| U.S. Department of Justice An Investigation into the Removal of Nine
U.S. Attorneys in 2006 U.S. Department of Justice Office of the Inspector
General U.S. Department of Justice Office of Professional Responsibility
September 2008 i TABLE OF CONTENTS CHAPTER ONE INTRODUCTION
................................................................ 1 I.
Methodology of the Investigation
....................................................... 2 II. Organization
of this Report
............................................................... 4 CHAPTER
TWO
BACKGROUND..................................................................
7 I. U.S. Attorneys
..................................................................................
7 II. Selection of U.S.
Attorneys................................................................
8 III. Department Evaluation and Interaction with U.S. Attorneys
............. 9 IV. Backgrounds of Department
Officials.............................................. 10 A. Alberto
Gonzales
................................................................... 11 B.
Kyle Sampson
....................................................................... 11
C. Monica Goodling
................................................................... 11 D.
Paul McNulty
........................................................................
12 E. Michael Elston
...................................................................... 12
F. David Margolis
...................................................................... 13
G. William Mercer
...................................................................... 13
CHAPTER THREE FACTUAL
OVERVIEW.................................................. 15 I.
Development of U.S. Attorney Removal Lists
................................... 15 A. Genesis of Plan to Remove U.S.
Attorneys.............................. 16 B. Process to Identify U.S.
Attorneys for Removal....................... 16 C. The First List - March
2, 2005............................................... 18 1. Input from
Comey and Margolis ................................... 21 2. Reaction to
the List from the Office of the White House
Counsel................................................... 22 3. Fall 2005
- Further Consultations about the Removal of U.S.
Attorneys.......................................................... 23 a.
Battle .................................................................
23 b.
Mercer................................................................ 23
c. Comey................................................................
24 d. Buchanan ..........................................................
24 D. The Second List - January
2006............................................ 25 ii 1. Sampson’s
January 1, 2006, Draft List ........................ 25 2. The January 9,
2006, Memorandum from Sampson to the White House
...................................................... 27 3. The First
Removal: Todd Graves.................................. 29 E. The Third
List - April 14, 2006 .............................................. 30 1.
Heffelfinger
.................................................................. 31 2.
Ryan............................................................................
32 3. The Plan to Replace Cummins with Griffin ................... 33 a.
Miers’s Request Regarding Griffin ....................... 33 b. Battle
Tells Cummins to Resign .......................... 34 4. Sampson Suggests
that Patrick Fitzgerald Be Removed 34 F. The Fourth List - September 13,
2006................................... 35 1. Sampson’s “Consensus”
Process in Compiling the List . 37 2. The Removal Plan Takes
Shape.................................... 39 G. Elston’s List - November
1, 2006........................................... 40 H. The Fifth List -
November 7, 2006 ......................................... 42 1. Iglesias
is Added to the List.......................................... 42 2. The
Removal Plan ........................................................ 43
3. Reaction to the November 7 List and Plan .................... 44 I. The
Sixth List - November 15, 2006 ...................................... 46
1. The Revised
Plan.......................................................... 46 2.
Execution of the Plan is Postponed............................... 47 3.
The November 27, 2006, Meeting in the Attorney General’s
Office.............................................. 48 a. Gonzales’s
Recollection of the November 27 Meeting
......................................... 49 b. McNulty Asks to Add Ryan
to the List ................. 49 c. White House Approval of the Removal
Plan ......... 50 J. The Seventh and Final List - December 4, 2006
.................... 50 1. The White House Approves the Plan
............................. 50 2. The Implementation of the Removal
Plan...................... 51 II. The Aftermath of the Removals
....................................................... 52 A. The U.S.
Attorneys’ Initial Reactions...................................... 53 B.
Concern that the Department Intended to Bypass Senate Confirmation for
Replacement U.S. Attorneys ........................ 54 C. The Department
Begins to Publicly Respond to Concerns About the Removals
.............................................................. 55 iii 1.
Articles About Cummins’s Removal.............................. 55 2.
Senators Express Concern About the Removals............ 57 3. Sampson’s
January 2007 Briefing of Senate Judiciary Committee Staff
........................................................... 58 D. Elston’s
Telephone Calls to Charlton and McKay on January 17,
2007.................................................................. 61
1. Telephone Call to McKay..............................................
62 2. Telephone Call to
Charlton........................................... 63 3. Elston’s
Description of the Telephone Calls .................. 63 E. Attorney
General Gonzales’s January 18, 2007, Testimony Before the Senate
Judiciary Committee ................................. 64 F. Cummins Seeks
Advice from Elston ...................................... 65 G. McNulty’s
February 6, 2007, Testimony Before the Senate Judiciary Committee
............................................................. 65 1.
McNulty’s Use of the Term “Performance-Related” to Describe the
Removals ................................................. 65 2. Attorney
General Gonzales’s Reaction to McNulty’s
Testimony....................................................................
67 3. U.S. Attorneys’ Reaction to McNulty’s Testimony.......... 68 H.
The February 8 Letter from Several Senators ......................... 68
I. McNulty’s February 14 Closed Briefing for the Senate Judiciary
Committee.................................................. 69 1.
Preparation for the Briefing .......................................... 69
2. McNulty’s Briefing for the Senate Judiciary Committee 71 J. Elston’s
Alleged Threat to Cummins ...................................... 73 1.
Cummins’s Quote in The Washington Post................... 73 2. Elston’s
Telephone Call to Cummins ............................ 74 a. Cummins’s
Account of the Telephone Call .......... 74 b. Cummins’s E-mail to
Bogden, Charlton, Iglesias, Lam, and McKay about the Telephone Call
......... 75 c. Elston’s Account of the Telephone Call ...............
