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GovExec.com - Covering The Business Of The Federal Government
LEGAL AFFAIRS
The Scales Of Justice

By Murray Waas, National Journal
© National Journal Group Inc.
Thursday, May 31, 2007

In the closing weeks of Missouri's tight 2006 U.S. Senate race, the U.S. attorney in Little Rock, Ark., took the unusual step of revealing that his office's investigation into possible state government contracting abuses in Missouri had found no evidence of wrongdoing by Republican Gov. Matt Blunt.


How a Missouri Republican operative interacted with the Justice Department in pursuit of a partisan agenda.




Separately, less than a week before Election Day, the interim U.S. attorney in Kansas City, Mo., brought voting-fraud charges against four employees of the activist group ACORN, which registers low-income people who typically vote for Democratic candidates. Justice Department guidelines discourage prosecutors from bringing criminal charges so close to an election.

Although the actions of the two U.S. attorneys were unconnected, they shared a common denominator: Mark (Thor) Hearne, a Republican Party operative who had served as national election counsel for the 2004 Bush-Cheney presidential campaign and played a behind-the-scenes role in both cases. Hearne's role provides a window into how a Republican activist was pushing Bush administration officials -- and perhaps in some cases working in concert with them -- to use the Justice Department for partisan purposes.

Last year's neck-and-neck Senate race in Missouri between Republican incumbent Jim Talent and Democratic challenger Claire McCaskill was a high-profile contest for both political parties. Democratic and Republican operatives were looking for any edge they could find in the race, which McCaskill ended up winning narrowly.

Republicans feared that an investigation of the Blunt administration by the U.S. attorney in Arkansas, Bud Cummins, could tar Blunt and hurt Talent and other GOP candidates on the ballot. Blunt himself was not up for re-election. The investigation was spurred by allegations that the Blunt administration had improperly awarded state contracts to political contributors to run privately operated bureaus where Missouri residents obtain driver's licenses and register their vehicles. Because of potential conflicts of interest, the U.S. attorneys in Missouri weren't handling the investigation.

Cummins said in an interview that a former senior Justice Department official from the Bush administration, William Mateja, repeatedly contacted him during the investigation and asked whether Blunt was implicated in the corruption probe. Cummins said he was unaware at the time that Mateja was making his calls at the behest of Hearne, whose law firm had retained Mateja on Blunt's behalf.

In the case involving ACORN, Hearne had urged the Justice Department long before the election to investigate the activist organization and similar groups that registered Democrats. When Hearne came to believe that the U.S. attorney for western Missouri, Todd Graves, was not taking seriously allegations that ACORN workers were registering people who did not qualify to vote, he took his complaints to senior officials in Justice's Civil Rights Division and to the White House, according to a former Justice official and a private attorney who worked with Hearne. The private attorney said in an interview that Hearne boasted to him about having discussions with administration officials who wanted Graves replaced.

The White House declined to comment on any of its discussions with Hearne.

At the insistence of the Bush administration, Graves resigned on March 10, 2006. Graves has said publicly that he believes his dismissal was the result of clashes he had with his superiors for not aggressively pursuing voting-fraud cases.

When Graves resigned from Justice, Bradley J. Schlozman, one of his superiors, replaced him. The two had disagreed on the voting-fraud cases when Schlozman was acting head of the Civil Rights Division's voting-rights section.

Schlozman had pressed Graves to bring a civil suit against Missouri Secretary of State Robin Carnahan, a Democrat, for allegedly failing to crack down on voting fraud. Graves expressed serious reservations about the case, saying it lacked merit. Subsequently the voting-rights section filed the suit. Later, U.S. District Court Judge Nanette K. Laughrey dismissed it, concluding: "It is ... telling that the United States has not shown that any Missouri resident was denied his or her right to vote as a result of deficiencies alleged by the United States. Nor has the United States shown that any voter fraud has occurred."

There is no evidence that Hearne's complaints led to Graves's dismissal. But two other fired U.S. attorneys, David Iglesias of New Mexico and John McKay of Washington state, have said they believe they were fired because Republican activists in their states complained that they weren't doing enough to pursue voting-fraud cases.

And D. Kyle Sampson, the former chief of staff to Attorney General Alberto Gonzales, has testified before the Senate Judiciary Committee that several U.S. attorneys were recommended for dismissal after local Republican leaders and party activists complained to the White House that the prosecutors were not aggressively probing voting fraud.

Mark (Thor) Hearne
As national election counsel for the 2004 Bush-Cheney campaign, Hearne worked with White House presidential adviser Karl Rove and the Republican National Committee to identify potential voting fraud in battleground states, three people who worked with Hearne at the time said in interviews. Party activists say that Hearne has become one of the most important Republicans on voting-fraud issues in recent years.

