Dismissal of U.S. attorneys controversy

The dismissal of U.S. Attorneys controversy, also referred to as Attorneygate, is an ongoing political dispute concerning the dismissal of eight United States Attorneys by the George W. Bush administration in late 2006 and early 2007. The controversy received nationwide attention in March 2007. Multiple news organizations, as well as administration critics, have described it as a full-blown "scandal" or "furor". Attorney General Alberto Gonzales described it as "an overblown personnel matter."

The dismissed United States Attorneys had been appointed by President George W. Bush and confirmed by the Senate. A key issue in the controversy is the political nature of any Senate-confirmed appointment to office, and the 2006 revision of the USA PATRIOT Act, amending the United States Code to permit the term of an interim U.S. Attorney to last until a presidentially nominated replacement is approved by the Senate: the amendment gives the United States Attorney General (the Presidential Cabinet officer authorized to appoint interim U.S. Attorneys) the power to appoint U.S. Attorneys without Senate approval. On March 20, 2007, the Senate voted to overturn this provision by a vote of 94-2. On March 26, the U.S. House overturned it as well, by a vote of 329-78.

Another concern involves the actual reasons for the dismissals. Critics say that the attorneys were fired for failing to prosecute enough Democrats (at the request of Pete Domenici and Heather Wilson), or as retribution for prosecuting Republicans (such as the prosecution of Randy Cunningham by Carol Lam or the investigation of Rick Renzi by Paul Charlton). The administration and its supporters say the attorneys were dismissed for job-performance reasons "related to policy, priorities and management", and that United States Attorneys serve at the pleasure of the president. Under U.S. law the President has discretion to dismiss these Attorneys for any reason, though legal scholars have stated that firing attorneys to block investigations and pursue political retribution could violate the duty of the President to faithfully execute the laws under the constitution and could be construed as "corrupting" a government proceeding in violation of federal law. Congresspeople investigating the reasons for the dismissals contend that sworn testimony from Department of Justice officials contradicts internal Department memos and e-mails, possibly indicating that Congress was deliberately misled. The Bush administration has issued changing and contradictory statements about the timeline of the planning of the firings, persons who ordered the firings, and reasons for the firings.

Events

Background

The President of the United States has the authority to appoint U.S. Attorneys, with the consent of the Senate, and the President may remove U.S. Attorneys from office. The United States Attorney General is authorized to appoint interim U.S. Attorneys. Before March 9, 2006, such interim appointments expired after 120 days, if a Presidential appointment had not been approved by the Senate. Vacancies that persisted beyond 120 days were filled through interim appointments made by the federal district court for the district of the vacant office.

March 2006 revisions to interim appointment process

On March 9, 2006, the USA PATRIOT Act Improvement and Reauthorization Act of 2005 was signed into law. The act amended the law for the interim appointment of U.S. Attorneys by deleting two provisions: (a) the 120-day maximum term for the Attorney General's interim appointees, and (b) the subsequent interim appointment authority of Federal District Courts. With the revision, an interim appointee can potentially serve indefinitely (though still removable by the President), if the President declines to nominate a U.S. Attorney for a vacancy, or the Senate either fails to act on a Presidential nomination, or rejects a nominee that is different than the interim appointee. The change was written into the bill by Republican Senator Arlen Specter. During Senate hearings on February 6, 2007, Senator Specter claimed that a former committee staffer (subsequently Pesidentially nominated, and Senate approved United States Attorney for the United States District Court for the District of Utah, Brett Tolman), had slipped in the new clause on behalf of the Department of Justice. (The text to the statute (U.S.C Title 28, Section 546), and its amendments, may be found in the last section of this article, before footnotes.)

Kyle Sampson, Alberto Gonzales's chief of staff, strongly urged using this law to bypass Congressional confirmation. Sampson wrote in a Sept. 17 memo to Harriet Miers. "I am only in favor of executing on a plan to push some USAs out if we really are ready and willing to put in the time necessary to select candidates and get them appointed...It will be counterproductive to DOJ operations if we push USAs out and then don't have replacements ready to roll immediately...I strongly recommend that as a matter of administration, we utilize the new statutory provisions that authorize the AG to make USA appointments...[By avoiding Senate confirmation] we can give far less deference to home state senators and thereby get 1.) our preferred person appointed and 2.) do it far faster and more efficiently at less political costs to the White House."

On September 22, 2006, Alberto Gonzales appointed Jeffrey A. Taylor as interim U.S. Attorney for the District of Columbia under these USA PATRIOT Act provisions. He was sworn in without Senate confirmation seven days later.

On March 20, 2007, the Senate voted 94-2 to rescind the president's authority to appoint attorneys without oversight. On March 26, the U.S. House overturned it as well, by a vote of 329-78.

Planning

Karl Rove.

Alberto Gonzales.

In January 2005, deputy White House chief of staff Karl Rove asked deputy counsel David Leitch "how we planned to proceed regarding U.S. Attorneys, whether we were going to allow all to stay, request resignations from all and accept only some of them, or selectively replace them, etc." In reply, White House counsel Kyle Sampson wrote that it would be "weird to ask them to leave before completing at least a 4-year term", that they "would like to replace 15–20 percent of the current U.S. Attorneys" and that the rest "are doing a great job, are loyal Bushies, etc."

Shortly afterwards, "Sampson, chief of staff to Attorney General Alberto R. Gonzales, came up with a checklist. He rated each of the U.S. attorneys with criteria that appeared to value political allegiance as much as job performance. He recommended retaining 'strong U.S. Attorneys who have ... exhibited loyalty to the President and Attorney General.' He suggested 'removing weak U.S. Attorneys who have ... chafed against Administration initiatives'".