76 K. The Department’s Response to the Senators’ Letter
............... 77 L. Events in March 2007
........................................................... 78 1. March 3
Washington Post Article ................................. 78 2. House and
Senate Hearings ......................................... 78 3. Cummins’s
February 20 E-mail Surfaces ..................... 79 4. Moschella’s
Testimony Before the House Judiciary
Subcommittee..............................................................
82 a. Preparation Sessions .......................................... 82
iv b. Discussion in Preparation Sessions About White House Involvement
............................................. 82 c. March 5 Meeting at the
White House to Discuss Moschella’s Testimony
........................................ 84 d. Moschella’s Testimony
........................................ 85 M. Attorney General Gonzales’s
March 7 Op-Ed Article............... 87 N. Additional Documents Come to
Light..................................... 89 O. Sampson’s
Resignation.......................................................... 93
P. The Scudder Memorandum
................................................... 93 Q. Attorney General
Gonzales’s March 13 Press Conference ....... 94 R. Attorney General
Gonzales Directs an Investigation ............... 95 S. Attorney General
Gonzales’s Conversation with Goodling....... 95 T. Goodling Resigns from
the Department ................................. 97 U. Subsequent Events
............................................................... 97 CHAPTER
FOUR TODD GRAVES
............................................................. 99 I.
Introduction
...................................................................................
99 A. Graves’s
Background............................................................. 99
1. The EARS Evaluation of Graves’s Office.......................100 2.
Graves’s Status on the Removal lists...........................100 B.
Reasons Proffered for Graves’s
Removal................................101 II. Chronology of Events
Related to Graves’s Removal........................ 102 A. The
Misconduct Allegations
..................................................102 1. Allegations
Concerning Graves’s Wife ..........................102 2. Anonymous
Allegations Regarding Graves...................104 B. Complaints About
Graves.....................................................105 1. Senator
Bond’s Congressional Staff Complain About Graves to White House
Staff........................................105 2. The Department Learns
About Bond’s Staff’s Complaints
.................................................................106 C.
Graves is Told to Resign
.......................................................108 D. Department
Comments About Graves’s Resignation .............110 III.
Analysis........................................................................................
111 CHAPTER FIVE H.E. “BUD”
CUMMINS................................................... 115 v I.
Introduction
.................................................................................
115 A. Cummins’s Background
.......................................................115 B. The EARS
Evaluations of Cummins’s Office..........................116 C. Cummins’s
Status on the Removal Lists...............................116 D. Reasons
Proffered for Cummins’s Removal ...........................116 II.
Chronology of Events Related to Cummins’s Removal ...................
117 A. Cummins’s
Performance.......................................................117 1.
Sampson’s Statements................................................117
2. Department Managers’ Statements..............................118 B.
Cummins’s Removal and Griffin’s Appointment ....................119 1.
Griffin’s
Background...................................................119 2.
Griffin Learns Cummins’s Name is on the Removal List
...............................................................120 3.
Griffin Expresses Interest in the U.S. Attorney Position
......................................................................121
4. January 2006 Removal List Identifies Griffin as Cummins’s
Replacement.............................................124 5. Griffin’s
Nomination Process .......................................125 a.
Allegation that the Department Intended to Bypass the Senate Confirmation
Process ...........126 b. The Pre-Nomination Process
..............................127 c. Indefinite Interim Appointment
Proposed for Griffin
...............................................................128 d.
Griffin Returns to Arkansas as a Special Assistant U.S.
Attorney......................................131 C. Attorney General
Gonzales Appoints Griffin Interim U.S. Attorney
...............................................................................131
D. Public Concerns About Griffin’s Appointment
.......................132 E. The Attorney General’s and the Deputy
Attorney General’s Testimony
............................................................................135
F. The Department’s Written Response to Congressional Concerns About
Griffin’s Appointment..................................137 G. Griffin
Withdraws.................................................................140
H. Taylor’s Comment Concerning Cummins..............................141
III.
Analysis........................................................................................
142 A. Cummins’s
Removal.............................................................142 B.
Misleading Statements about Cummins’s Removal ...............144 vi C.
Interim Appointment of
Griffin..............................................145 CHAPTER SIX DAVID
IGLESIAS............................................................. 149
I. Introduction
.................................................................................
149 A. Iglesias’s
Background...........................................................149
B. The EARS Evaluations of Iglesias’s
Office..............................150 C. Iglesias’s Status on the
Removal Lists...................................151 D. Reasons Proffered
for Iglesias’s Removal ...............................151 E.
Investigative
Limitations.......................................................153 II.
Chronology of Events Related to Iglesias’s Removal
....................... 155 A. Alleged Concerns about Iglesias’s
Management.....................155 B. Voter Fraud and Public Corruption
Matters..........................158 1. Initial Complaints of Voter Fraud
................................158 2. Representative Wilson’s Complaint
Concerning Voter Fraud
................................................................159 3.
Formation of the Election Fraud Task Force................160 4.
Continuing Complaints About Voter Fraud..................161 5. Election
Fraud Task Force Review of Complaints.........163 6. Iglesias’s Meeting
with Weh Regarding his Handling of Voter Fraud Complaints
..........................................164 7. Complaints to the White
House Regarding Iglesias’s Handling of Voter Fraud
Cases....................................165 8. Complaints Concerning
Iglesias’s Handling of Public Corruption
Cases........................................................166 a. The
Vigil Case....................................................166 b. The
“Courthouse Case”......................................168 9. Senator
Domenici’s Calls to Attorney General Gonzales Regarding Iglesias
........................................168 10. Complaints to the
Department Regarding Voter Fraud and Corruption
Cases.......................................170 11. Complaints to Senator
Domenici .................................172 12. Complaints to Karl Rove
about Delays in the Courthouse Case
........................................................172 13. Senator
Domenici’s Telephone Call to Deputy Attorney General McNulty
...........................................174 14. White House
Communications with Attorney General
Gonzales.....................................................................175
15. Iglesias’s Meeting with Rogers
.....................................176 16. Representative Wilson’s
Telephone Call to Iglesias.......177 17. Senator Domenici’s Telephone
Call to Iglesias .............179 vii 18. Allegation Concerning
Representative Wilson’s Telephone Call to Harriet Miers...................................181
III. Iglesias’s
Removal.........................................................................
