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|Dismissal of U.S. attorneys controversy|
|G. W. Bush administration officials involved|
|Involved administration officials who resigned|
|U.S. Senate Committee on the Judiciary|
|U.S. House Committee on the Judiciary|
The dismissal of U.S. Attorneys controversy was initiated by the unprecedented midterm dismissal of seven United States Attorneys on December 7, 2006, by the George W. Bush administration's Department of Justice. Congressional investigations focused on whether the Department of Justice and the White House were using the U.S. Attorney positions for political advantage. Allegations were that some of the attorneys were targeted for dismissal to impede investigations of Republican politicians or that some were targeted for their failure to initiate investigations that would damage Democratic politicians or hamper Democratic-leaning voters. The U.S. attorneys were replaced with interim appointees, under provisions in the 2005 USA PATRIOT Act reauthorization.
The dismissed U.S. Attorneys had all been appointed by President George W. Bush and confirmed by the Senate, more than four years earlier. Two other attorneys were dismissed in controversial circumstances in 2005–2006. Twenty-six or more U.S. Attorneys had been under consideration for dismissal during this time period. The firings received attention via hearings in Congress in January 2007, and by March 2007 the controversy had national visibility. Attorney General Alberto Gonzales stated that the U.S. Attorneys "serve at the pleasure of the president" and described the affair as "an overblown personnel matter".
By mid-September 2007, nine of the highest-level officers of the Department of Justice associated with the controversy had resigned, most prominently, Attorney General Alberto Gonzales.
A subsequent report by the Justice Department Inspector General in October 2008 found that the process used to fire the first seven attorneys and two others dismissed around the same time was "arbitrary", "fundamentally flawed", and "raised doubts about the integrity of Department prosecution decisions". In July 2010, the Department of Justice prosecutors closed the two-year investigation without filing charges after determining that the firing was inappropriately political, but not criminal, saying "Evidence did not demonstrate that any prosecutable criminal offense was committed with regard to the removal of David Iglesias. The investigative team also determined that the evidence did not warrant expanding the scope of the investigation beyond the removal of Iglesias."
The U.S. Attorneys controversy touches upon a wide range of issues. The U.S. Attorneys, in their pursuit of justice, wield enormous power. Their political impartiality in deciding which cases to prosecute and in arguing those cases before judges and juries with diverse views is essential. The scandal pitted Congress against the Bush White House, generating a series of constitutional issues. As the controversy unfolded, it led to other controversies, notably the politicization of hiring at the U.S. Department of Justice, the Bush White House e-mail controversy, and the alleged politically motivated prosecutions by U.S. Attorneys in several states.
The following sections briefly summarize aspects of the controversy. More thorough analyses are further below, or in the related articles.
As the controversy emerged, U.S. Senators were concerned about a little-noticed provision in the re-authorization of the USA PATRIOT Act in 2006 that eliminated the 120-day term limit on interim appointments of U.S. Attorneys made by the United States Attorney General to fill vacancies. The law permitted the Attorney General to appoint interim U.S. Attorneys without a term limit in office, and avoid a confirming vote by the Senate. The change gave the Attorney General greater appointment powers than the President, since the President's U.S. Attorney appointees are required to be confirmed by the Senate; the law undermined the confirmation authority of the Senate. The U.S. Senate was concerned that, in dismissing the U.S. Attorneys, the administration planned to fill the vacancies with its own choices, thus bypassing Senate confirmation and the traditional consultation with Senators in the selection process. Congress rescinded the provision by very large majorities in March and May 2007, and it was quietly signed into law without ceremony by President George W. Bush on June 14, 2007.
The reasons for the dismissal of each individual U.S. Attorney were unclear. Two suggested motivations were that the administration wanted to make room for U.S. Attorneys who would be more sympathetic to the administration's political agenda, and the administration wanted to advance the careers of promising conservatives. Critics said that the attorneys were fired for failing to prosecute Democratic politicians, for failing to prosecute claims of election fraud that would hamper Democratic voter registration, as retribution for prosecuting Republican politicians, or for failing to pursue adult obscenity prosecutions. The administration and its supporters said that the attorneys were dismissed for job-performance reasons "related to policy, priorities and management", and that U.S. Attorneys serve at the pleasure of the President. However, at least six attorneys had recently received positive evaluations of their performance from the Department of Justice. In September 2008, the Department of Justice Inspector General's investigation concluded that the dismissals were politically motivated and improper.
