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Toobin: Not telling straight story a big part of firestorm

Story Highlights

• Firing of U.S. attorneys "a political problem; it's not a legal problem"
• The presidential appointees are "considered fairly insulated from politics"
• "The issue here is not that he fired people; it's why he fired people"
• More disclosures, GOP criticism would be "big problem" for Alberto Gonzales
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NEW YORK (CNN) -- Attorney General Alberto Gonzales said Tuesday that "mistakes were made" in the dismissals of several federal prosecutors, but rejected Democrats' calls for his resignation on the same day that his chief of staff stepped down.

CNN anchor Anderson Cooper spoke late Tuesday with CNN senior legal analyst Jeffrey Toobin for perspective on the controversy over the firings.

COOPER: Was this illegal?

TOOBIN: Certainly not. He has absolute -- the president has absolute authority to fire people. He could decide to fire all the Catholic U.S. attorneys tomorrow. ...

COOPER: So, why does it matter?

TOOBIN: Well, it's a political issue, because U.S. attorneys have traditionally been very much insulated from politics.

The idea is that, yes, they are presidential appointees. But so are generals in the military. And they're considered fairly insulated from politics, too. ...

And there's a lot of circumstantial evidence here that suggests that they -- that some of these people, at least, were fired for not prosecuting Democratic politicians and not prosecuting Democratic voters for vote fraud. That's a political problem. It's not a legal problem.

COOPER: You know, it's not my job to take sides on this, so let me just ask the obvious question, which I guess Republicans would ask, in particular, is, why was it OK for President Clinton to fire all of these attorneys, and for this Republican president to get in trouble for just firing selectively?

TOOBIN: Because U.S. attorneys are traditionally replaced by a new president.

What Clinton did was, he replaced them all immediately. U.S. attorneys are always replaced by a new administration. They usually just let each person's term end, and then replace it.

COOPER: So if -- as I guess was discussed -- if, at the beginning of President Bush's second term, he just decided to fire them all, that would have been OK?

TOOBIN: I think that certainly wouldn't have created the political problem that they had here now. I mean, it would have been very disruptive to the judicial system. It's never been done in the middle of a president's term.

The issue here is not that he fired people. It's why he fired people -- you know, to get Karl Rove's assistant to be the U.S. attorney in Arkansas. ... That's not a very good reason. If he thinks ... a U.S. attorney is not enforcing immigration laws correctly, that seems like a legitimate reason. ...

COOPER: And, clearly, part of the outrage that we heard a lot of today, and the reason Alberto Gonzales is now particularly in the hot seat, is because the Justice Department was saying one thing to lawmakers, but, in truth, they weren't giving them the full story.

TOOBIN: Right. The initial explanation was, this was just an internal Justice Department matter.

And, here, it's clear that this whole thing was orchestrated by [former White House Counsel] Harriet Miers and [White House political adviser] Karl Rove and people at the White House. ... So, not telling a straight story is obviously a big part of the problem.

COOPER: Kyle Sampson, who is the chief of staff to Attorney General Alberto Gonzales -- and Gonzales said he knew none of this; he basically has put it all on his chief of staff, who has now stepped down -- sent an e-mail to then-White House counsel Harriet Miers.

And I want to read some of it. This was about the firing. He wrote: "I'm concerned that, to execute this plan properly, we must all be on the same page and be steeled to withstand any political upheaval that might result. If we start caving to complaining U.S. attorneys or senators, then we shouldn't do it. It will be more trouble than it's worth."

TOOBIN: Well, he was a prophet.

I mean, he knew. He understood. The problem is that, you know, U.S. attorneys are not like usual -- you know, the president gets to replace his secretary of state any time he wants, just because he doesn't like the policies he's following. U.S. attorneys are different.

That's why Sampson knew there would be a firestorm. There has been a firestorm. But they don't seem to have a very good explanation. And they are not really acknowledging what seems apparent, which is that some of these people were fired for very political reasons, not just because they weren't doing a good job.

COOPER: So, what happens now?

TOOBIN: Certainly, as a legal matter, nothing happens. I mean, these U.S. attorneys, the new ones, will be -- the president has the power to appoint them. Not all of them, under a change in the law, have to be confirmed by the Senate.

But the question is, can Gonzales take the heat and remain as attorney general while this is going on?

COOPER: He may not be able to?

TOOBIN: He may not be able to. ... And I think the next few days, and if any more disclosures come out, and if any Republicans turn on him, then he's in [for a] big problem.

COOPER: All right.

TOOBIN: But Democrats are not so much of a problem.


CNN senior legal analyst Jeffrey Toobin



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