182 A. Iglesias is Added to Sampson’s
List.......................................182 B. White House Knowledge of
the Decision to Remove Iglesias...185 C. Iglesias is Told to Resign
......................................................185 IV.
Analysis........................................................................................
186 A. Iglesias was not Removed Because of Management Issues ....187 B.
Complaints about Iglesias’s Handling of Voter Fraud and Public
Corruption Cases................................................190 C.
Additional
Issues..................................................................194
D. Unanswered
Questions.........................................................197
CHAPTER SEVEN DANIEL BOGDEN......................................................
201 I. Introduction
.................................................................................
201 A. Bogden’s
Background...........................................................201
B. The EARS Evaluation of Bogden’s Office
...............................201 C. Bogden’s Status on the Removal
Lists ..................................201 D. Reasons Proffered for
Bogden’s Removal...............................202 II. Chronology of
Events Related to Bogden’s Removal ....................... 204 A.
Obscenity
Prosecution..........................................................205
1. Obscenity Prosecution Task Force...............................205 2.
Task Force Request to Bogden and Complaints About His Response
....................................................206 B. Bogden’s
Alleged Lack of Energy and Leadership ..................209 C. Patriot Act
Criticism .............................................................211
D. McNulty’s Qualms About Removing Bogden..........................212
E. Bogden’s Removal and Gonzales’s Concerns
.........................214 III.
Analysis........................................................................................
214 CHAPTER EIGHT PAUL
CHARLTON....................................................... 219 I.
Introduction
.................................................................................
219 A. Charlton’s
Background.........................................................219
viii B. The EARS Evaluation of Charlton’s Office
.............................219 C. Charlton’s Status on the Removal
Lists ................................219 II. Chronology of Events Related
to Charlton’s Removal..................... 220 A. Charlton’s
Discussions With Senator Kyl..............................221 B. Tape
Recording Interrogations ..............................................223
1. Department Considers Tape Recording Policy..............223 2. Charlton
Implements a Taping Policy in His District....224 3. Pilot Project for
Charlton’s District ..............................225 C. The Death
Penalty Case........................................................227 1.
The Department’s Procedure for Death Penalty Cases..227 2. The Death
Penalty Decision.........................................227 3. Charlton
Seeks Reconsideration of the Decision ..........229 4. Charlton Asks to
Speak to Attorney General Gonzales About the
Decision......................................................231 5.
Attorney General Gonzales Denies Charlton’s Request to
Reconsider..............................................................233
6. Sampson Places Charlton’s Name on the September 2006 Removal List
.....................................234 D. Obscenity Prosecutions
........................................................234 1. The
Obscenity Prosecution Task Force Requests Charlton’s
Assistance..................................................235 2. Task
Force Complaints About Charlton.......................235 E. Investigation
of Congressman Renzi .....................................238 F. Charlton’s
Resignation .........................................................240
III.
Analysis........................................................................................
240 A. Renzi
Prosecution.................................................................240
B. Obscenity
Prosecution..........................................................241
C. Discussion with Senator Kyl About Resources ......................241
D. Tape Recording
Policy...........................................................242 E.
The Death Penalty
Case........................................................244 CHAPTER
NINE JOHN
MCKAY............................................................... 247
I. Introduction
.................................................................................
247 A. McKay’s
Background............................................................247
1. The EARS Evaluations of McKay’s Office .....................247 2.
McKay’s Status on the Removal Lists ..........................247 ix B.
Reasons Proffered for McKay’s Removal
................................248 II. Chronology of Events Related to
McKay’s Removal ........................ 248 A. The Wales Murder
Investigation............................................248 B. The
Northwest LInX Project
..................................................251 C. The Washington
State Gubernatorial Election.......................252 1. McKay’s Office
Initiates a Preliminary Inquiry .............252 2. Telephone Call to
McKay from Congressman Hastings’s Chief of Staff
..............................................253 3. Complaints About
McKay’s Handling of Voter Fraud Allegations
..................................................................255 4.
Statements of Department Officials .............................257 D.
2006 LInX Issues
.................................................................258 1.
Contentious Meeting with McNulty and Mercer ...........259 2. McKay’s
Bid for a Judicial Nomination ........................260 3. McKay’s
August 30 Letter to McNulty..........................261 4. McNulty’s
Response to McKay’s letter..........................262 E. McKay Appears
on the September 2006 Removal List ...........263 F. McKay is Told to
Resign........................................................264 G.
Allegation that McKay was Removed Because His District’s Sentencing
Statistics Were Out of Line .................................264 III.
Analysis........................................................................................
266 A. Voter Fraud Complaints
.......................................................266 B. Wales Murder
Investigation ..................................................267 C.
Sentencing
Statistics............................................................268
D. LInX.....................................................................................269
CHAPTER TEN CAROL
LAM................................................................... 271
I. Introduction
.................................................................................
271 A. Lam’s Background
...............................................................271 B. The
EARS Evaluation of Lam’s Office....................................271
C. Lam’s Status on the Removal Lists
.......................................272 D. Reasons Proffered for Lam’s
Removal....................................272 II. Chronology of Events
Related to Lam’s Removal............................ 273 A. Firearms
Cases
....................................................................273 x
B. Immigration Cases
...............................................................277 C. Lam’s
Removal
.....................................................................283
D. Public Corruption
Investigations...........................................284 III.