Sampson wrote in January 2006 to White House counsel Harriet Miers that he recommended that the Department of Justice and the Office of the Counsel to the President work together to seek the replacement of a limited number of U.S. Attorneys, and that by limiting the number of attorneys "targeted for removal and replacement" it would "mitigat[e] the shock to the system that would result from an across-the-board firing."

In October 2006, George W. Bush told Alberto Gonzales that he had received complaints that some of the U.S. Attorneys had not pursued certain voter-fraud investigations. The complaints came from Republican officials, who demanded fraud investigations into a number of Democratic campaigns. The 2006 United States general election was forthcoming (November) and Republicans were concerned about losing Congressional seats to Democrats. (The election in fact did overturn Congressional control to the Democratic party).

Furthermore, "The documents show that in one case, officials were eager to free up the prosecutor’s slot in Little Rock, Ark., so it could be filled by Timothy Griffin, a GOP operative close to White House political guru Karl Rove — at all costs." According to Newsweek, "Kyle Sampson, Gonzales's chief of staff, developed the list of eight prosecutors to be fired last October—with input from the White House."

On November 27, 2006, Gonzales met with senior advisors to discuss the plan. The Justice Department did not receive White House approval for the firings until early December. As late as December 2, Sampson had written to Michael Elston that the Justice department was "[s]till waiting for green light from White House" with regards to the firing. Deputy White House counsel William K. Kelley responded on December 4, 2006, stating that "We're a go for the U.S. Atty plan...[the White House office of legislative affairs], political, communications have signed off and acknowledged that we have to be committed to following through once the pressure comes."

On December 7, 2006, Justice Department official Michael A. Battle informed the US Attorneys that they were being fired.

The White House had originally suggested that the plan came from Harriet Miers who had already left the White House in January 2007, before the dismissal received public attention.

The attorneys dismissed were:

Fired Attorney	District	Interim Replacement
H. E. Cummins III	Eastern District of Arkansas	Timothy Griffin
Kevin V. Ryan	Northern District of California	Scott Schools
Daniel Bogden	District of Nevada	Steven Myhre
Carol Lam	Southern District of California	Karen Hewitt
David Iglesias	District of New Mexico	Larry Gomez
Paul K. Charlton	District of Arizona	Daniel G. Knauss
John McKay	Western District of Washington	Jeffrey C. Sullivan
Margaret Chiara	Western District of Michigan	Russell C. Stoddard

Reactions and congressional investigation

Continued press coverage ultimately led to Congressional involvement. Deputy Attorney General Paul McNulty was called onto the Hill. He underscored that the seven were fired for job performance issues, and not political considerations. The next day, McNulty admitted that at least six of the seven had recently received outstanding job performance ratings, and that the United States Attorney in Arkansas (Cummins) was removed for no reason except to install a former aide to Karl Rove: 37-year-old Timothy Griffin, a former Republican National Committee opposition research director. Cummins, apparently, "was ousted after Harriet E. Miers, the former White House counsel, intervened on behalf of Griffin." Less than two weeks after McNulty's admission, Griffin announced that he would not seek the nomination to be chief federal prosecutor in Little Rock.

In January 2007, the Las Vegas Review-Journal reported that "A GOP source [had indicated] that the decision to remove U.S. attorneys, primarily in the West, was part of a plan to 'give somebody else that experience' to build up the back bench of Republicans by giving them high-profile jobs." McClatchey Newspapers noted that, "The newly appointed U.S. attorneys all have impressive legal credentials, but most of them have few, if any, ties to the communities they've been appointed to serve, and some have had little experience as prosecutors. The nine recent appointees identified [as replacements] held high-level White House or Justice Department jobs, and most of them were handpicked by Gonzales...Being named a U.S. attorney 'has become a prize for doing the bidding of the White House or administration,' said Laurie Levenson, a former federal prosecutor who's now a professor at the Loyola Law School in Los Angeles." Salon reported: "at least three of the eight fired attorneys were told by a superior they were being forced to resign to make jobs available for other Bush appointees, according to a former senior Justice Department official knowledgeable about their cases."

On March 6, 2007, Gonzales responded to the controversy in an editorial in USA Today in which he said, "To be clear, [the firing] was for reasons related to policy, priorities and management — what have been referred to broadly as "performance-related" reasons — that seven U.S. attorneys were asked to resign last December...We have never asked a U.S. attorney to resign in an effort to retaliate against him or her or to inappropriately interfere with a public corruption case (or any other type of case, for that matter). Like me, U.S. attorneys are political appointees, and we all serve at the pleasure of the president. If U.S. attorneys are not executing their responsibilities in a manner that furthers the management and policy goals of departmental leadership, it is appropriate that they be replaced...While I am grateful for the public service of these seven U.S. attorneys, they simply lost my confidence. I hope that this episode ultimately will be recognized for what it is: an overblown personnel matter."

On March 12, 2007, Sampson resigned from the Department of Justice. On March 13, 2007. Gonzales stated in a news conference that he accepted responsibility for mistakes made in the dismissal and rejected calls for his resignation that Democratic members of Congress had been making. He also stood by his decision to dismiss the attorneys "I stand by the decision and I think it was the right decision," Gonzales said. However, at a March 13 press conference, Gonzales admitted that "incomplete information was communicated or may have been communicated to Congress" by Justice Department officials.

