporting."

Fred Hiatt, the editorial-page editor of The Washington Post, which also ran Novak's column, declined to comment. Previously, though, he told his newspaper's ombudsman, Michael Getler, "In retrospect, I wish I had asked more questions, and I wish Bob had informed us and his readers that he had considered, and rejected, a CIA request to withhold her name."

(After Novak's column appeared, an anonymous administration official said the CIA warned Novak of "security concerns" that would arise if he were to publish Plame's name. Novak has disputed that account as well.)

In an online column, "Take Three Steps to Avoid Future Novaks," Aly Colón of the Poynter Institute, a nonprofit, educational organization for journalists, writes, "There's an old adage that claims journalists are only as good as the sources that feed them. Here's a new one: Journalists are only as credible as the ethics that guide them. By disclosing the identity of a CIA operative, Novak provoked a Justice Department investigation of his sources and raised serious questions about his ethical conduct."

What if Novak indeed purposely mislead readers of his column-- as the two administration officials have asserted to the FBI?

In an interview, Colón, while saying he could not speak to the specifics of this particular story said: "Any time a journalist purposely deceives his readers, he undermines the newsperson's or [his or her own] news organization's credibility" and "threatens the trust between the reader and reporter."

Murray Waas is a Washington journalist. Research assistance for this article was provided by Thomas Lang.

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