Analysis........................................................................................
285 CHAPTER ELEVEN MARGARET CHIARA................................................
289 I. Introduction
.................................................................................
289 A. Background
.........................................................................289
B. The EARS Evaluation of Chiara’s Office
................................289 C. Chiara’s Status on the Removal
Lists....................................290 D. Reasons Proffered for
Chiara’s Removal ................................290 II. Chronology of
Events Related to Chiara’s Removal ........................ 292 A.
Chiara’s Inclusion on the Removal Lists
...............................292 B. Factual Chronology Relating to
Conflict in Western District of Michigan U.S. Attorney’s
Office.........................................293 1. U.S. Attorney’s
Office ..................................................293 2. Senior
Management Conflicts in Chiara’s Office ..........293 a. Rumors and
Allegations Regarding Relationship with AUSA and
Favoritism.............293 (1) Chiara’s friend is hired
......................................293 (2) Rumors about their
relationship ........................295 b. Meyer Confronts Chiara About
her Relationship with the AUSA...............................299 3. Chiara
Requests Assistance from EOUSA....................301 4. Additional
Incidents....................................................302 5. The
Relationship Rumors Spread ................................303 6. Chiara’s
Request for an OPR Investigation...................306 7. Chiara is Given
Advance Notice of Her Removal...........308 8. Chiara’s Removal
........................................................309 III.
Analysis........................................................................................
309 CHAPTER TWELVE KEVIN RYAN
........................................................... 313 I.
Introduction
.................................................................................
313 A. Background
.........................................................................313
B. The EARS Evaluations of Ryan’s Office
.................................313 xi C. Status on the Removal Lists
.................................................314 D. Reasons Proffered
for Ryan’s Removal ..................................315 II. Chronology
of Events Related to Ryan’s Removal........................... 315 A.
Concerns About Ryan’s Management....................................315
B. Sampson’s Discussions About Ryan in Early 2005 ...............316 C.
Fall 2005 EARS Evaluation is Postponed ..............................317
D. Events in
2006.....................................................................317
1. Ryan is on Sampson’s January 9, 2006, List of U.S. Attorneys
Recommended for Removal..........................317 2. Controversy
Concerning the Methodology of the EARS Evaluation
........................................................318 3. The March
2006 EARS Evaluation ..............................318 4. The Special EARS
Evaluation......................................319 E. The Removal Lists
................................................................321 III.
Analysis........................................................................................
323 CHAPTER THIRTEEN CONCLUSIONS
.................................................... 325 I. Removal
Process...........................................................................
326 A. Oversight of the Process
.......................................................326 B.
Implementation of the Removal Plan.....................................328
C. Reasons for the Removals of Individual U.S. Attorneys .........331 D.
Notification to the U.S.
Attorneys..........................................336 II. White House
Involvement in the Removal Process ......................... 337 III. The
Attorney General’s Interim Appointment Authority ................. 338
IV. The Conduct of Senior Department
Officials.................................. 339 A. Alberto Gonzales
..................................................................339 1.
Gonzales’s Statements at the March 13 Press
Conference..................................................................341
2. Gonzales’s Conversation with Goodling .......................342 B.
Paul McNulty
.......................................................................344
C. Kyle Sampson
......................................................................346
1. Misleading Statements to the White House..................347 2.
Misleading Statements to Congress.............................348 3.
Misleading Department Officials..................................349 xii
D. Monica Goodling
..................................................................351 E.
David Margolis
.....................................................................352
F. Michael Elston
.....................................................................354
G. William Moschella
................................................................356 V.
Conclusion
...................................................................................
356 1 CHAPTER ONE INTRODUCTION On December 7, 2006, at the direction of
senior Department of Justice (Department) officials, seven U.S. Attorneys
were told to resign from their positions.1 Two other U.S. Attorneys had
been told to resign earlier in 2006.2 When these removals became public in
late 2006 and early 2007, members of Congress began to raise questions and
concerns about the reasons for the removals, including whether they were
intended to influence certain prosecutions. Beginning in March 2007, the
Office of the Inspector General (OIG) and the Office of Professional
Responsibility (OPR) conducted this joint investigation into the removals
of these U.S. Attorneys.3 Our investigation focused on the reasons for the
removals of the U.S. Attorneys and whether they were removed for partisan
political purposes, or to influence an investigation or prosecution, or to
retaliate for their actions in any specific investigation or prosecution.
We also examined the process by which the U.S. Attorneys were selected for
removal, and we sought to identify the persons involved in those
decisions, whether in the Department, the White House, Congress, or
elsewhere. In addition, we investigated whether the Attorney General or
other Department officials made any false or misleading statements to
Congress or the public concerning the removals, and whether they attempted
to influence the testimony of other witnesses. Finally, we examined
whether the Attorney General or others intended to bypass the Senate
confirmation process in the replacement of any removed U.S. Attorney
through the use of the Attorney General’s appointment power for Interim
U.S. Attorneys. 1 The U.S. Attorneys were Daniel Bogden, Paul Charlton,
Margaret Chiara, David Iglesias, Carol Lam, John McKay, and Kevin Ryan. 2
On January 24, 2006, Todd Graves was told to resign; on June 14, 2006, H.E.