Gonzales lost more support when records subsequently challenged some of this statements at the March 13 press conference. At that press conference he stated: "I never saw documents. We never had a discussion about where things stood." But DOJ records released on March 23 showed that on his Nov. 27 schedule "he attended an hour-long meeting at which, aides said, he approved a detailed plan for executing the purge.".

Although the Department of Justice released 3,000 pages of its internal communications related to this issue, none of those documents discussed anything related to a performance review process for these attorneys before they were fired. Questions were also raised regarding the use of non governmental emails. For example, J. Scott Jennings, and aide to Karl Rove communicated with Justice Department officials "concerning the appointment of Tim Griffin, a former Rove aide, as U.S. attorney in Little Rock, according to e-mails released [in March, 2007]. For that exchange, Jennings, although working at the White House, used an e-mail account registered to the Republican National Committee, where Griffin had worked as a political opposition researcher."

On March 14, 2007, Republican Senator John E. Sununu of New Hampshire became the first Republican lawmaker to call for Gonzales' resignation. Sununu cited not only the controversial firings but growing concern over the use of the USA PATRIOT Act and misuse of national security letters by the FBI. As of March 15, 2007, at least twelve Senators and one Member of the House of Representatives — including Hillary Clinton and Mark Pryor — have called for his resignation. (See Alberto Gonzales#Calls for resignation or firing for further information on calls for resignation)

Senate Judiciary Committee Chairman Patrick Leahy stated that Congress has the authority to subpoena Justice Department and White House officials including chief political advisor to the president Karl Rove and former White House counsel Harriet Miers. On March 21, 2007, the House Judiciary Committee authorized the subpoena of five Justice Department officials. On March 22, 2007, the Senate Judiciary Committee authorized subpoenas as well. While authorized, as of March 22, 2007, no subpoenas had been issued. On March 20, 2007, President Bush declared in a press conference that his aides would not testify under oath on the matter if subpoenaed by Congress.

Subpoenas and lost emails

Main article: 2007 Whitehouse email controversy

On April 10, 2007, the House Judiciary Committee issued a subpoena for documents from Gonzales that included the full text of all documents that had been partially or completely blacked out in the DOJ's previous release of documents.

Rep. John Conyers wrote in a letter accompnaying the subpoena "We have been patient in allowing the department to work through its concerns regarding the sensitive nature of some of these materials...Unfortunately, the department has not indicated any meaningful willingness to find a way to meet our legitimate needs...At this point further delay in receiving these materials will not serve any constructive purpose."

The Justice Department spokesman, Brian Roehrkasse, responded to the subpoena stating that the administration would like "to reach an accommodation with the Congress" but that it might not be possible. "Much of the information that the Congress seeks pertains to individuals other than the U.S. attorneys who resigned...Furthermore, many of the documents Congress is now seeking have already been available to them for review. Because there are individual privacy interests implicated by publicly releasing this information, it is unfortunate the Congress would choose this option." said Roehrkasse. Later that day a White House spokesman stated that some of the emails that had invovled official correspondance relating to the firing of attorneys may have been lost because they were conducted on Republican party accounts and not stored properly. "Some official e-mails have potentially been lost and that is a mistake the White House is aggressively working to correct." said Scott Stanzel, a White House spokesman. Stonzel said that they could not rule out the possibility that some of the lost emails dealt with the firing of U.S. attorneys.

Congressional hearings of Sampson and Goodling

Sampson and Goodling were scheduled to appear at a Congressional hearing on March 29 (without having been subpoenaed), but on March 26, 2007, Goodling cancelled, citing the Fifth Amendment right against self-incrimination..

Sampson Congresional testimony

Sampson appeared before the Senate Judiciary Committee on March 29, 2007 to discuss the firings. At that hearing, Sampson stated that, contrary to Attorney General Alberto Gonzales's prior statements, the Attorney General had been involved in the final decision to dismiss the US Attorneys. "I don't think the attorney general's statement that he was not involved in any discussions of U.S. attorney removals was accurate...I remember discussing with him this process of asking certain U.S. attorneys to resign."

In response Gonzales stated "I don't recall being involved in deliberations involving the question of whether or not a U.S. attorney should or should not be asked to resign...I signed off on the recommendations and signed off on the implementation plan. And that's the extent of my involvement...I know what I did and I know the motivations for the decisions that I made were not based on improper reasons."

In a press conference on April 3, 2007, President Bush responded to questions about the attorney general and the ongoing controversy by stating: "Attorney General Al Gonzales is an honorable and honest man and he has my full confidence...I will remind you there is no credible evidence that there has been any wrongdoing...I appreciate [the dismissed US Attorney's] service. I'm sorry that these hearings and all this stuff have besmirched their reputations. It's certainly not the intent of anybody in this administration."

Goodling Congressional Testimony

Monica Goodling served in the Department of Justice and was the Justice Department's liason to the White House. As such, she had helped coordinate the dismissal of the attorneys with the White House.

Congress had called Goodling to testify regarding her role in the dismissals, but after originally agreeing to appear, Goodling cancelled, citing the Fifth Amendment right against self-incrimination..

On April 6, 2007, Monica Goodling resigned from her position at the Department of Justice. Goodling stating in her three-sentence resignation letter to Mr. Gonzales “May God bless you richly as you continue your service to America.”

