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January 16, 2009 | 8:04am

Why Two Bush Appointees Are Refusing to Leave

by Scott Horton

Two U.S. attorneys appointed by Dubya are refusing to leave the Justice Department
when Obama takes office. Their explanation: they've got too many corrupt Democrats
to prosecute!
An internal report issued this week by the Justice Department brought attention to the
Bush Administration’s efforts to “burrow” partisan ideologues deep in career civil service
positions at the department. But even a few of Bush’s political appointees at Justice are
giving the new Obama administration trouble. Though their lease may technically run out
on January 20, U.S. Attorneys Mary Beth Buchanan of Pittsburgh and Alice Martin of
Birmingham are resolved to stay in their posts. The Daily Beast has learned that both are
arguing to the Obama transition team that their efforts to convict Democrats should
guarantee them an extended stay into the Obama presidency.
In their scathing report, Justice Department investigators concluded that former Civil
Rights Division acting head Bradley Schlozman attempted to purge the division of those suspected of liberal sentiments and to
replace them with fellow neoconservative ideologues, whom he called “comrades.” During the Bush terms, nearly two-thirds of
the professional staff of the Civil Rights Division left and new hires were—in violation of criminal statutes—carefully vetted for
partisan political fidelity. Notwithstanding the Inspector General’s recommendation that criminal action be brought, Schlozman
will not be prosecuted. Bush Justice Department officials continue their perfect record of impunity, refusing to initiate criminal
actions against partisan Republicans found to have broken the law by politicizing the Department.
The political appointees present Obama and his new attorney general, Eric Holder, with a different headache. By tradition,
political appointees serve at the pleasure of the president, and when a new president comes to office those who held their
commissions from his predecessor tender their resignations. This year, however, Buchanan and Martin appear girded to make a
last stand like Japanese soldiers who never got word that the war was over.
Last month, Buchanan released a letter stating that she had no intention of submitting her resignation. An ideologically
committed Federalist Society member, Buchanan is close to former Pennsylvania Sen. Rick Santorum, who actively promoted
her as U.S. attorney. Following her appointment in 2001, Buchanan quickly gained the favor and approval of the White House.
In the key period of 2004-05, while groundwork was laid for what later became the U.S. attorney's scandal, Buchanan served as
director of the Executive Office for U.S. Attorneys, the key position at Justice that oversaw all the 94 U.S. attorneys. A later
internal Justice Department probe, in which Buchanan figures prominently, highlights the role played by that office in Karl
Rove’s plan to sack U.S. attorneys.
Back in Pittsburgh, Buchanan made a name for herself with two prosecutions. One was Operation Pipedream, a $12 million
program designed to criminalize and put out of business Internet vendors of water pipes. She prosecuted famed actor Tommy
Chong, one-half of the comedy duo of Cheech and Chong, because of his support of a company founded and run by his son.
Chong had no criminal record, his activities were not (and are not) considered criminal by many legal experts, and Chong’s
dealings had no connection to western Pennsylvania. But Buchanan used heavy-handed threats to compel Chong to agree to a
guilty plea. In her sentencing memorandum, Buchanan insisted that Chong do prison time because he had starred in a number
of films in which the use of marijuana was portrayed and prominent Republican political figures were ridiculed or mocked. The
case is the subject of a popular documentary produced in 2005 entitled a/k/a Tommy Chong.
The second case is a corruption prosecution of one of the country’s most prominent medical examiners, Dr. Cyril Wecht, also
not coincidentally a leading figure in Pittsburgh Democratic politics. The charges brought against Wecht involve a long list of
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petty accusations, including that he used his office telephone and fax machine for personal matters. These charges happen to
bear remarkable similarity to accusations of petty improprieties that flew around Buchanan’s mentor Santorum in the two years
before Pennsylvania voters retired him from public life in 2006. Buchanan, however, opted not to pursue any of the accusations