“Bud” Cummins was told to resign. 3 In addition, we also conducted
joint investigations of three other matters related to the subject matter
of this investigation. We investigated allegations that the Department’s
former White House Liaison, Monica Goodling, and others in the Office of
the Attorney General used political considerations to assess candidates
for career positions in the Department, and on July 28, 2008, we issued a
report describing our findings. We also investigated allegations that
officials overseeing the Department’s Honors Program and Summer Law
Intern Program used political considerations in assessing candidates for
those programs, and on June 24, 2008, we issued a report describing our
findings in that investigation. In addition, we investigated allegations
that former Civil Rights Division Assistant Attorney General (AAG) Bradley
Schlozman and others used political considerations in hiring and personnel
decisions in the Civil Rights Division. We will issue a separate report
describing the results of that investigation. 2 I. Methodology of the
Investigation During the course of our investigation, we conducted
approximately 90 interviews.4 Among the witnesses we interviewed were
former Attorney General Alberto Gonzales; former Deputy Attorneys General
Paul McNulty, James Comey, and Larry Thompson; and numerous current and
former employees of the Office of the Attorney General (OAG), the Office
of the Deputy Attorney General (ODAG), and the Executive Office for United
States Attorneys (EOUSA). We interviewed eight of the nine U.S. Attorneys
who were removed - Daniel Bogden, Paul Charlton, Margaret Chiara, Bud
Cummins, Todd Graves, David Iglesias, John McKay, and Carol Lam. The ninth
U.S. Attorney, Kevin Ryan, declined our request for an interview. We also
attempted to interview Monica Goodling, a former counsel to Attorney
General Gonzales and the Department’s White House Liaison. She declined
to cooperate with our investigation. However, on May 23, 2007, Goodling
testified before the United States House of Representatives Committee on
the Judiciary pursuant to a grant of immunity issued by the United States
District Court for the District of Columbia, and we reviewed the
transcript of that hearing. We also attempted to interview White House
staff who may have played a role in the removals of the U.S. Attorneys. We
discussed our request with the Office of Counsel to the President (White
House Counsel’s Office), and that office encouraged current and former
White House employees to agree to be interviewed by us. Several former
White House staff members agreed to be interviewed, including Deputy White
House Counsel David Leitch; Director of Political Affairs Sara Taylor;
Deputy Director of Political Affairs Scott Jennings; Associate White House
Counsel Dabney Friedrich, Christopher Oprison, and Grant Dixton; and
Paralegal Colin Newman. However, other former White House staff, including
White House Counsel Harriet Miers, Assistant to the President and Deputy
Chief of Staff and Senior Advisor Karl Rove, Deputy White House Counsel
William Kelley, and Associate White House Counsel Richard Klingler,
declined our request to interview them. Miers’s attorney told us that
although he understood that considerations of executive privilege were not
an issue between the Department of Justice and the White House since both
are part of the Executive Branch, an interview with us might undermine
Miers’s ability to rely on the instructions she received from the White
House directing her to refuse to appear for Congressional testimony. Rove’s
attorney advised us after consultation with Rove that he 4 Some of the
people we interviewed were also interviewed in connection with our other
joint investigations described in footnote 3. 3 declined our request for
an interview. We were informed by the White House Counsel’s Office that
both Kelley and Klingler also declined our request. We also interviewed
several members of Congress and congressional staff regarding the
removals. We interviewed Congresswoman Heather Wilson in relation to
Iglesias’s removal. We interviewed Congressman “Doc” Hastings and
his former Chief of Staff, Ed Cassidy, in relation to the removal of
McKay. We requested an interview with Senator Christopher S. “Kit”
Bond in relation to Graves’s removal, and he provided us with a written
statement. We also attempted to interview Senator Pete V. Domenici and his
Chief of Staff, Steven Bell, about the removal of Iglesias and any
conversations they had with the White House or the Department related to
the removal. However, Senator Domenici and Bell declined our requests for
an interview.5 In our investigation, we also reviewed several thousand
electronic and hard copy documents, including documents the Department
produced in response to Congressional investigations of the U.S. Attorney
removals.6 We obtained and searched the e-mail accounts of numerous
current and former Department employees in, among other Department
components, the Attorney General’s Office, the Deputy Attorney General’s
Office, and EOUSA. We also requested and received documents from the White
House showing communications between the White House and outside persons
and entities, including the Department of Justice, related to the removal
of the U.S. Attorneys. However, the White House Counsel’s Office
declined to provide internal e-mails or internal documents related to the
U.S. Attorney removals, stating that these documents were protected from
disclosure because, according to the White House Counsel’s Office, such
material “implicate[s] White House confidentiality interests of a very
high order. . . .” The White House did not formally assert executive
privilege as grounds for withholding the material from us, but asserted
that its “internal communications . . . are, in our judgment, covered by
the deliberative process and/or presidential communications components of
executive privilege in the event of a demand for them by Congress.” As
we discuss in more detail in Chapter Three, in the course of our
investigation we also learned that in early March 2007 Associate White
House Counsel Michael Scudder had interviewed Department and White House 5
Domenici declined to be interviewed, but said he would provide written
answers to questions through his attorney. We declined this offer because
we did not believe it would be a reliable or appropriate investigative
method under the circumstances. 6 Some of these documents were produced to
Congress in redacted form. However, we had access to and reviewed these
documents in unredacted form. 4 personnel at the request of White House
Counsel Fred Fielding in an effort to understand the circumstances
surrounding the U.S. Attorney removals and be in a position to respond to
this issue.7 Based on his interviews, Scudder created a memorandum for
Fielding containing a timeline of events, which was provided to the
Department of Justice’s Office of Legal Counsel (OLC) and to the
Attorney General. Because the Scudder chronology appeared to contain
information we had not obtained elsewhere in our investigation, we
requested that OLC produce a complete copy of the final Scudder memorandum
and all drafts of the memorandum. OLC declined to produce the document,
stating that the White House Counsel’s Office directed it not to do so.