Members of Congress investigating the dismissals found that sworn testimony from Department of Justice officials appeared to be contradicted by internal Department memoranda and e-mail, and that possibly Congress was deliberately misled. The White House role in the dismissals remained unclear despite hours of testimony by Attorney General Gonzales and senior Department of Justice staff in congressional committee hearings. The Bush administration issued changing and contradictory statements about the timeline of the planning of the firings, persons who ordered the firings, and reasons for the firings. The origin and evolution of the list of attorneys to be dismissed remained unclear. In response the Inspector General's report in September 2008, Attorney General Michael Mukasey appointed a special prosecutor to determine if administration officials had perjured themselves in testimony to Congress.
Attorney General Gonzales, in a confidential order dated March 1, 2006, not published in the Federal Register, formally delegated authority to senior DOJ staff Monica Goodling and Kyle Sampson to hire and dismiss political appointees and some civil service positions. On May 2, 2007, the Department of Justice announced two separate investigations into hirings conducted by Goodling: one by the department's Inspector General, and a second by the Office of Professional Responsibility. In testimony before the House Judiciary Committee, on May 23, 2007, Goodling stated that she had "crossed the line" and broken civil service laws regulating hiring for civil service positions, and had improperly weighed political factors in assessing applicants.
According to a January 2009 Justice Department report, investigators found that Bradley Schlozman, as interim head of the Civil Rights Division at the Department of Justice, "favored applicants with conservative political or ideological affiliations and disfavored applicants with civil rights or human rights experience whom he considered to be overly liberal". The positions under consideration were not political, but career, for which the political and ideological views of candidates are not to be considered, according to federal law and guidelines.
In a letter of May 30, 2007, to the Senate Judiciary Committee, the United States Department of Justice Office of the Inspector General and Counsel for the Office of Professional Responsibility confirmed that they were expanding their investigation beyond "the removals of United States Attorneys" to include "DOJ hiring and personnel decisions" by Monica Goodling and other Justice Department employees.
The controversy surrounding the U.S. Attorneys dismissals was often linked to elections or voter-fraud issues. Allegations were that some of the U.S. Attorneys were dismissed for failing to instigate investigations damaging to Democratic politicians, or for failing to more aggressively pursue voter-fraud cases. Such allegations were made by some of the dismissed U.S. Attorneys themselves to suggest reasons they may have been dismissed. The background to the allegations is the recent tendency for elections in parts of the United States to be very close; an election outcome can be affected by an announced investigation of a politician. It is explicit policy of the Department of Justice to avoid bringing voter-related cases during an election for this reason. By 2006, the pursuit of voter fraud cases was an acknowledged political strategy of the Republican Party, although most had little substance. The use of U.S. Attorneys for partisan purposes is highly improper, particularly given the strong non-partisan traditions of the U.S. Attorneys. In September 2008, the Inspector General for the Department of Justice concluded that some of the dismissals were motivated by the refusal of some of the U.S. Attorneys to prosecute voter fraud cases during the 2006 election cycle.
By April 2007, the apparent politicization of the Department of Justice, the influence of politics on the appointment of some of the U.S. Attorneys, and the alleged politically motivated prosecutions by some of the U.S. Attorneys began to affect cases of public corruption and voter fraud nationwide. According to the National Law Journal,
"Just the appearance of political influence in cases related to those firings, combined with the recent, unusual reversal of a federal public corruption conviction in Wisconsin [c.f., Georgia Thompson], some say, will spur aggressive defense lawyers to question the political motivation of prosecutors in certain cases; make magistrates and judges more skeptical of the evidence before them; and perhaps even chill line prosecutors in their pursuit of some indictments."
In June 2008, a grand jury was empaneled to consider criminal indictments against officials involved in the firings. The grand jury was presented evidence from ongoing investigations at the Department of Justice Inspector General's office and at the DOJ's Office of Professional Responsibility.
On January 6, 2005, Colin Newman, an assistant in the White House counsels office, wrote to David Leitch stating, "Karl Rove stopped by to ask you (roughly quoting) '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.'". The email was then forwarded to Kyle Sampson, chief of staff to Attorney General Alberto Gonzales.
In reply, Kyle Sampson, then Department of Justice counsel to Attorney General John Ashcroft, 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." The White House at one time suggested that the plan for dismissals came from White House counsel Harriet Miers, who left the White House in January 2007 before the dismissal received public attention.
In March 2005, Sampson
"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'".
In September 2005, Sampson became Gonzales's Chief of Staff at the Department of Justice.
Sampson wrote in January 2006 to 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".
On February 12, 2006, Monica Goodling sent a spreadsheet of each U.S. Attorney's political activities and memberships in conservative political groups, in an email to senior Administration officials, with the comment "This is the chart that the AG requested".