A resume posted on the Web site of Hearne's law firm showed that during the 2004 presidential campaign, Hearne was "responsible for advising the campaign on national litigation and election-law strategy as well as overseeing local counsel.... From September through the election, Hearne traveled to every battleground state and oversaw more than 65 different lawsuits that concerned the outcome of the election."

Although Hearne has a reputation as a committed partisan, as a partner at Lathrop & Gage he has represented private citizens faced with losing their homes or properties to eminent domain claims. Associates say that Hearne has personally represented more than 50 property owners. "It's a passion of his not just because of his belief that eminent domain claims are not right, but because he wants to help the people," says an attorney who has worked with him on election-law issues.

But politics is clearly also a Hearne passion. Among his mementos are personal letters from President Bush and Karl Rove thanking him for his work in the 2004 campaign and a picture of Hearne holding up and examining a ballot with a "dimpled chad" in Broward County as a representative of the Bush campaign during the contested 2000 Florida recount.

In February 2005, with encouragement from Rove and the White House, Hearne founded the American Center for Voting Rights, which represented itself as a nonpartisan watchdog group looking for voting fraud. Critics, including the liberal group People for the American Way and state chapters of the League of Women Voters, say that the group was a Republican front and pursued only allegations of voting fraud by Democrats. The group now appears to be defunct.

Citing Hearne's work, Rove told the Republican National Lawyers Association in a speech on April 7, 2006: "We are, in some parts of the country, I am afraid to say, beginning to look like we have elections like those run in countries where the guys in charge are ... colonels in mirrored sunglasses."

Independent assessments suggest that many 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, said in an interview: "There is virtually no evidence that voter fraud ever occurs except by individuals and in rare instances."

Even Bryan Lunde, the former chairman of Hearne's Center for Voting Rights, said in an interview that allegations by both political parties of voting fraud and voter suppression are overblown. "It has become a new tool in campaigns to make a charge just for the sake of making a charge.... But don't ever let the facts get in the way of your accusation. Both sides seize on that one-hundredth of 1 percent of something that goes wrong in an election to make it something bigger. They try and make the anecdote the story. But there is very little voter fraud and very little voter suppression."

In the same talk to the Republican National Lawyers Association, Rove cited six jurisdictions where he said voting fraud by Democrats was pervasive. Earlier, the White House had placed U.S. attorneys in three of those jurisdictions on its lists of candidates for removal. Justice let two of them go: McKay in Washington state and Iglesias in New Mexico.

Previously, Hearne helped draft legislation for the Missouri Legislature that would have required Missourians to have state-issued picture ID cards in order to vote. Hearne and senior Bush administration employees in the Civil Rights Division have said that such laws are necessary to prevent voting fraud. Democrats and voting-rights groups say that evidence of voting fraud is scant and that those who would have the most difficulty obtaining IDs, such as the poor and the disabled, tend to vote for Democrats. In a 6-1 ruling, the Missouri Supreme Court struck down the Missouri photo ID law in 2006, saying it was unconstitutional.

Hearne also provided the Bush administration with recommendations for attorneys in the Civil Rights Division, which oversees voting-fraud cases, according to the former Justice official and an attorney who has worked closely with Hearne on voting-fraud issues. Hearne was in contact with Republican lawyers around the country in his role as co-founder, vice president, and director of election operations for the Republican National Lawyers Association.

Justice's Office of Professional Responsibility and its inspector general, as well as the House and Senate Judiciary committees, have been investigating whether the Bush administration illegally considered party affiliation when it was hiring career department employees.

A central focus of those probes has been whether administration officials stacked the Civil Rights Division with lawyers with GOP backgrounds. Federal law prohibits the consideration of party affiliation in the hiring of civil service employees at Justice and other departments.

At least five current and former officials of the Civil Rights Division have told federal investigators that based on their firsthand knowledge, the more-qualified candidates in their division were often passed over in favor of attorneys affiliated with the Republican Party; the Federalist Society, a conservative political organization; and the Republican National Lawyers Association.

A Boston Globe analysis found that when Schlozman was the acting head of the voting-rights section, seven of 14 career attorneys he hired were either members of the Federalist Society or the Republican National Lawyers Association.

In testimony on May 23 before the House Judiciary Committee, former senior Justice official Monica Goodling said she and other Justice officials regularly considered political affiliations in hiring career prosecutors. "I do acknowledge that I may have gone too far in asking political questions of applicants for career positions and may have taken inappropriate political considerations into account on some occasions. I regret those mistakes," Goodling said.

Current and former law enforcement officials say that when Graves was asked to resign, he was also asked to recommend a possible successor. He recommended two deputies: Roseann Ketchmark, his first assistant U.S. attorney, and Matt Whitworth, the head of his Criminal Division.