The White House Counsel’s Office agreed to provide us with one paragraph
in the memorandum related to information about Iglesias’s removal, and
two paragraphs containing information Rove provided to Scudder. White
House Counsel notified us that these paragraphs contained information
similar to previous public statements the White House made in the press.
The White House Counsel’s Office declined to provide to us a full copy
of the memorandum, stating that it has a “very strong confidentiality
interest” in not providing documents that were prepared to advise and
assist the President and his advisors “in response to a public, ongoing,
and significant controversy.”8 The White House Counsel’s Office
eventually provided to us a heavily redacted version of the document, but
the redactions made the document virtually worthless as an investigative
tool. We disagree with the White House’s rationale for withholding this
document, particularly since the document was shared with OLC and e-mail
records also show that drafts had been provided to former Attorney General
Gonzales. We also disagree with the White House Counsel’s Office
decision not to provide us White House internal documents related to the
U.S. Attorney removals and, as we discuss below, believe it hindered our
investigation. II. Organization of this Report In Chapter Two of this
report, we provide background information about the jurisdiction and
duties of U.S. Attorneys, how they are selected and evaluated, and their
position in the Department’s organizational structure. 7 We learned
about this document from the Department’s Office of Legal Counsel. In
response to our document request, OLC had provided to us its final
chronology, deleting all references to the Scudder chronology and all
information derived from that document. When we obtained earlier drafts of
the OLC chronology, we saw references to the Scudder memorandum as support
for certain propositions in the chronology, including alleged
communications between a member of Congress and the White House regarding
Iglesias. 8 A copy of a letter from Emmet Flood, Special Counsel to the
President, describing the reasons for the White House’s decision is
included in Appendix A. 5 In Chapter Three, we describe in detail the
background leading to the removal of the U.S. Attorneys in 2006, including
the genesis of the plan to replace them, the various modifications of the
plan in 2005 through 2006, and the involvement of the White House and
Department officials in the development of the plan. We then discuss the
removals and events following the removals, including the initial
Congressional and public focus on the removals, the Department’s efforts
to explain the removals, the public statements and testimony of senior
Department officials about the reasons for the removals, and the
Congressional hearings regarding the removals. In Chapters Four through
Twelve, we discuss in detail the circumstances surrounding the removal of
each of the nine U.S. Attorneys. We examine the reasons the Department
offered for each removal, the process by which the U.S. Attorneys were
selected for removal, the process by which they were removed, and our
conclusions regarding their removal. In Chapter Thirteen, we provide our
conclusions about the process by which the U.S. Attorneys were selected
for removal and removed, the reasons proffered for removal, the actions of
senior Department leaders in the removal process, and whether any
Department employee made false or misleading statements to Congress or the
public related to the removals.9 9 With the exception of the nine U.S.
Attorneys who were removed in 2006, we do not discuss in detail all of the
U.S. Attorneys Kyle Sampson or others at the Department may have
considered for removal between 2005 and 2006. However, in describing the
removal selection process, we identify those U.S. Attorneys Sampson
specifically mentioned to the White House in removal lists and e-mail
correspondence concerning the removals. We also note what Department
officials told us about why these U.S. Attorneys ultimately were not
removed. 6 [PAGE INTENTIONALLY LEFT BLANK] 7 CHAPTER TWO BACKGROUND In
this chapter, we briefly discuss the duties of U.S. Attorneys, how they
are selected and evaluated, and their position in the Department’s
organizational hierarchy. I. U.S. Attorneys There are 93 U.S. Attorneys
throughout the United States, Puerto Rico, the Virgin Islands, Guam, and
the Commonwealth of the Northern Mariana Islands. Under the supervision of
the Attorney General, who has statutory authority over all litigation in
which the United States or any of its agencies is a party, U.S. Attorneys
serve as the federal government’s chief law enforcement officers in
their districts.10 See U.S. Attorney’s Manual (USAM) § 3-2.100. U.S.
Attorneys must interpret and implement the policies of the Department in
the exercise of their prosecutorial discretion. As stated in the
Department’s USAM, a U.S. Attorney’s “professional abilities and the
need for their impartiality in administering justice directly affect the
public’s perception of federal law enforcement.” USAM § 3-2.140. U.S.
Attorneys are appointed by the President with the advice and consent of
the Senate. See 28 U.S.C. § 541. Because they are Presidential appointees
and not covered by standard civil service protections, U.S. Attorneys are
subject to removal at the will of the President.11 U.S. Attorneys are
appointed for 4-year terms, although upon expiration of their 4-year term
they typically remain in office until they choose to leave or there is a
change in Administration. USAM § 3-2.120. Prior to March 2006, in the
event of a vacancy in a U.S. Attorney’s position, the First Assistant
U.S. Attorney became the Acting U.S. Attorney, pending confirmation of a
Presidential appointee, for a maximum 210-day period pursuant to 5 U.S.C.
§ 3345(a)(1). Alternatively, the Attorney General could appoint an
Interim U.S. Attorney for that district to serve for a maximum of 120
days. 28 U.S.C. § 546(a) and (c). After 120 days, the federal district
court could either reappoint the Interim U.S. Attorney or make its own 10
One U.S. Attorney is assigned to each of the judicial districts, with the
exception of Guam and the Commonwealth of the Northern Mariana Islands
where a single U.S. Attorney serves both districts. 11 Presidential
discretion under the statute is broad but not unlimited. The President has
the discretion to remove a U.S. Attorney when “he regards it for the
public good.” See, e.g., Parsons v. United States,167 U.S. 324, 343
(1897). Since a removal for an illegal or improper purpose would be
contrary to the “public good,” it would be impermissible. 8
appointment to serve until the vacancy is filled through Senate
confirmation of a Presidential appointment. See 28 U.S.C. § 546 (c) and
(d). At the request of the Department, Congress enacted amendments to the
USA Patriot Act in March 2006 which eliminated the district court from the
process, removed the 120-day time limit, and permitted the Interim U.S.