(In late February 2006, the White House and the Senate had a minor dispute over the nomination of a U.S. Attorney to Utah. The White House favored Kyle Sampson for the position, while Senator Hatch (R, Utah) favored Brett Tolman. Tolman, who had been instrumental in changing the legislation within the USA PATRIOT Act governing the appointment of U.S. Attorneys, was eventually nominated by President Bush and confirmed by the Senate.)
Sampson strongly urged using changes to the law governing U.S. Attorney appointments to bypass Congressional confirmation, writing in a September 17, 2006 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."
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 imminent (November) and Republicans were concerned about losing Congressional seats to Democrats. (The Democrats did take control of the Congress.)
"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 21, 2006, Sampson sent an e-mail to an assistant in the Attorney General's office, scheduling a meeting in Gonzales' conference room with senior Justice Department advisers to discuss "U.S. Attorney Appointments". Those asked to be scheduled in the meeting included Gonzales, Sampson, Monica Goodling, Deputy Attorney General Paul McNulty, Associated Deputy A.G. William Moschella, Michael Elston, and Michael Battle. On November 27, 2006, Gonzales met with senior advisers 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, saying, "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."
Although seven attorneys were dismissed on December 7, 2006, subsequent disclosures show that three or more additional attorneys were dismissed under similar circumstances between 2005 and 2006. U.S. Attorney Bud Cummins in Arkansas had been informed in June 2006 that he was to be replaced, and he resigned, effective December 20, 2006, several days after the public announcement of the appointment of his successor Timothy Griffin.
|Dismissed U.S. Attorneys Summary ( )|
|Dismissed December 7, 2006|
|1.||David Iglesias||Dec 19, 2006||New Mexico||Larry Gomez|
|2.||Kevin V. Ryan||Jan 16, 2007||Northern California||Scott Schools|
|3.||John McKay||Jan 26, 2007||Western Washington||Jeffrey C. Sullivan|
|4.||Paul K. Charlton||Jan 31, 2007||Arizona||Daniel G. Knauss|
|5.||Carol Lam||Feb 15, 2007||Southern California||Karen Hewitt|
|6.||Daniel Bogden||Feb 28, 2007||Nevada||Steven Myhre|
|7.||Margaret Chiara||Mar 16, 2007||Western Michigan||Russell C. Stoddard|
|Others dismissed in 2006|
|1.||Todd Graves||Mar 24, 20062||Western Missouri||Bradley Schlozman6|
|2.||Bud Cummins||Dec 20, 20063||Eastern Arkansas||Timothy Griffin5|
|Dismissed in 2005|
|1.||Thomas M. DiBiagio||Jan 2, 20054||Maryland||Allen F. Loucks|
|2.||Kasey Warner||Jul 20054||Southern W. Virginia||Charles T. Miller|
|1Source: Department of Justice, U.S. Attorneys Offices|
2Informed of dismissal January 2006.
Kevin Ryan (R) Though described as "loyal to the Bush administration," he was allegedly fired for the possible controversy that negative job performance evaluations might cause if they were released.
John McKay (R) Was given a positive job evaluation 7 months before he was fired. After a close WA governor's race resulted in a Democratic victory, local Republicans criticized McKay for not investigating allegations of voter fraud.
The initial reaction was from the senators of the affected states. The U.S. Senate convened for the 110th Congress on January 4 with its new Democratic majority. The Senate Judiciary Committee has oversight over the U.S. Attorneys. In a letter to Gonzales on January 9, 2007, Senators Feinstein (D, California) and Leahy (D, Vermont; Chair of the Committee) of the Senate Judiciary Committee expressed concern that the confirmation process for U.S. attorneys would be bypassed, and on January 11, they, together with Senator Pryor (D, Arkansas), introduced legislation "to prevent circumvention of the Senate's constitutional prerogative to confirm U.S. Attorneys", called Preserving United States Attorney Independence Act of 2007, S. 214 and H.R. 580. Feinstein issued a press release about the bill. The initial concern was about the USA PATRIOT Act and the confirmation process, rather than the politicization of the U.S. Attorneys that later dominated the controversy.
Gonzales testified before the Senate Judiciary Committee on January 18. He assured the committee that he did not intend to bypass the confirmation process and denied the firings were politically motivated.
On January 18, 2007, in an opinion piece for the Las Vegas Review-Journal, Jane Ann Morrison 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."
Marisa Taylor, writing for McClatchy 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 is a professor at the Loyola Law School in Los Angeles."