Details about individual attorneys

Bud Cummins

Bud Cummins

Bud Cummins had been investigating Republican Missouri Governor Matt Blunt's Administration to see if he "abused his power by forming a system of umbrella companies established through [the] Kansas City law firm Lathrop & Gage LC to run the state’s licensing network." The investigation stopped when Cummins was fired. He was replaced with Timothy Griffin, a controversial former Karl Rove aide.

Cummins told the Senate Judiciary Committee "that Mike Elston, the deputy attorney general's top aide, threatened him with retaliation in a phone call last month if he went public." Emails show that Cummins passed on the warning to some of the other Attorneys who were fired. Elston acknowledges he told Cummins that he said "it's really a shame that all this has to come out in the newspaper," but claimed that this was not intended as a threat.

On March 23, 2007, the Washington Post reported that "New documents also show that Justice and White House officials were preparing for President Bush's approval of the appointment as early as last summer, five months before Griffin took the job." According to that article the e-mails are "evidence [that] runs contrary to assurances from Attorney General Alberto R. Gonzales that no such move had been planned."

Carol Lam

Carol C. Lam

The best known of the dismissed U.S. attorneys was Carol Lam, who had successfully prosecuted then Republican Congressman Duke Cunningham for corruption. On May 11, 2006, the Los Angeles Times reported that her investigation had expanded to investigate Jerry Lewis, then chair of the House Appropriations Committee. On May 10, 2006, Lam had also notified the Justice Department that she intended to execute search warrants on a high-ranking CIA official. On May 11, Kyle Sampson urged the White House counsel's office to call him regarding "the real problem we have right now with Carol Lam." She continued to work as the events unfolded and ordered her staff to finish with the indictments they were working on before her last day in office. In February 2007, two days before her last, her office indicted Dusty Foggo, the former Executive Director of the Central Intelligence Agency, and a major campaign contributor Brent Wilkes (who was previously named on Cunningham's guilty plea).

Kyle Sampson responded to the accusation that his statement that the "real problem" with Lam dealt with the Cunningham investigation. In his testimony before the Congress, Sampson stated that "There was never any connection in my mind between asking Carol Lam to resign and the public corruption case that her office was working on...The real problem ... was her office's prosecution of immigration cases." Sampson went on to say in his testimony that he was not aware of the connection between Lam and the Cunningham investigation. Sampson said, "I don't remember ever hearing about those searches, and I certainly didn't associate in my mind the idea of asking Carol Lam to resign with the fact that her office was doing an investigation of Mr. Foggo and Mr. Wilkes...That office's investigation and prosecution of Duke Cunningham was a good thing."

North County Times has quoted Republican Congressman Darrell Issa stating that he takes "maybe one-twentieth" of the responsibility for Lam's firing. On March 6,2007, Issa made a statement at the United States House Committee on the Judiciary hearing. Justice Department officials told Senator Charles Schumer that Lam and others were terminated because of "performance-related" issues. However, Deputy Attorney General Paul McNulty later "called [Schumer] on the phone and said, 'I am sorry that I didn't tell you the truth.'"

David Iglesias

David Iglesias

Allen Weh, chairman of the New Mexico Republican Party, said he complained in 2005 about then-U.S. Attorney David Iglesias to a White House aide for Karl Rove, asking that Iglesias be removed. Then in 2006 Rove personally told Weh “He’s gone.” Weh was dissatisfied with Iglesias due in part to his failure to indict Democrats in a voter fraud investigation. Weh followed up with, "There’s nothing we’ve done that’s wrong." In March 2007, the White House spokeswoman, Dana Perino, said Rove "wasn’t involved in who was going to be fired or hired." However, one of the stated reasons for Iglesias' dismissal, by Administration officials, was dissatisfaction in his prosecution of voter-fraud cases. Nevertheless, Iglesias "had been heralded for his expertise in that area by the Justice Department, which twice selected him to train other federal prosecutors to pursue election crimes" and was "one of two chief federal prosecutors invited to teach at a 'voting integrity symposium' in October 2005... sponsored by Justice's public integrity and civil rights sections."

In February 2007 Iglesias publicly alleged that "two lawmakers called him about a well-known criminal investigation involving a Democratic legislator" and that "the lawmakers who called him seemed focused on whether charges would be filed before the November elections. He said the calls made him feel 'pressured to hurry the subsequent cases and prosecutions.'" (U.S. Attorneys in Arizona, Nevada and California were also conducting corruption probes involving Republicans at the time of their dismissals.) According to and later confirmed prior to the 2006 midterm election, Heather Wilson and Pete Domenici called and "pressured" Iglesias "to speed up indictments in a federal corruption investigation that involved at least one former Democratic state senator." When Iglesias told Domenici that an indictment wouldn't be handed down until at least December, Iglesias said "the line went dead," and he was fired one week later by the Bush Administration. After intially denying the call, Domenici admitted making it in March 2007. According to the Washington Post, "A communication by a senator or House member with a federal prosecutor regarding an ongoing criminal investigation is a violation of ethics rules." Domenici admitted calling Iglesias despite the initial denial, but Domenici said he never used the word "November" when he called Iglesias about an ongoing Albuquerque courthouse corruption case. Domenici has denied trying to influence Iglesias, and has hired lawyer K. Lee Blalack II to represent him. According to the Justice Department, Domenici called the Department and demanded Iglesias be replaced on four occasions. On the day that Iglesias was fired, Harriet Miers' deputy William Kelley wrote that Domenici's chief of staff "is happy as a clam" about Iglesias and a week later Sampson wrote that "Domenici is going to send over names tomorrow (not even waiting for Iglesias's body to cool).