Attorney appointed by the Attorney General to serve until a Presidentially
appointed U.S. Attorney was confirmed. See 28 U.S.C. § 546; Pub.L.
109-177, § 502. As discussed in Chapter Three, in response to the events
described in this report, in June 2007 Congress repealed this amendment.
Therefore, according to 28 U.S.C. § 546, an Interim U.S. Attorney
appointed by the Attorney General may serve up to 120 days or until the
confirmation of a Presidentially appointed U.S. Attorney. If an Interim
U.S. Attorney appointment expires before a Presidentially appointed U.S.
Attorney is confirmed, the federal district court for that district
appoints an Interim U.S. Attorney to serve until the vacancy is filled.
See 28 U.S.C. § 546; see also USAM at § 3-2.160. II. Selection of U.S.
Attorneys To identify candidates for U.S. Attorney positions, the White
House typically seeks recommendations from political leaders in the
various districts across the country. During the time period under review
in this report, Senators from the President’s party normally submitted
recommendations for U.S. Attorney candidates to the White House
Presidential Personnel Office (PPO) or to staff in the White House Office
of Political Affairs (OPA). If no Republican Senator represented a
particular district, White House staff contacted OPA’s designated “political
lead” for that district. After panel interviews with Department and
White House officials, and Deputy Attorney General and Attorney General
concurrence, a candidate’s name was recommended to the President. If the
President approved the recommendation, the Federal Bureau of Investigation
(FBI) began a background investigation of the candidate. The results of
the background investigation were forwarded by EOUSA to the Department’s
White House Liaison. After review of the background investigation, the
White House Counsel’s Office would state whether the candidate was “cleared.”
If the candidate was cleared, the White House informed EOUSA, which sent
the nomination paperwork to the White House. The White House would then
publicly announce the President’s “intent to nominate” the
candidate, and the White House would forward the nomination paperwork to
the Senate. 9 While their nominations were before the Senate, U.S.
Attorney candidates were subject to a “blue slip” process by which
their home state Senators approved or disapproved of the nomination. The
blue slip is a form printed on blue paper that the Senate Judiciary
Committee uses to allow the home state Senators to express their views
concerning a presidential nominee. According to the Congressional Research
Service (CRS), by Senate tradition if a home state Senator indicates
disapproval or otherwise fails to note approval on the blue slip, the
chair of the Senate Judiciary Committee normally declines to take action
on the nomination out of deference to the home state Senator. See CRS
Report for Congress, “U.S. Attorneys Who Have Served Less Than Full
Four-Year Terms, 1981-2006,” February 22, 2007, p. 1. III. Department
Evaluation and Interaction with U.S. Attorneys Appendix B contains a chart
of the Department’s organizational structure. According to federal
regulation, the Attorney General supervises and directs the administration
and operation of the Department of Justice, including the U.S. Attorneys’
Offices. See 28 C.F.R. § 0.5. The Deputy Attorney General assists the
Attorney General in providing overall supervision and direction to all
organizational units of the Department, including the U.S. Attorneys’
Offices. See 28 C.F.R. § 0.15. The Deputy Attorney General is authorized
to exercise all the power and authority of the Attorney General, except
where such power or authority is prohibited by law from delegation or has
been delegated to another official. In the absence of the Attorney
General, the Deputy Attorney General acts as the Attorney General. See 28
C.F.R. § 0.15. The Deputy Attorney General oversees the day-to-day
operations of the Department of Justice and is the direct supervisor of
U.S. Attorneys. The Executive Office for United States Attorneys performs
two primary functions with respect to the U.S. Attorneys’ Offices: (1)
evaluating the performance of the U.S. Attorneys’ Offices, making
appropriate reports and taking corrective action where necessary; and (2)
facilitating coordination between the U.S. Attorneys’ Offices and other
organizational units of the Department of Justice. See 28 C.F.R. § 0.22
(a)(1) and (2). With respect to the first function, periodic performance
evaluations of U.S. Attorneys’ Offices are conducted by EOUSA’s
Evaluation and Review Staff (EARS). During EARS reviews, a U.S. Attorney’s
Office performance evaluation is conducted over a period of 1 week by a
team of experienced Assistant U.S. Attorneys (AUSAs) and administrative
and financial litigation personnel from other U.S. Attorneys’ Offices.
Each fiscal year, EARS conducts evaluations in approximately one fourth of
the U.S. Attorneys’ Offices. Thus, any given U.S. Attorney’s Office
should be evaluated every 3 to 4 years. 10 EOUSA’s evaluation program
serves various purposes, including providing on-site management assistance
to U.S. Attorneys and assuring compliance with Department policies and
programs. The program also serves as a mechanism by which evaluators can
share ideas and best practices with the U.S. Attorneys’ Offices.
According to the Chief of Staff and Deputy Director of EOUSA, the
evaluation program also provides an opportunity for peers to evaluate
peers in an objective manner. The evaluators, who are neither auditors nor
inspectors, also make recommendations for improving the operation of the
U.S. Attorney’s Office. Following the on-site EARS evaluation of a U.S.
Attorney’s Office, the EARS team leader prepares a document entitled “Draft
Significant Observations” for the Director of EOUSA, who in turn
provides the draft to the Deputy Attorney General but not to the U.S.
Attorney. A “Follow-up Program” includes follow-up visits to the U.S.