The concerns expressed by Senators Feinstein and Pryor were followed up by hearings before the Senate Judiciary Committee called by Senator Schumer (D, New York) in February. Deputy Attorney General Paul McNulty testified before the Senate Judiciary Committee on February 6. He underscored that the seven were fired for job performance issues, and not political considerations.
In subsequent closed-door testimony on April 27, 2007 to the committee, McNulty said that days after the February hearing, he learned that White House officials had not revealed to him White House influence and discussions on creating the list. McNulty in February called Senator Schumer by telephone to apologize for the inaccurate characterization of the firings. At least six of the seven had recently received outstanding job performance ratings. McNulty testified that Bud Cummins, the U.S. Attorney for Arkansas, was removed to install a former aide to Karl Rove and Republican National Committee opposition research director, the 37-year-old Timothy Griffin. Cummins, apparently, "was ousted after Harriet E. Miers, the former White House counsel, intervened on behalf of Griffin".
McNulty's testimony that the attorneys were fired for "performance related issues" caused the attorneys to come forward in protest. There is some evidence that the administration was concerned about the attorneys' going public with complaints prior to this time.
Salon.com reported: "[A]t 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."
The proceedings were politically charged. At one point Senator Schumer was criticized by Senator Specter (R, Pennsylvania), also on the Judiciary Committee, for having a conflict of interest by being a lead investigator of the affair while also chairing the Democratic Senatorial Campaign Committee; such criticism was short-lived.
On March 5, 2007 effective March 16, Michael A. Battle resigned his position of Director of the Executive Office for United States Attorneys (EOUSA). On March 6, 2007, Gonzales responded to the controversy in an op-ed in USA Today in which he wrote:
"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, 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, saying "I stand by the decision and I think it was the right decision". Gonzales admitted that "incomplete information was communicated or may have been communicated to Congress" by Justice Department officials, and said that "I never saw documents. We never had a discussion about where things stood."
Gonzales lost more support when records subsequently challenged some of these statements. 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. Records released on March 23 showed that on his November 27 schedule "he attended an hour-long meeting at which, aides said, he approved a detailed plan for executing the purge".
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 20, President Bush declared in a press conference that his aides would not testify under oath on the matter if subpoenaed by Congress. Bush explained his position saying,
"The President relies upon his staff to provide him candid advice. The framers of the Constitution understood this vital role when developing the separate branches of government. And if the staff of a President operated in constant fear of being hauled before various committees to discuss internal deliberations, the President would not receive candid advice, and the American people would be ill-served.... I will oppose any attempts to subpoena White House officials.... My choice is to make sure that I safeguard the ability for Presidents to get good decisions."
Despite the President's position against aides testifying, on March 21 the House Judiciary Committee authorized the subpoena of five Justice Department officials, and on March 22, the Senate Judiciary Committee authorized subpoenas as well.
Sampson's replacement as the Attorney General's temporary chief of staff was U.S. Attorney for the Eastern District of Virginia, Chuck Rosenberg. Rosenberg initiated a DOJ inquiry into possibly inappropriate political considerations in Monica Goodling's hiring practices for civil service staff. Civil service positions are not political appointments and must be made on a nonpartisan basis. In one example, Jeffrey A. Taylor, former interim U.S. attorney for the District of Columbia, tried to hire a new career prosecutor, Seth Adam Meinero, in the fall of 2006. Goodling judged Meinero too "liberal" and declined to approve the hire. Meinero, a Howard University law school graduate who had worked on civil rights cases at the Environmental Protection Agency, was serving as a special assistant prosecutor in Taylor's office. Taylor went around Goodling, and demanded Sampson's approval to make the hire. In another example, Goodling removed an attorney from her job at the Department of Justice because she was rumored to be a lesbian, and, further, blocked the attorney from getting other Justice Department jobs she was qualified for. Rules concerning hiring at the Justice department forbid discrimination based on sexual orientation.
On March 26, 2007, Goodling, who had helped coordinate the dismissal of the attorneys with the White House, took leave from her job as counsel to the attorney general and as the Justice Department's liaison to the White House. Goodling was set to testify before Congress, but on March 26, 2007, Goodling cancelled her appearance at the Congressional hearing, citing her Fifth Amendment right against self-incrimination. On April 6, 2007, Ms. Goodling resigned from the Department of Justice, stating in her three-sentence resignation letter to Mr. Gonzales, "May God bless you richly as you continue your service to America."
