Dismissal of U.S. attorneys controversy

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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 political scandal.[1] [2] [3] The administration and its defenders have described it as "an overblown personnel matter." [4] All of the United States Attorneys in question were appointed by President George W. Bush.

At issue in the controversy is the political nature of United States Attorneys' appointments. A 2006 revision of the USA PATRIOT Act amended the United States Code to permit the term of an interim U.S. Attorney to last until a nominated replacement is approved by the Senate, in effect giving the United States Attorney General, the authorized officer to appoint interim U.S. Attorneys, the power to appoint U.S. Attorneys without Senate approval.[5]

Another concern is the actual reasons for the dismissals. Critics contend that the attorneys were fired for a failure to prosecute enough Democrats or for prosecuting Republicans. The administration and its supporters maintain that all eight of the attorneys were dismissed for job-performance reasons "related to policy, priorities and management", and that because United States Attorneys serve at the pleasure of the president, any action relating to their employment within that context is non-reviewable. Several news organizations have reported that the Bush administration has issued changing and contradictory statements regarding the timeline of the planning of the firings, the individuals who ordered the firings, and the reasons for the firings.[6] [7] [8] [9]

Events

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 US 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."[10]. 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 US Attorneys" and that the rest "are doing a great job, are loyal Bushies, etc."[10] 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."[11]

In October of 2006, George W. Bush told Alberto Gonzales that he had received complaints that some of the US Attorneys had not pursued certain voter-fraud investigations.[11] 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).

On March 13, 2007 the Congress received copies of emails that showed "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'".[12] 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."[12] 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."[13]

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 US 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."[14] 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 publicity started.[11]


U.S. Attorneys fired

In December 2006, the Bush Administration notified seven United States Attorneys that they were to resign for "job performance reasons", and nominated seven replacements. The seven were notified by phone, by the Director of the Exectuive Office for US Attorneys, Michael A. Battle, "on December 7 that they were being fired without explanation. In addition, a prosecutor in Little Rock, Arkansas was removed in December to make room for a former aide to presidential adviser Karl Rove."[15]

The attorneys dismissed were:[16]

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.[19] Cummins, apparently, "was ousted after Harriet E. Miers, the former White House counsel, intervened on behalf of Griffin."[20] 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.[21]

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."[22] 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."[23] 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."[24]

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."[25]

On March 12, 2007, Sampson resigned from the Department of Justice.[14] 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.[14] But Gonzales also admitted that Justice Department officials had misled Congress. According to the Attorney General, "incomplete information was communicated or may have been communicated to Congress."[26][27]

Political reaction

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. [28] As of March 15, 2007, at least twelve Senators and one Member of Congress — including Hillary Clinton and Mark Pryor— have called for his resignation.[29] 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 [30]. On March 15, 2007, the Senate Judiciary Committee authorized the subpoena of five Justice Department officials. [31]

Threats for coming forward

Cummins, a Republican, stated that after defending his fellow attorneys in the press, he received a phone call from Michael Elston, a top Justice official. Cummins stated that Elston told him that talking to the press might not be a good idea and that officials at the Department of Justice may feel compelled to "somehow pull their gloves off" and respond by tarnishing the attorney's image. "I was tempted to challenge him," Cummins e-mailed colleagues later that day, "and say something movie-like such as 'are you threatening ME???'". Elston acknowledges he told Cummins that he said "it's really a shame that all this has to come out in the newspaper." Elston says that this was not intended as a threat.[32]

McKay also reported getting a similar call from Elston. 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.[32]

Bud Cummins firing

Bud Cummins had been investigating Missouri Governor Matt Blunt's Administration to see if he "abused his power by forming a system of umbrella companies established through Kansas City law firm Lathrop & Gage LC to run the state’s licensing network." [33] The investigation stopped when Cummins was fired. He was replaced with Timothy Griffin, a controversial former Karl Rove aide.[34]

Carol Lam firing

The most well-known of the dismissed U.S. attorneys was Carol Lam who had successfully prosecuted then-Congressman Duke Cunningham for corruption. On May 11, 2006, the Los Angeles Times reported that her investigation had expanded to investigate Jerry Lewis, the chair of the House Appropriations Committee.[35] On May 10, 2006, Lam had also notified the Justice Department that she intended to execute search warrants on a high-ranking CIA official.[36] 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."[37] 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 day, 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).[37]

North County Times has quoted Republican Congressman Darrell Issa stating that he takes "maybe one-twentieth" of the responsibility for Lam's firing.[38] On March 6,2007, Issa made a statement at the United States House Committee on the Judiciary hearing.[39] 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."'[37]