DOJ also received complaints from "two prominent Republican attorneys, Mickey Barnett and Patrick J. Rogers, [who] met last June with Gonzales's senior counsel, Monica Goodling, to complain that Iglesias was inattentive to voter fraud. Goodling met with them after a Kyle Sampson sent her an email saying, "It is sensitive -- perhaps you should do it."

House Judiciary Committee Chairman John Conyers, D-Mich., issued subpoenas on March 1 requiring Iglesias, among other recently ousted U.S. attorneys, to testify before Congress about their firings. Then on March 21, Iglesias wrote an opinion piece that was published in the New York Times. In that article he stated that "it seems clear that politics played a role in the ousters...[M]y name was added to a list of United States attorneys who would be asked to resign — even though I had excellent office evaluations, the biggest political corruption prosecutions in New Mexico history, a record number of overall prosecutions and a 95 percent conviction rate. (In one of the documents released this week, I was deemed a “diverse up and comer” in 2004. Two years later I was asked to resign with no reasons given.)...[the fired U.S. attorneys] had apparently been singled out for political reasons."

In addition, Iglesias responded to critics about his failure to pursue voter fraud cases: "As this story has unfolded these last few weeks, much has been made of my decision to not prosecute alleged voter fraud in New Mexico. Without the benefit of reviewing evidence gleaned from F.B.I. investigative reports, party officials in my state have said that I should have begun a prosecution...After reviewing more than 100 complaints of voter fraud, I felt there was one possible case that should be prosecuted federally. I worked with the F.B.I. and the Justice Department’s public integrity section. As much as I wanted to prosecute the case, I could not overcome evidentiary problems. The Justice Department and the F.B.I. did not disagree with my decision in the end not to prosecute."

John McKay

John McKay

Until his dismissal, John McKay received very positive evaluations for his work, including the successful prosecution of terrorist Ahmed Ressam, and the Navy's highest civilian honor for promoting a computer network co-ordinating law enforcement agencies. In February, the Seattle Times noted that "One of the most persistent rumors in Seattle legal circles is that the Justice Department forced McKay, a Republican, to resign to appease Washington state Republicans angry over the 2004 governor's race. Some believe McKay's dismissal was retribution for his failure to convene a federal grand jury to investigate allegations of voter fraud in the race." On March 17, 2007, the Seattle Times reported, "Former Republican congressman Rick White, one of three candidates the Republicans have submitted to replace John McKay as U.S. attorney for Western Washington, cannot practice law in the state."

In a March 20, 2007 interview, McKay said that “Gonzales the attorney general...He’s accountable. The fact that he’s presiding over a department that did not defend the independence of its prosecutors is a grievous error.” McKay also recalled a call from the chief of staff of Congressman Doc Hastings (R-WA) inquiring into the investigation.

McKay disputed that his firing was based on his support of a proposed information sharing system for federal and state law enforcement, which some DOJ e-mails have suggested. “When they go back and keep shifting stories it tends to indicate there’s a more nefarious reason that they’re not willing to admit to...That’s the real problem, and in my case it may be true because if they put me on that list because I wasn’t aggressive enough in ensuring that the Republican candidate for governor was elected, then that’s a terrible thing. I still haven’t seen clear evidence of that, but the timing is very suspicious.” McKay stated.

Prior to his firing McKay had been up for a federal judge position, but had been opposed by all three Republicans on the committee. McKay said that he was told by a source that “the explanation for why I was not one of the three finalists was that I had mishandled the 2004 governor’s election.” McKay also stated that in his judgeship interview the first question he was asked was about the 2004 race. “I’m in the White House on Aug. 22, I’m on the list [to be fired] on Sept. 13...I might still be United States attorney if I hadn’t applied to be a judge.”

McKay reported a similar call from Mike Elston, the deputy attorney general's top aide, as Cummings did. McKay stated that after he was fired in December he received a call from a "clearly nervous" Elston. McKay charged that "(Elston) was offering me a deal: you stay silent and the attorney general won't say anything bad about you." Elston responded to this accusation by stating that he "can't imagine" how McKay got that impression and that the call was meant to reassure McKay that the details of his termination would not be discussed.

Daniel Bogden

Daniel Bogden was the United States Attorney for the District of Nevada. Justice officials initially told Congress that his dismissal was "performance reasons." But Deputy Attorney General William Moschella later told a House subcommittee "no particular deficiencies" in Bogden's performance existed. In November of 2006, Bogden referred to the FBI allegations that Republican Congressman Jon Porter had committed campaign finance crimes by making fundraising calls from his government offices. It was during Bogden's tenure that former Congressman (now Nevada Governor) Jim Gibbons was the subject of a federal investigation into suspected bribes by the owner of a defense contractor for which Gibbons had earmarked several millions of dollars.

Emails disclosed to Congress revealed that Deputy Attorney General Paul McNulty told Kyle Sampson, Alberto Gonzales's chief of staff, that he had second thoughts about the firing of Bodgen. Bogden's record showed no obvious problems with performance or differences in policy. McNulty stated in the e-mail on December 5, 2006 that he was "a little skittish about Bogden...He has been with DOJ since 1990 and, at age 50, has never had a job outside of government. My guess is he was hoping to ride this out well into '09 or beyond. I'll admit [I] have not looked at his district's performance."