On April 25, 2007, the House Judiciary Committee passed a resolution, by a 32–6 vote, authorizing lawyers for the House to apply for a court order granting Goodling immunity in exchange for her testimony and authorizing a subpoena for her. On May 11, 2007, U.S. District Court Chief Judge Thomas Hogan signed an order granting Goodling immunity in exchange for her truthful testimony in the U.S. Attorney firings investigation, stating that "Goodling may not refuse to testify, and may not refuse to provide other information, when compelled to do so" before the Committee.
April 19, 2007 ( )
|Senate Committee on the Judiciary|
Hearing on the dismissal of U.S. attorneys
Testimony of Alberto Gonzales, United States Attorney General
|Senators' Questions and A.G.'s Testimony|
The United States Congress's House Committee on the Judiciary and the Senate Committee on the Judiciary have oversight authority over Department of Justice (DOJ). In 2007 the two committees conducted a number of public and closed-door oversight and investigative hearings on the topic of the dismissal of U.S. attorneys, and DOJ's interactions with the White House and with staff members of the Executive Office of the President. A routine oversight hearing on January 18, 2007, by the Senate committee with Attorney General Alberto Gonzales was the first public congressional occasion that Gonzales responded to questions about the dismissed attorneys.
Through the winter and spring, a number of key players in the controversy, past and continuing DOJ officials, dismissed U.S. Attorneys, and others appeared in a total of more than eleven public committee hearings. Some individuals appeared at the invitation of the committees, and some appeared only under the compulsion of committee-issued subpoena. One former DOJ official, Monica Goodling, testified in May 2007 only after the grant of a limited "use" immunity, after reserving the right to not incriminate herself. The two committees made public through their web sites thousands of pages of documents and correspondence that had been subpoenaed from the Department of Justice, individuals, and other organizations.
On July 11, 2007, Sara Taylor, former top aide to Karl Rove, testified before the Senate Judiciary Committee. She was granted the unusual allowance of having her attorney, Neil Eggleston, next to her at the witness table to advise her on which questions she could answer and remain in accord with Bush's claim of executive privilege.
Throughout Taylor's testimony, she refused to answer many questions, saying "I have a very clear letter from [White House counsel] Mr. [Fred] Fielding. That letter says and has asked me to follow the president's assertion of executive privilege." Chairman Patrick Leahy (D-VT) dismissed the claims and warned Taylor she was "in danger of drawing a criminal contempt of Congress citation". Senator Ben Cardin (D-MD) took issue with the claim as well, telling Taylor
"You seem to be selective in the use of the presidential privilege. It seems like you're saying that, 'Yes, I'm giving you all the information I can,' when it's self-serving to the White House, but not allowing us to have the information to make independent judgment." Leahy added "I do note your answer that you did not discuss these matters with the president and, to the best of your knowledge, he was not involved is going to make some nervous at the White House because it seriously undercuts his claim of executive privilege if he was not involved." He also said "It's apparent that this White House is contemptuous of the Congress and feels it does not have to explain itself to anyone, not to the people's representatives in Congress nor to the American people."
In summary, Taylor told the Senate that she
"did not talk to or meet with President Bush about removing federal prosecutors before eight of them were fired", she had no knowledge on whether Bush was involved in any way in the firings, her resignation had nothing to do with the controversy, "she did not recall ordering the addition or deletion of names to the list of prosecutors to be fired", and she refuted the testimony of Kyle Sampson, Attorney General Alberto Gonzales' chief of staff, that she sought "to avoid submitting a new prosecutor, Tim Griffin, through Senate confirmation."
On July 11, 2007, as Sara Taylor testified, George Manning, the attorney to former White House Counsel Harriet Miers, announced that Miers intended to follow the request of the Bush Administration and not appear before the Committee the following day. Manning stated Miers "cannot provide the documents and testimony that the committee seeks."
In response to the announcement, Committee Chairman John Conyers (D-MI) and Rep. Linda Sánchez (D-CA) Chair of the Subcommittee on Commercial and Administrative Law, released a letter saying the decision "could subject Ms. Miers to contempt proceedings." Conyers wrote
"I am extremely disappointed in the White House's direction to Ms. Miers that she not even show up to assert the privilege before the Committee. We understand that the White House has asserted privilege over both her testimony and documents, and we are prepared to consider those claims at tomorrow's hearing."
"It is disappointing that Ms. Miers has chosen to forego this opportunity to give her account of the potential politicization of the justice system.", Sánchez added "Our investigation has shown - through extensive interviews and review of documents - that Ms. Miers played a central role in the Bush Administration's decision to fire chief federal prosecutors. I am hopeful that Ms. Miers will reconsider the White House's questionable assertion of executive privilege and give her testimony on the firing of U.S. Attorneys."