David Iglesias firing

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,” Rove said. 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."[40] Indeed, 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."[41]

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.'"[15] Further, US Attorneys in Arizona, Nevada and California were conducting corruption probes involving Republicans at the time of their dismissals.[15] Prior to the 2006 midterm election, Pete Domenici called and "pressured New Mexico U.S. Attorney David Iglesias to speed up indictments in a federal corruption investigation that involved at least one former Democratic state senator. When Iglesias said an indictment wouldn't be handed down until at least December, "the line went dead," Iglesias was fired one week later by the Bush Administration. "A communication by a senator or House member with a federal prosecutor regarding an ongoing criminal investigation is a violation of ethics rules." In a March 2007 statement, Domenici admitted making such a call.[42] House Judiciary Committee Chairman John Conyers, D-Mich., has issued subpoenas to require Iglesias, among other recently ousted U.S. attorneys, to testify before Congress about their firings.[43] 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.[44] Domenici has denied trying influence Iglesias, and has hired lawyer K. Lee Blalack II to represent him.[45] According to the Justice Department, Domenici called the Department and demanded Iglesias be replaced on four occasions.[46] 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)."[11]

Rep. Heather Wilson also called and "pressured New Mexico U.S. attorney David Iglesias to speed up indictments in a federal corruption investigation that involved at least one former Democratic state senator. Wilson was curt after Iglesias was non-responsive to her questions about whether an indictment would be unsealed." Iglesias was fired one week afterward by the Bush Administration. House Judiciary Committee Chairman John Conyers, D-Mich., has issued subpoenas to require Iglesias, among other recently ousted U.S. attorneys, to testify before Congress about their firings.[47][48] Ex-Governor David Cargo (R-NM) accused Wilson of "essentially taking the Fifth [Amendment]" defense thus far.[49]

John McKay firing

As for John McKay, 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."[50] 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."[51]

Other controversial demotions, vacancies, and firings of U.S. Attorneys 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 was ousted because of political pressure over public corruption investigations into the administration of then-Gov. Robert L. Ehrlich Jr.[52]

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 "US 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 Ambramoff in Guam ended when "Rapadas recused himself from the public corruption case involving [Carl] Gutierrez" because "the new US attorney was a cousin of 'one of the main targets'," according to a confidential memo to Justice Department officials."[53]

Presidential authority to hire and fire US Attorneys

The President of the United States has the authority to nominate, and to remove U.S. Attorneys from office.[54] The United States Attorney General is the designated officer permitted to appoint interim U.S. Attorneys (both prior to and after the amendments of the USA PATRIOT Act). Such interim appointments would expire after 120 days, if the Senate had not approved a presidential nomination for the vacancy. Vacancies that persisted beyond 120 days were filled through interim appointments made by the federal district court for the district of the vacant office.[55] Here is the relevant statutory provision (title 28, section 546 of the United States Code) prior to its amendment by the USA PATRIOT Act:

§ 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.[55]

28 U.S.C. § 546 (2000 ed., Supp IV).

USA PATRIOT Act revisions

On March 9, 2006, The USA PATRIOT Act Improvement and Reauthorization Act of 2005 was signed into law. Included in this revision to the USA PATRIOT Act is a change in the interim appointment process of U.S. Attorneys. Both the provisions for the 120-day term expiration period for the Attorney General's interim appointees, and the subsequent appointment authority of district courts were stricken from the U.S. Code. The interim appointee may serve indefinitely, if the president declines to nominate a U.S. Attorney for a vacancy. The change was written into the bill by Republican Senator Arlen Specter.[56] The change is worded as follows:

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. '.[57]

Therefore, the resulting statutory provision currently in effect (which is has not yet been reflected in published versions of the United States Code) reads as follows:

§ 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).

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." [58]. Senator Dianne Feinstein is sponsoring a bill to overturn the USA Patriot Act amendment and return to the Senate the power to confirm U.S. Attorneys.