The sources say that Goodling interviewed Ketchmark for the position. But, according to a person familiar with the matter, Ketchmark came away from the interview believing that Goodling had made up her mind before the interview. Whitworth was not interviewed for the position, according to the same sources. Justice Department records indicate that aides to Gonzales had already decided on Schlozman to replace Graves.

Later, Goodling played a role in selecting assistant U.S. attorneys to serve while Schlozman was the interim U.S. attorney. Two people who were interviewed for positions told associates that they felt uncomfortable during their interviews because Goodling asked questions about their political leanings.

The Bush administration has adamantly denied ever manipulating law enforcement procedures to affect the outcome of an election.

But Missouri Democrats dispute that denial, pointing to the statement that cleared Blunt so close to Election Day, the filing of the civil lawsuit against Missouri's secretary of state over the objection of Todd Graves, Graves's dismissal and his replacement by Schlozman, and the indictment of ACORN workers less than a week before the election. They call this strong evidence that the criminal-justice system was politicized to advance Republicans in the election.

Schlozman told the local media in Missouri at the time that in the ACORN matter he had to make an exception to the policy against leveling charges so close to an election because more fraud might have occurred on Election Day and because his superiors in Washington had approved the indictments.

But Robert Kengle, a former deputy chief in the voting-rights section at Justice during the Clinton and Bush administrations, said 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 Arkansas
In addition to pushing the voting-fraud issue during Missouri's 2006 Senate race, Hearne also assisted Republicans by obtaining an unusual statement from Cummins, then a U.S. attorney in Little Rock, clearing Gov. Blunt of any wrongdoing in the awarding of the contracts for state license bureaus.

In an interview, Cummins said that during the course of the investigation Mateja contacted him half a dozen times about the status of the probe and asked whether Blunt might be in jeopardy. Cummins said that Mateja had great credibility with him because Mateja had been a widely respected career prosecutor and senior manager in the Justice Department. Just before Mateja left the department, he had served as senior counsel to two deputy attorney generals, Larry Thompson and James B. Comey.

Originally, Cummins said, Mateja asked him: "Should we be worried, or can we tell people that they have no reason to be?"

Cummins said he told Mateja that he could not say much because the investigation was ongoing. Although Blunt himself was not under investigation, Cummins said he told Mateja that the "investigation was not too far removed from the governor's office. You never know what is going to happen tomorrow in an investigation."

At the end of the first call, Cummins said, Mateja "asked for permission if he could contact me from time to time and touch base." Cummins said he told Mateja that would be fine.

Mateja declined to comment about the matter: "That particular representation I am just not going to talk about with you." In a brief conversation with National Journal, Hearne confirmed that he and his law firm, on behalf of the Blunt campaign, had hired Mateja to monitor the investigation. Hearne declined further comment.

When the investigation was closed, Cummins said, he told Mateja that Blunt had never been part of it. Cummins said he was unsure whether he or Mateja suggested the statement clearing Blunt.

On October 4, 2006, about a month before Election Day, Cummins said in a statement: "Normally, a United States' Attorney's Office does not comment on or even confirm the existence of any investigation unless or until formal charges result.... There are, however, exceptional circumstances where it becomes appropriate to disclose certain information.... Earlier in the year, the existence of the investigation was disclosed to the media and has since become a topic of substantial public interest and discourse in the State of Missouri. In light of that unfortunate disclosure and the publicity it spawned, it is appropriate to confirm certain facts. First, the matter has been closed with no indictments sought or returned. Second, at no time was Governor Blunt a target, subject, or witness in the investigation, nor was he implicated in any allegation being investigated."

Within the U.S. attorney's office in Little Rock, some prosecutors objected to Cummins's statement. They said they believed it violated the Justice Department guideline that prosecutors not comment on investigations, and that clearing a Republican governor so close to an election might raise questions about whether Blunt received preferential treatment in contrast with others who almost never receive statements exonerating them.

Cummins said in an interview that his actions were justified because Blunt had been falsely accused; that his statement abided by Justice Department guidelines; and that Jane Duke, his first assistant U.S. attorney, who also worked on the case, had supported his decision.

Two other federal law enforcement officials who were not directly involved in the matter said they believed that Cummins acted appropriately and within Justice Department guidelines, because the guidelines allow for U.S. attorneys to publicly clear someone when that person has been falsely accused in a case that has received massive publicity.

In any event, Cummins himself was forced to resign his post only two and one half months later, on December 20, 2006. His interim replacement was Tim Griffin, a protege of Karl Rove's.

-- Previous coverage of pre-war intelligence and the CIA leak investigation from Murray Waas. Brian Beutler provided research assistance for this report.




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