On July 17, 2007 Sanchez and Conyers notified White House Counsel Fred Fielding that they were considering the executive privilege claims concerning a "subpoena issued on June 13 to Joshua Bolten, White House Chief of Staff, to produce documents." They warned, "If those objections are overruled, you should be aware that the refusal to produce the documents called for in the subpoena could subject Mr. Bolten to contempt proceedings". The panel ruled the claims of privilege as invalid on a party-line vote of 7–3.
The White House has consistently refused to provide the sought-after documents but has "offered to permit former and current aides to talk with lawmakers behind closed doors—but without a transcript and not under oath." This offer has been rejected by the Democratic Leadership in the House as unacceptable.
On July 25, 2007 the United States House Committee on the Judiciary voted along party lines 22-17 to issue citations of Contempt of Congress to White House Chief of Staff Joshua Bolten and former White House Counsel Harriet Miers. Committee Republicans voted against the measure, calling it "a partisan waste of time", while Democrats said "this is the moment for Congress to rein in the administration."
"For our view, this is pathetic. What you have right now is partisanship on Capitol Hill that quite often boils down to insults, insinuations, inquisitions and investigations rather than pursuing the normal business of trying to pass major pieces of legislation...now we have a situation where there is an attempt to do something that's never been done in American history, which is to assail the concept of executive privilege, which hails back to the administration of George Washington".
Committee Chairman John Conyers said
"Unlike other disputes involving executive privilege, the president has never personally asserted privilege. The committee has never been given a privilege log, and there is no indication the president was ever personally involved in the termination decisions." Having passed the Committee, the motion went to the full House, where it was unlikely to receive a vote until after Congress's August recess. If the measure passes the full House, the case would be given to the U.S. Attorney for the District of Columbia. "The administration has said it will direct federal prosecutors not to prosecute contempt charges."
On February 14, 2008, the United States House of Representatives voted 223–32 along party lines to pass the contempt resolutions against White House Chief of Staff Bolten and former White House Counsel Miers. Most Republicans staged a walkout during the vote.
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 redacted in the DOJ's previous release of documents. In a letter accompanying the subpoena, Rep. John Conyers (D), the chair of the committee, wrote "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."
Later that day a White House spokesman stated that some of the emails that had involved official correspondence 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. For example, J. Scott Jennings, an 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."
CNN reported a larger question concerning the lost e-mails: "Whether White House officials such as political adviser Karl Rove are intentionally conducting sensitive official presidential business via non-governmental accounts to evade a law requiring preservation—and eventual disclosure—of presidential records."
On May 2, 2007, the Senate Judiciary Committee issued a subpoena to Attorney General Gonzales compelling the Department of Justice to produce all email from Karl Rove regarding evaluation and dismissal of attorneys that was sent to DOJ staffers, no matter what email account Rove may have used, whether White House, National Republican party, or other accounts, with a deadline of May 15, 2007, for compliance. The subpoena also demanded relevant email previously produced in the Valarie Plame controversy and investigation for the CIA leak scandal (2003).
In August 2007, Karl Rove resigned without responding to the Senate Judiciary Committee subpoena claiming, "I just think it's time to leave." President Bush bid a fond farewell to his good friend and promised to follow him soon.
A number of members of both houses of Congress publicly said Gonzales should resign, or be fired by Bush. On March 14, 2007, Senator John E. Sununu (R, 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 Federal Bureau of Investigation. Calls for his ousting intensified after his testimony on April 19, 2007. By May 16, at least twenty-two Senators and seven Members of the House of Representatives — including Senators Hillary Clinton (D, New York) and Mark Pryor (D, Arkansas)— had called for Gonzales' resignation. (See Alberto Gonzales#Calls for resignation for further details.)
On May 24, 2007, Senators Charles Schumer (D-NY), Dianne Feinstein (D-CA), and Sheldon Whitehouse (D-RI) of the Senate Judiciary Committee announced the Democrats' proposed no-confidence resolution to vote on whether "Attorney General Alberto Gonzales no longer holds the confidence of the Senate and the American People." The resolution would have had no legal effect, but was designed to persuade Gonzales to depart or President Bush to seek a new attorney general. A similar resolution was introduced in the House by Rep. Adam Schiff (D-CA). On June 11, 2007, the resolution failed when a Senate vote failed to obtain the 60 votes required for cloture. The vote was 53 for, 38 against with 7 not voting, 1 voting "present", and one vacant senate seat.