When Bogden was fired, Senator John Ensign, who had originally nominated him, was decidedly unhappy, particularly after hearing explanations by the Justice Department of the reasons. Ensign commented: "What the Justice Department testified yesterday is inconsistent with what they told me. I can't even tell you how upset I am at the Justice Department." A week later, Ensign said "I'm calling on the President of the United States and the attorney general to restore Dan Bogden's reputation....Everyone in Nevada thought Dan had done a superb job....I believe a very good man was wronged and a process was flawed."

Paul Charlton

Paul Charlton

Paul Charlton's Arizona office had been honored with the Federal Service Award and hailed by the Justice Department as a "model program" for its protection of crime victims. Charlton ranked in the top third among the nation's 93 U.S. attorneys in contributing to an overall 106,188 federal prosecutions filed in 2006; scored in the top third in number of convictions; oversaw a district in the top five highest in number of immigration-related prosecutions; ranked among the top 20 offices for drug prosecutions; and, unlike in the other seven cases, ranked high in weapons cases, prosecuting 199 of the United States' 9,313 such cases in 2006, the tenth-highest in the country and up four-fold from 2002.

In February 2005, Charlton had been on the "retain" list of Kyle Sampson, Attorney General Alberto Gonzalez's chief of staff, but in September of 2006 Sampson included the Arizona prosecutor on another list of U.S. attorneys 'we now should consider pushing out.'" Some have insinuated that the change in the status of Charlton might have been related to Charlton's launching an investigation of Rep. Rick Renzi, R-Ariz after his previous "retain" ranking in February 2005, but there is no direct evidence of this relation. Sampson made the comment in a Sept. 13, 2006, letter to then-White House Counsel Harriet Miers. Charlton announced his resignation on December 19, 2006.

On March 19, 2007, the White House released 3,000 pages of records connected to the controversy, including e-mails sent by Charlton to the Justice Department about his dismissal. On Dec. 21, 2006, Charlton sent a message to Bill Mercer, the third-ranking official in the department, writing, "Media now asking if I was asked to resign over leak in Congressman Renzi investigation." Charlton never received a response.

A second motivation for removing Charlton may have been the suggestions of Justice official Brent Ward, who said in a September 20, 2006, e-mail that Charlton was "unwilling to take good cases." Ward's reason for discounting Charlton appeared to be the U.S. attorney's reluctance to pursue obscenity charges against adult video manufacturers in connection to Attorney General Alberto Gonzales's Obscenity Prosecution Task Force.

Charlton had clashed with the Bush Administration over the death penalty; in at least two cases he did not seek capital punishment but was overruled from Washington.

After a disagreement over tape-recording interviews and confessions by the FBI on American Indian reservations, which Charlton supported and the Justice Department opposed, Charlton offered to resign. In his congressional testimony on March 6, 2007, Charlton said he found "no small amount of irony" in the fact that he was eventually fired.

Kevin Ryan

Kevin Ryan

The LA Times reported on March 22, 2007, that Kevin Ryan was a loyal Bush supporter and that the only reason the DOJ fired him was because his poor performance could cause a public relations problem. The Times reported that Ryan's problems in office were "well documented in legal newspapers" but that "Justice officials wanted to keep Ryan on, even as they plotted the firings of other U.S. attorneys." The article goes on to state that it was only after a judge threatened to report this information to Congress publicly that Ryan was put on the list to be fired.

Margaret Chiara

On March 23, 2007, the New York Times reported that Margaret Chiara, the former U.S. Attorney for western Michigan, was told by a senior Justice Department official that she was being removed to make way for a new attorney that the Bush administration wanted to groom. “To say it was about politics may not be pleasant, but at least it is truthful,” Chiara said. “Poor performance was not a truthful explanation.” AP reported that during her tenure, "the jurisdiction has seen a 15 percent increase in felony prosecutions and convictions. She developed an attorney training and mentoring program that now serves as a national model, her office said."

Chiara wrote in an email recounting her conversation with Elston that he told her that she had “erroneously assumed that good service guaranteed longevity,” and noted that she and other prosecutors were “being asked for their resignations without good cause.”

Other related controversial actions under Bush presidency

DiBiagio firing

After the revelations of the other firings, Thomas M. DiBiagio, the Maryland U.S. Attorney, stated in March 2007 that he had been ousted in 2005 because of political pressure over public corruption investigations into the administration of then-Gov. Robert L. Ehrlich Jr.

Steve Biskupic

Main article: Georgia Thompson

Under Steve Biskupic, Georgia Thompson was convicted for corruption charges related to a Democratic governor, but they were thrown out after 20 minutes of discussion at the appealette court. Congresswoman Tammy Baldwin has called for investigation in conjuction with current inquiry with the United States Attorney's Office. Biskupic says he will fully cooperate with an inquiry.

In April, Senate Democrats asked whether U.S. Attorney Biskupic was pressured by the White House or the Justice Department to prosecute Georgia Thompson, whose conviction was overturned on appeal. Jurors defended their verdict, and some Democrats, including former Wisconsin Attorney General Peg Lautenschlager, who conducted a parallel investigation, said that Biskupic was not politically motivated. Thompson made no statement to the media.

A former U.S. Attorney who is a professor at the University of Wisconsin Law School, Frank Tuerkheimer, said he could not recall another case "where an appellate court after hearing oral arguments ordered the release of a person who's confined" that same day. A former Assistant U.S. Attorney who is a Madison lawyer, Chris Van Wagner, predicted a "strongly worded" written opinion telling the goverment, "You never had enough to get out of the starting gate." Another law professor could think of only one other case where a defendant was freed immediately rather than given a new trial.

The Senate Judiciary Committee delivered a letter to United States Attorney General Alberto Gonzales asking for documents in the case.