surrounding Santorum. Wecht’s defense counsel, former Attorney General Richard Thornburgh, who served under George H.W.
Bush and was governor of Pennsylvania, testified before a House Judiciary inquiry that Buchanan’s prosecution was improper
and politically motivated. "It is not the type of case normally constituting a federal 'corruption' case brought against a local
official," said Thornburgh. "There is no allegation that Dr. Wecht ever solicited or received a bribe or kickback. There is no
allegation that Dr. Wecht traded on a conflict of interest in conducting the affairs of his selected office." The case was originally
tried before a judge appointed by George W. Bush who, though close to Buchanan, refused to recuse himself and forbade
defense counsel in any way from referencing Buchanan’s political motivation. The trial ended in a hung jury, which divided
sharply in favor of Wecht’s acquittal. Afterward, individual jurors harshly criticized Buchanan’s conduct and she responded by
sending FBI agents to “interview” them.
Notwithstanding broad appeals from the Pennsylvania legal community for Buchanan to drop the case, she has pledged to
continue it. The judge who originally oversaw the case, meanwhile, has been removed by order of an appeals court. Buchanan
cites the supposedly unresolved Wecht case as a reason why she must stay on as U.S. attorney.
Buchanan’s colleague in tenacity is Alice Martin, the U.S. attorney in Birmingham, Alabama. Martin gained a nationwide
reputation through two failed prosecutions: the first of HealthSouth CEO Richard Scrushy for fraud relating to the collapse of
the former health insurance giant; and the other of former Alabama Gov. Don Siegelman. Her conduct has been the subject of
repeated investigations by Congress and the Justice Department’s ethics office, several of which are still pending. In the course
of the last year, Martin has undertaken sweeping investigations targeting a large part of the state’s Democratic legislators and
the Democratic mayor and city administration in Birmingham. She manages these cases in close collaboration with friendly
Republican oriented media, which usually feature detailed accounts of her investigations and her proposed proof as the
investigations conclude and arrests are undertaken.
Martin has a flair for drama. One of her targets is a 63-year-old retired social studies teacher from Huntsville named Sue
Schmitz, who was taken from her home at the crack of dawn and manhandled by five FBI agents who tore her skin and left her
bleeding as she was dragged out of her bathroom. Schmitz was accused of underperforming on a contract to teach
underprivileged children for which she was to receive $50,000 per annum. Why was a retired social studies teacher suddenly
the object of a massive multi-million dollar federal prosecution? Critics say the answer to that question is easy: she is a
Democratic member of the state legislature and the Republicans want her seat. At Schmitz’s trial, any discussion of political
motive was suppressed by the judge, but the case ended in a hung jury. Martin has promised to retry the case, at a cost of
further millions of dollars. Other targets of Martin’s campaign to rid the state of corrupt politicians, which appears to target
only Democrats, include Birmingham mayor Larry Langford and State Sen. E.B. McClain. She is reported to be preparing charges
against as many as a dozen other Democratic members of the state legislature.
Martin previously coveted an appointment as a federal judge, but her efforts fell flat, largely as a result of mounting questions
over her prosecutorial record. With the new administration approaching, she made clear her desire to hold on to her post as
U.S. attorney for another year of prosecutions. Her Kafkaesque argument: she is targeting corrupt Democratic politicians and
investigating others. Therefore, her removal under these circumstances and replacement by an Obama appointee would be
“unseemly.” Martin has enlisted the support of Alabama Republican Sen. Jeff Sessions, a member of the Judiciary Committee, in
her bid to become a holdover. Alabama Democrats, however, led by Cong. Artur Davis do not cotton to Martin’s scheme. They
recently sent the Obama transition team a slate of recommendations, focusing on candidates with strong federal prosecutorial
experience and a minimum of political baggage.
But Buchanan and Martin seem to be bucking for a fight. Do they want to be fired? So far, it looks like they’re daring Obama to
fire them. The fireworks may last beyond Inauguration Day.
Scott Horton is a law professor and writer on legal and national security affairs for Harper's Magazine and The American
Lawyer, among other publications