University of Missouri law professor Frank Bowman observed that Congress has the power to impeach Gonzales if he willfully lied or withheld information from Congress during his testimony about the dismissal of U.S. Attorneys. On July 30, 2007, Rep. Jay Inslee (D-WA) announced that he would introduce a bill that would require the House Judiciary Committee to begin an impeachment investigation against Gonzales.
Gonzales submitted his resignation as Attorney General effective September 17, 2007, by a letter addressed to President Bush on August 26, 2007. In a statement on August 27, Gonzales thanked the President for the opportunity to be of service to his country, giving no indication of either the reasons for his resignation or his future plans. Later that day, President Bush praised Gonzales for his service, reciting the numerous positions in Texas government, and later, the government of the United States, to which Bush had appointed Gonzales. Bush attributed the resignation to Gonzales' name having been "dragged through the mud" for "political reasons". Senators Schumer (D-NY), Feinstein (D-CA) and Specter (R-PA) replied that the resignation was entirely attributable to the excessive politicization of the Attorney General's office by Gonzales, whose credibility with Congress, they asserted, was nonexistent.
Gonzales affirmed in his January 18, 2007 testimony to the Senate Judiciary Committee:
|“||I am fully committed, as the administration's fully committed, to ensure that, with respect to every United States attorney position in this country, we will have a presidentially appointed, Senate confirmed United States attorney.||”|
Bills to rescind the controversial USA PATRIOT Act provision were approved by very large majorities in the Senate and the House prior to the end of March, 2007. Ultimately S.214 was signed into law by the President on June 14, 2007, designated Public Law No: 110-34. The new law specified that all interim attorneys then in office shall serve terms ending 120 days from the signing of the bill.
In May 2007 there were 22 U.S. attorney positions out of 93 that were not held by a presidentially nominated occupant: either acting (filled by civil service First Assistant U.S. Attorneys), or interim (nearly all appointed by the Attorney General). Only four nominees have been submitted by the administration for the 22 positions, though White House spokesperson Tony Fratto was reported saying that the administration is committed to nominating candidates for all 22 positions. Fratto said the number of new nominees "has nothing to do with recent events. The closer you get toward the end of the second term, you're going to have fewer people." David Iglesias, the dismissed New Mexico U.S. attorney, said that the administration is in denial if it doesn't believe there are concerns about low office morale, the ability to remain independent or even the odds of being confirmed by a suspicious Senate controlled by the Democrats.
Timothy Griffin, the interim attorney for Eastern Arkansas, announced in February 2007 that he would not seek a presidential nomination. In early February, Deputy Attorney General McNulty had testified that a vacancy was specifically created for Griffin by dismissing Bud Cummins. Griffin said that he did not believe he would get a "fair consideration" from the Senate.
Interim U.S. Attorneys appointed under the provisions of the USA PATRIOT Act Re-authorization were not term limited. Timothy Griffin's continuing term was challenged in court, but Judge G. Thomas Eisele rejected the challenge, finding that Griffin held the position under the USA PATRIOT Act provision that allowed unlimited-term appointments. Under the previous law, Griffin's term would have been limited to 120 days, which would have expired in mid-April 2007. Legislation restoring the term limits to interim U.S. Attorneys (S214) also limits the terms of those interim U.S. Attorneys appointed under the Patriot Act Reauthorization to 120 days from the time of enactment of the legislation, which was June 14, 2007.
On September 29, 2008 the Justice Department's Inspector General (IG) released a report on the matter that found most of the firings were politically motivated and improper. The next day Attorney General Michael Mukasey appointed a special prosecutor Nora Dannehy to decide whether criminal charges should be brought against Gonzales and other officials involved in the firings. The IG's report contained "substantial evidence" that party politics drove a number of the firings, and IG Glenn Fine said in a statement that Gonzales had "abdicated his responsibility to safeguard the integrity and independence of the department." The report itself stopped short of resolving questions about higher White House involvement in the matter, because of what it said were the refusal to cooperate of a number of key players, among them Karl Rove, Senator Pete Domenici and Harriet Miers and because the White House refused to hand over its documents related to the firings.
On July 21, 2010, Nora Dannehy, the special prosecutor tasked with investigating the attorney dismissals, concluded that "there was insufficient evidence to establish that persons knowingly made material false statements to [the Office of Inspector General] or Congress or corruptly endeavored to obstruct justice" and that no criminal charges would be filed against Sampson or Gonzales. This decision has been criticized as an indication that the Department of Justice was being too lenient with Bush-era officials.
The President of the United States has the authority to appoint U.S. Attorneys, with the consent of the United States Senate, and the President may remove U.S. Attorneys from office. In the event of a vacancy, the United States Attorney General is authorized to appoint an interim U.S. Attorney. 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.