Black demotion

On August 8, 2005, the Los Angeles Times reported that the day after a grand jury subpoena of records connected to Jack Abramoff "U.S. Attorney Frederick A. Black, who had launched the investigation, was demoted. A White House news release announced that Bush was replacing Black." His replacement, Leonardo Rapadas, recommended for the job by the Guam Republican Party, was confirmed without any debate. The investigation of Abramoff in Guam ended when "Rapadas recused himself from the public corruption case involving [Carl] Gutierrez" because "the new U.S. attorney was a cousin of 'one of the main targets'," according to a confidential memo to Justice Department officials."

Yang resignation

On March 21, 2007, Senator Diane Feinstein Feinstein, D-Calif. said she would inquire into whether Debra Wong Yang, the former U.S. attorney in Los Angeles, was forced to leave her job late last year.. Yang had previously investigated Rep. Jerry Lewis on the use of earmarks and his relationships with lobbyists and defense contractors. In November, Yang left the DOJ to work at Gibson, Dunn and Crutcher, the same firm who is defending Lewis in the investigation. Yang has stated that she left on her own accord and there has been no evidence presented that she was forced out for her investigation

Resigning of Minneapolis Deputies

On April 6, 2007, top deputies to Rachel K. Paulose, who had been sworn in as the US Attorney for Minneapolis on March 9, 2007, stepped down from their leadership positions and back into their nonsupervisory role within the office. The New York Times reported that associates to the attorneys said this move was in protest to the "ideologically driven and dictatorial managerial style" of Paulose.. The deputies were "John Marti, the top assistant prosecutor; Erika R. Mozangue, chief of the office’s civil division; and James E. Lackner."

Department of Justice resignations

There have been several resignations of officials. Kyle Sampson, Gonzales's chief of staff resigned March 12, 2007. Michael A. Battle then resigned his position of Director of the Executive Office for United States Attorneys (EOUSA) on March 16, 2007. On March 26, 2007 it was announced Monica Goodling, took leave from her job as counsel to the attorney general and as the Justice Department's liaison to the White House. On April 6, 2007, Ms. Goodling announced her resignation from the Department of Justice. Various Democrats and Republicans have called for UDA Gonzales to resign. (See also Alberto Gonzales: Calls for resignation or firing)

Terminations under previous administrations

Background

In contrast to the 2006 dismissals, prior White House administrations typically "clean house" only at the start of their administration. Presidents rarely dismiss U.S. attorneys they appoint, and extremely rarely do Presidents dismiss several U.S attorney appointees in a short period of time. Also, second-term Presidents have rarely replaced U.S. attorneys appointed during their first term. McClatchy Newspapers explains: "Mass firings of U.S. attorneys are fairly common when a new president takes office, but not in a second-term administration. Prosecutors are usually appointed for four-year terms, but they are usually allowed to stay on the job if the president who appointed them is re-elected."

Change of presidential administrations

At the beginning of a new presidential administration, it is traditional for occupants of "political" offices to submit a letter of resignation. For example, when President George W. Bush took office in 2001, he had received the resignations from nearly one-third of the 93 sitting U.S. attorneys by January 2001. For the remaining two thirds of the offices, as of March 2001, plans had been made to schedule the placement of a new Presidential appointee (or interim U.S. attorney, appointed by then Attorney General John Ashcroft) by June 2001. A political office is generally considered one that the occupant "serves at the pleasure of the President." When a new President is elected, from a different party, it is expected that all of the resignations would be accepted. The attorneys are then replaced by new political appointees, typically from the new President's party. President Clinton asked for resignations from all 93 U.S. attorneys at the beginning of his term, although only 80 of 93 were actually replaced in the first year. Other Presidents have installed their team by transitioning in replacements as the terms expired for the preceding administration's U.S. Attorneys.

An L.A. Times article, citing a Senate study noted: "Reagan replaced 89 of the 93 U.S. attorneys in his first two years in office. President Clinton had 89 new U.S. attorneys in his first two years, and President Bush had 88 new U.S. attorneys in his first two years," and citing a Department of Justice list, noted that "in 1981, Reagan's first year in office, 71 of 93 districts had new U.S. attorneys. In 1993, Clinton's first year, 80 of 93 districts had new U.S. attorneys."

Mid-administration dismissals

Since 1978, until 2006, at least four U.S. Attorneys have been "forced out" in the middle of a President's term and before the U.S. Attorney's four-year term had expired. Kyle Sampson noted in a January 9, 2006, e-mail to Harriet Miers in reference to what action the current President George W. Bush should take regarding his appointed US Attorneys: "In recent memory, during the Reagan and Clinton Administrations, Presidents Reagan and Clinton did not seek to remove and replace U.S. Attorneys to serve indefinitely under the holdover provision." (underlining original)

The Congressional Research Service, a public policy research arm of Congress, investigated the precedent of U.S. Attorneys who have not served their full four-year terms from 1981 through 2006. Over the 25-year period studied, the investigation identified 54 attorneys who did not serve their full term. Of these, the report only found evidence of two attorneys being involuntarily dismissed: William Kennedy (dismissed in 1982) and J. William Petro (in 1984). Both were Reagan appointees. Note however, that all of the U.S. Attorneys dismissed in this controversy were in office longer than four years, while in "holdover," beyond the scope of the Congressional Research Service study.