Terminations under previous White House administrations

At the beginning of each presidential term, it is traditional for anyone occupying a "political office" to turn in a signed letter of resignation. A political office is generally considered one that the occupant "serves at the pleasure of the President." If there is a new President from a different party, it is expected that all of the resignations would be accepted. [59] The attorneys are then replaced by new political appointees, typically from the new President's party.[60] For an extraordinary example, President Clinton immediately dismissed all 93 US attorneys when he came to office in 1993. Other Presidents have typically installed their team by transitioning in replacements gradually as the tenure expired for the preceding administrations US Attorneys. [61]

In contrast to the 2006 dismissal event, prior administrations typically "cleaned house" at the outset of the presidential term; they very rarely terminated attorneys, whom they had previously appointed, and rarer still in multiple numbers.[62] Presidents also have not been known to replace attorneys that they appointed during their first term in their second term in office. 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."[60]

Since 1978, until 2006, at least four US Attorneys have been "forced out" in the middle of a President's term.[62] 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.[63] Kyle Sampson noted in a January 9, 2006 email 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 to serve indefinitely under the holdover provision.” (underlining original)[64]

The Congressional Research Service, a taxpayer-funded service provided to members of Congress, investigated the precedent of US 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.[65] Note however, that all of the US Attorneys dismissed in this recent were in office longer than four years, while in "holdover," beyond the scope of the Congressional Research Service study.[66][67]

References

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  48. ^ The Dallas Morning News, Fired U.S. attorney alleges political pressure, February 28, 2007. Retrieved Mar. 13, 2007.
  49. ^ Michael Gisick, The Albuquerque Tribune, GOP VIPs ponder David Iglesias fallout, March 3, 2007. Retrieved Mar. 13, 2007.
  50. ^ David Bowermaster (February 16, 2007). "Was McKay ousted over 2004 election?". Seattle Times.
  51. ^ Mike Carter (March 17, 2007). "U.S. attorney candidate can't practice law". Seattle Times. Retrieved 2007-03-18. {{cite news}}: Check date values in: |date= (help)
  52. ^ Rich, Eric (March 7, 2007). "Justice Admits U.S. Attorney Was Forced Out". Washington Post. Retrieved 2006-03-07.
  53. ^ Roche, Walter (August 8, 2005). "Bush removal ended Guam investigation: US attorney's demotion halted probe of lobbyist". Los Angeles Times. Retrieved 2007-03-12.
  54. ^ 28 U.S.C. § 541
  55. ^ a b 28 U.S.C. § 546 (U.S. Code prior to amendments of the USA PATRIOT Act, as of the retrieval date March 15, 2007.}} Cite error: The named reference "Title28 Section546 before Patriot" was defined multiple times with different content (see the help page).
  56. ^ Marisa Taylor and Greg Gordon (January 26, 2007). "Gonzales appoints political loyalists into vacant U.S. attorneys slots". McClatchy Newspapers. Retrieved 2007-03-18. {{cite news}}: Check date values in: |date= (help)
  57. ^ http://thomas.loc.gov/cgi-bin/query/F?c109:6:./temp/~c10947tdF0:e177847:
  58. ^ Dan Eggen and John Solomon (March 13, 2007). "Firings Had Genesis in White House Ex-Counsel Miers First Suggested Dismissing Prosecutors 2 Years Ago, Documents Show". Washington Post. {{cite news}}: Check date values in: |date= (help)
  59. ^ Press release from Department of Justice under George W. Bush
  60. ^ a b "Current situation is distinct from Clinton firings of U.S. attorneys". McClatchy Newspapers. March 13, 2007. {{cite news}}: Check date values in: |date= (help)
  61. ^ "The Hubbell Standard". Dow Jones & Company, Inc. March 14, 2007. {{cite news}}: Check date values in: |date= (help)
  62. ^ a b Cohen, Adam (February 26, 2007). "Why Have So Many U.S. Attorneys Been Fired? It Looks a Lot Like Politics". New York Times. Retrieved 2007-03-12.
  63. ^ "Cleaning House". Time Magazine. Sep. 25, 1978. Retrieved 2007-03-13. {{cite news}}: Check date values in: |date= (help)
  64. ^ "Gonzales Chief Of Staff Rebuts Rove Claim That Clinton Purged Prosecutors Too". Think Progress. March 13, 2007. Retrieved 2007-03-13.
  65. ^ "US Attorneys Who Have Served Less Than Four-year Terms" (PDF). Congressional Research Service. February 22, 2007. Retrieved 2007-03-15. {{cite news}}: Cite has empty unknown parameter: |1= (help)
  66. ^ "United States Presidential Nominations". United States Congress. Retrieved 2007-03-18. {{cite web}}: Cite has empty unknown parameter: |1= (help)
  67. ^ "Released E-mails regarding firing of USAs" (PDF). Wall Street Journal. Retrieved 2007-03-18. {{cite web}}: Cite has empty unknown parameter: |1= (help)

External links

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