Senate-confirmed appointments to the Department of Justice (DOJ) offices, particularly U.S. Attorneys, are political in nature. Appointments to U.S. Attorney positions are often made in consultation with individual senators representing the state with the vacant position, typically with some emphasis in consulting Senators of the same party as the President.
The USA PATRIOT Act Improvement and Reauthorization Act of 2005, signed into law March 9, 2006, 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. (See Law references for the text to the statute (28 U.S.C. § 546), and its amendments.) 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 a Judiciary committee staff member of Republican Senator Arlen Specter when the bill was modified in joint conference committee, reconciling the Senate and House versions of the bill. During Senate hearings on February 6, 2007, Senator Specter stated that Brett Tolman, a committee staffer, had inserted the clause at the request of behalf of the Department of Justice. Specter stated that the change in the law had been partly to address separation of powers concerns expressed by a number of court districts, the issue being the interim appointments of U.S. Attorneys (executive branch) by the courts (judicial branch). The courts had appointed interim U.S. Attorneys for over a hundred years by then. The Department of Justice had been seeking a way to appoint interim U.S. Attorneys without Senate approval prior to 2005.
On March 20, 2007, the Senate voted 94-2 to re-instate the 120-day term limit on interim attorneys appointed by the Attorney General. On March 26, the U.S. House voted to reinstate the 120-day term limit as well, by a vote of 329–78. The bill was eventually passed in identical form by both houses in May 2007 and was signed into law by the President on June 14, 2007.
Another change to the laws governing the appointment of U.S. Attorneys concerned the residency requirements. The Patriot Act re-authorization included a provision that allowed U.S. Attorneys to reside outside of their appointed state. William W. Mercer authored the change in the law. He held two positions at the same time, the U.S. Attorney for Montana, and the Acting Associate Attorney General while residing in Washington. D.C. Senator Jon Tester (D, Montana) called for Mercer to resign. In the summer of 2007, Mercer resigned from his Acting Associate Attorney General office, and withdrew his presidential nomination for the same office, and returned to Montana to his other position, U.S. Attorney for the District of Montana.
By tradition, U.S. Attorneys are replaced only at the start of a new White House administration. U.S. Attorneys hold a "political" office, and therefore they are considered to "serve at the pleasure of the President." At the beginning of a new presidential administration, it is traditional for all 93 U.S. Attorneys to submit a letter of resignation. When a new President is from a different political party, almost all of the resignations will be eventually accepted. The attorneys are then replaced by new political appointees, typically from the new President's party.
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." Similarly, a Senate study noted that "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."
In contrast to the 2006 dismissals, Presidents rarely dismiss U.S. attorneys they appoint. Kyle Sampson, Chief of Staff at the Department of Justice, noted in a January 9, 2006, e-mail to Harriet Miers: "In recent memory, during the Reagan and Clinton Administrations, Presidents Reagan and Clinton did not seek to remove and replace U.S. Attorneys they had appointed, but instead permitted such U.S. Attorneys to serve indefinitely under the holdover provision" (underlining original). There is no precedent for a president to dismiss several U.S attorneys at one time while in the middle period of the presidential term in office.
The few examples of forced dismissals available are based on misconduct. The Congressional Research Service investigated the precedent of dismissing U.S. Attorneys over the 25 years 1981–2006 and identified 54 attorneys who did not serve their full 4-year term. Of these, only two were documented involuntary dismissals: William Kennedy in 1982 and J. William Petro in 1984. Both were Reagan appointees. Kennedy was dismissed "for asserting that the CIA had pressured DOJ to pressure him not to pursue a case", and Petro was dismissed for "disclosing information about an indictment." However, all of the U.S. Attorneys dismissed in 2006 were in office longer than four years, and appointments lasting into a President's second term were beyond the scope of the study. Before 1981, President Carter replaced U.S. Attorney David Marston at the request of Democratic Representative Joshua Eilberg. Marston had been investigating corruption charges against Eilberg and Daniel Flood, another Democratic Representative. The probe continued after the attorney was replaced, however, and Eilberg lost his 1978 reelection bid. Eilberg was eventually sentenced to five years probation and a $10,000 fine, and Flood was censured for bribery by 96th United States Congress.
Part of the governing federal law for appointing United States Attorneys.
Statute, prior to March 9, 2006, USA PATRIOT ACT Re-authorization Act's amendments, and after June 14, 2007, when S.214 was signed into law
United States Code, 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.
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, through June 14, 2007
United States Code, 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.
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