Notable past firings by previous administrations

President Carter replaced David Marston, the U.S. Attorney who was investigating kickbacks at the Hahneman Hospital in Philadelphia. At the time, Marston was conducting an investigation into charges against Democratic Representatives Joshua Eilberg (who requested Carter terminate Marston) and Daniel Flood.

At the beginning of his term President Clinton requested resignations from all U.S. Attorneys appointed by the prior administration. One of those attorneys, Jay Stephens, US Attorney for the District of Columbia, at the time was investigating the then Ways and Means Chairman Dan Rostenkowski for allegedly misusing his $1.3 million campaign fund. Clinton subsequently appointed Eric Holder, who indicted Rostenkowski in the summer of 1994 for fraud.

Law references

Part of the governing federal law for appointing United States Attorneys.

Statute, prior to March 9, 2006 amendments

Title 28 § 546. Vacancies

(a) Except as provided in subsection (b), the Attorney General may appoint a United States attorney for the district in which the office of United States attorney is vacant.

(b) The Attorney General shall not appoint as United States attorney a person to whose appointment by the President to that office the Senate refused to give advice and consent.

(c) A person appointed as United States attorney under this section may serve until the earlier of—

(1) the qualification of a United States attorney for such district appointed by the President under section 541 of this title; or

(2) the expiration of 120 days after appointment by the Attorney General under this section.

(d) If an appointment expires under subsection (c)(2), the district court for such district may appoint a United States attorney to serve until the vacancy is filled. The order of appointment by the court shall be filed with the clerk of the court.

28 U.S.C. § 546 (2000 ed., Supp IV).

USA PATRIOT Act reauthorization

SEC. 502. INTERIM APPOINTMENT OF UNITED STATES ATTORNEYS.

Section 546 of title 28, United States Code, is amended by striking subsections (c) and (d) and inserting the following new subsection:

'(c) A person appointed as United States attorney under this section may serve until the qualification of a United States Attorney for such district appointed by the President under section 541 of this title.'

Statute from March 9, 2006 to the present

Title 28 § 546. Vacancies

(a) Except as provided in subsection (b), the Attorney General may appoint a United States attorney for the district in which the office of United States attorney is vacant.

(b) The Attorney General shall not appoint as United States attorney a person to whose appointment by the President to that office the Senate refused to give advice and consent.

(c) A person appointed as United States attorney under this section may serve until the qualification of a United States Attorney for such district appointed by the President under section 541 of this title.

28 U.S.C. § 546 (2007). (This version is not yet in curent published versions of the United States Code, which usually run two years behind recent legislation.)

See also

• Executive privilege
• gwb43.com

References

• House Judiciary Committee home page with links to documents (PDF) related to controversy. Some of the pdfs released by the House are text-searchable. However, the 3,000 pages released on 3/19/07 are not. Text-searchable versions of these documents.

• Inside the U.S. Attorneys Emails: Major Players and Themes, good summary by the Wall Street Journal highlighting the most significant of the emails.

• Links to documents released on 3/23/07. McClatchy Newspapers.

• "Is the DOJ Politicizing the Hiring and Firing of U.S. Attorneys?". Senate Judiciary Committee hearing February 6, 2007.

• "Consideration of issuing subpoenas to former United States Attorneys". Senate Judiciary Committee Subcommittee on Commercial and Administrative Law. March 1, 2007. {{cite web}}: Check date values in: |date= (help)

• Washington Post in-depth coverage site on firings: "Special Reports: U.S. Attorney Firings Investigation". WashingtonPost.com.

• "2006 Dismissal of U.S. Attorneys controversy". Discourse DB (political commentary database).

• Eggen, Dan (January 19, 2007). "Prosecutor Firings Not Political, Gonzales Says". Washington Post. pp. Page A02. {{cite news}}: Check date values in: |date= (help)

• Eisenstein, James. Counsel for the United States: U.S. Attorneys in the Political and Legal Systems. Baltimore. Johns Hopkins University Press. 1978.

• Johnston, David (January 17, 2007). "Justice Dept. Names New Prosecutors, Forcing Some Out". New York Times. {{cite news}}: Check date values in: |date= (help)

• Kane, Paul and Dan Eggen (March 9, 2007). "Gonzales Yields On Hiring Interim U.S. Attorneys". Washington Post. pp. Page A01. {{cite news}}: Check date values in: |date= (help) Article on the hearings.

• Kelman, Laurie (March 1, 2007). "Dems Seek Testimony From Fired Attorneys". Washington Post. Associated Press. {{cite web}}: Check date values in: |date= (help)

• Kiel, Paul (March 1, 2007). "BREAKING: House Committee to Subpoena Ousted Prosecutors". TPMmuckraker.com (news blog). {{cite news}}: Check date values in: |date= (help)

• Marosi, Richard (January 17, 2007). "U.S. prosecutors quit in San Diego, S.F." Los Angeles Times. {{cite news}}: Check date values in: |date= (help)

• Thornton, Kelly and Onell R. Soto (January 12, 2007). "Job performance said to be behind White House firing". San Diego Union Tribune. {{cite news}}: Check date values in: |date= (help); Italic or bold markup not allowed in: |work= (help)

• Vicini, James (March 13, 2007). "Justice aide resigns over prosecutor firings". Reuters. {{cite news}}: Check date values in: |date= (help) Wire article on Congressional supoenas issued to attorneys.

• Whitford, Andrew B. "Bureaucratic Discretion, Agency Structure,and Democratic Responsiveness: The Case of the United States Attorneys." Journal of Public Administration Research and Theory, Vol. 12, No. 1: 3-27 (2002). Public Management Research Association.