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Posted May 9, 2007 by J. Gerald Hebert

The Explanation Can Be Worse Than The Offense Itself

I remember a story that attorney/humorist Jacob Stein once told about a court jester.  It goes something like this.  The king told the court jester that the jester needed to come up with an example of a situation where the explanation of a crime was more offensive than the crime itself.  If the court jester was unable to do so that day, he would be put to death.  Later that day, as the King and Queen were walking up a stair case to ascend their throne, the court jester stole up behind them and pinched the king on the buttocks.  The king whirled around and drew his sword, ready to strike whoever had pinched him.  There was the court jester, who simply smiled and said, “Oh excuse me, your majesty, I thought it was the Queen.”

A recent article by Charlie Savage of the Boston Globe on former Department of Justice (DOJ) official Bradley Schlozman caught my eye and brought to mind the story of the court jester.  The article reported that Schlozman, as U.S. Attorney in Missouri, had indicted several Democrats just before the November 2006 elections. 

Now I must confess at the outset that I read this article with little respect for the integrity of Brad Schlozman.  While at DOJ in 2003, he and his assistant, Hans von Spakovsky, had served as the decisionmakers over a controversial and racially discriminatory congressional re-redistricting plan that had been pushed through the Texas Legislature by ex-Congressman Tom DeLay.  Despite clear evidence that the plan harmed minority voters, and despite a unanimous staff recommendation by more than half a dozen career attorneys in the Voting Section that the plan should be rejected as violative of the Voting Rights Act, Schlozman and von Spakovsky approved the plan anyway.  Their decision was plainly motivated by a desire to help Congressman DeLay gain more congressional seats from Texas.  As DeLay candidly said in 2003, “I’m the majority leader and I want more seats.”

Given Schlozman’s politically motivated actions in the Texas redistricting and a number of other matters while at DOJ headquarters, I was not really surprised when I heard last fall that his office had announced indictments of Democrats just before the November 2006 elections.  I knew Schlozman to be, in the terminology of Kyle Sampson the former aide to Alberto Gonzales, a “loyal Bushie” and that he would not hesitate to indict Democrats days before the election in order to sway election results in the GOP’s favor.  What struck me as odd about all this, however, was that it seemed at the time to be contrary to DOJ policy as I understood it.            

Since I spent over 20 years as a DOJ attorney prosecuting voting rights cases, I knew the Department had an express policy of not bringing voting or election related indictments just prior to an election.  As the Globe article correctly notes: “A 1995 Justice election crime manual says ‘federal prosecutors . . . should be extremely careful not to conduct overt investigations during the pre-election period’ to avoid ‘chilling legitimate voting and campaign activities’ and causing ‘the investigation itself to become a campaign issue.’” 

The manual makes abundantly clear that inasmuch as Departmental attorneys were assigned to matters involving political figures and the process of voting, we were not to take any action that could have the possibility of affecting the election.  Indeed, as the Boston Globe article noted, the manual even went so far as to emphasize the importance of this policy by underlining the following provision: “most, if not all, investigation of alleged election crime must await the end of the election to which the allegation relates.”

So how is it Schlozman was able to time his indictments to fall just before the election ?  A DOJ spokesperson told the Globe that “Schlozman's office got permission from headquarters for the election-eve indictments.  It added that the department interprets the policy as having an unwritten exception for voter registration fraud, because investigators need not interview voters for such cases.” 

An “unwritten exception for voter registration fraud”?  This doesn’t even pass the straight face test.  The Department goes to great pains to put its policies in writing.  Rules about lawyer conduct at DOJ and procedures that we federal prosecutors had to follow go through dozens of rounds of drafting and re-drafting.  They are then explained to Departmental lawyers in meetings and questions are asked and answered.  If any exceptions to a rule are carved out, they are always put in writing.  That is what always made working at the Department one of the best jobs in the world, because you worked in a place where the rule of law mattered, and you had colleagues and supervisors who genuinely cared about the rules themselves and their consistent enforcement.

The ridiculousness of the explanation from the Department for the unwritten exception almost exceeds the spuriousness of the exception itself.  Remember the court jester ?  The DOJ spokesperson said the exception existed “because investigators need not interview voters for such cases.”  Now think about it.  You have an allegation that someone has sent in registration forms for people either who do not exist or who live at a fictitious address.  Wouldn’t it make sense to send FBI agents to the purported addresses listed on the allegedly fraudulent voter registration forms to see who answers the door ?  Of course, you would start by reviewing the documents at the elections office itself, looking at the voter registration applications, the list of registered voters, the handwriting on the documents—and meeting with local election officials about the matter.  But, if the allegation is that “voter X” doesn’t live at “address X,” wouldn’t it be helpful to have testimony from an agent who to went to “address X” and confirmed that “voter X” doesn’t live there ?  Consider also that such an agent visit might resolve a fraud claim where, indeed, “voter X” doesn’t live at “address X,” but the actual resident of “address X” informs the agent that “voter x” lives a half-block away, leading to the discovery that that the voter fraud allegation was the result of a typo, illegible handwriting, or some other innocent explanation.

Indeed, one of persons indicted by Schlozman was Dale Franklin, who was alleged to have "furnished to the Kansas City Board of election Commissioners a voter registration application on which Franklin forged the signature of the applicant and on which the address and telephone number listed were false.”  See news release of US Attorney for the Western District of Missouri, February 6, 2007.  Franklin pleaded guilty to this charge in February 2007.  Wouldn’t an investigation of such a matter produce at least one voter being interviewed?  Just a wild guess here, but I am thinking that maybe the voter whose signature has been allegedly forged might have some relevant information, such as “no, that is not my signature,” or “yes it is”. 

Further, even if a fraudulent voter registration investigation could be undertaken without interviewing voters (a dubious proposition), the only other investigatory technique would require sending FBI agents into an elections office just before an election to gather the records.  This is hardly a low profile investigatory technique.  Frankly, federal prosecutors know full well that if you send FBI agents to an elections office just before an election, it will cause more of a ruckus and receive more publicity than if those same agents went around and quietly interviewed voters who had recently registered to determine if they had truly done so or if someone had registered “for them” (although such an investigative technique has its own set of potential voter intimidation problems).  But apparently under the new unwritten exception policy, DOJ may now send FBI agents into local election offices just before an election even if it will have an obvious outcome on the election, so long as it does not involve interviewing voters.  Does this explanation make sense to anyone ?  The court jester is at it again.

Both of these factors—the obvious need to interview voters with respect to voter registration fraud claims, and the likely chilling effect of sending FBI agents into elections offices right before an election—explain why DOJ attorneys wait until after the election to scrutinize all such allegations.  No exceptions.

The scandal over the firings of US Attorneys continues to unfold.  With explanations like this coming from the Gonzales Justice Department, there is just no telling where this scandal will go.  But one thing is certain, it will take years to restore the integrity of the Department and its reputation for evenhanded law enforcement, and for that we can thank Attorney General Alberto Gonzales and his court jesters at DOJ.

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