Attorney’s Office by evaluators other than those who participated in the
initial evaluation and EOUSA personnel. Followup teams verify corrective
actions and provide needed assistance to the offices. After completion of
the follow-up review, the EARS staff produces a “Final Evaluation
Report,” consisting of a summary of the legal and administrative reports
and the U.S. Attorney’s response to those reports. The Director of EOUSA
provides the Final Evaluation Report to the Deputy Attorney General and
the U.S. Attorney. Allegations of misconduct by U.S. Attorneys are
generally investigated by either the OIG or OPR, depending on the nature
of the alleged misconduct.12 As presidential appointees, U.S. Attorneys
are not subject to discipline or removal by the Department without the
President’s approval. In cases in which the Deputy Attorney General and
the Attorney General conclude that removal is warranted, they normally
request approval from the White House Counsel to ask for the U.S. Attorney’s
resignation. If the U.S. Attorney refuses to submit a resignation, the
President can dismiss the U.S. Attorney. IV. Backgrounds of Department
Officials In this section, we briefly summarize the backgrounds and duties
of those individuals who had a major role in the removal of the U.S.
Attorneys at issue in this review and in the Department’s response to
those removals. 12 OPR has jurisdiction to investigate allegations against
U.S. Attorneys that involve the exercise of their authority “to
investigate, litigate, or provide legal advice.” The OIG has
jurisdiction to investigate all other allegations against U.S. Attorneys.
See 5 U.S.C. App. 3 § 8E. 11 Appendix C identifies the Department’s
senior managers at the time of the events discussed in this report. A.
Alberto Gonzales Alberto Gonzales graduated from Rice University in 1979
and Harvard Law School in 1982. He began his legal career in private
practice in 1982 at the law firm of Vinson and Elkins, where he became a
partner. In 1994, he was appointed General Counsel to Governor Bush. In
1997, Gonzales was appointed Secretary of State for Texas. Gonzales also
served as a Justice of the Supreme Court of Texas from 1999 to until 2001,
when he became White House Counsel to President Bush. Gonzales served as
White House Counsel until February 2005, when he was confirmed as Attorney
General of the United States. Gonzales resigned as the Attorney General on
August 27, 2007. B. Kyle Sampson Kyle Sampson graduated from Brigham Young
University in 1993 and from the University of Chicago Law School in 1996.
After law school, he served as a federal appellate court clerk, and then
worked for 2 years in a private law firm in Salt Lake City. In 1999, he
became a Majority Counsel to the U.S. Senate Committee on the Judiciary,
where, among other things, he worked on the nominations of candidates for
political positions in the Department of Justice. In 2001, Sampson moved
to the White House as Special Assistant to the President and Associate
Director for Presidential Personnel where he handled, among other duties,
presidential appointments at the Department of Justice. Later in 2001 and
continuing until 2003, Sampson served as Associate Counsel to the
President. During that time, Sampson worked on legislative, policy, and
environmental matters. In August 2003, Sampson moved to the Department of
Justice, where he first served as Counselor to Attorney General John
Ashcroft. In February 2005, Sampson became Deputy Chief of Staff to
Attorney General Gonzales, and in September 2005 he became Chief of Staff
to the Attorney General. He remained in that position until his
resignation from the Department in March 2007. C. Monica Goodling Monica
Goodling graduated from Messiah College in 1995 and from Regent University
School of Law in 1999. From 1999 to February 2002, Goodling worked at the
Republican National Committee as a research analyst, senior analyst, and
deputy director for research and strategic planning. In February 2002,
Goodling began work in a political position in the Department’s Office
of Public Affairs. In September 2004, Goodling was detailed for 6 months
as a Special Assistant U.S. Attorney in the U.S. 12 Attorney’s Office in
the Eastern District of Virginia. In March 2005, Goodling was appointed as
the political Deputy Director in EOUSA. According to her résumé, her
responsibilities at EOUSA included oversight of and coordination between
EOUSA and U.S. Attorneys’ Offices across the country. In October 2005,
Goodling was appointed as Counselor to Attorney General Gonzales. In April
2006 she became the Department’s White House Liaison and Senior Counsel
to the Attorney General. Goodling’s major responsibility as White House
Liaison was to interview and process applicants for political positions in
the Department, including U.S. Attorneys. Goodling remained in that
position until she resigned in April 2007. D. Paul McNulty Paul McNulty
graduated from Grove City College in 1980 and from Capital University
School of Law in 1983. He began his legal career as Counsel for the House
of Representatives’ Committee on Standards of Official Conduct, where he
served from 1983 to 1985. From 1985 to 1987, McNulty was Director of
Government Affairs at the Legal Services Corporation. In 1987, he became
Minority Counsel to the House Subcommittee on Crime. McNulty joined the
Department of Justice in 1990 as Deputy Director of the Office of Policy
Development, and in 1991 he became the Director of the Department’s
Office of Policy and Communications. McNulty worked for a private law firm
in Washington from 1993 to 1995. He returned to work for Congress in 1995
as Chief Counsel to the House Subcommittee on Crime. He remained in that
position until 1999 when he became Chief Counsel and Director of
Legislative Operations for the House Majority Leader. After serving on
President Bush’s transition team for the Department of Justice, McNulty
was appointed Principal Associate Deputy Attorney General in January 2001.
In September 2001, he was confirmed to be the U.S. Attorney for the
Eastern District of Virginia. He served as U.S. Attorney until November
2005, when he became the Acting Deputy Attorney General. McNulty was
confirmed as the Deputy Attorney General on March 17, 2006. As Deputy
Attorney General, McNulty was the U.S. Attorneys’ immediate supervisor.
He served as the Deputy Attorney General until his resignation in July
2007. E. Michael Elston Michael Elston graduated from Drake University in
1991 and Duke University School of Law in 1994. Following a 2-year federal
appellate court clerkship, Elston went into private practice until 1999,
when he became an 13 AUSA in the Northern District of Illinois. Elston
subsequently served as an AUSA in the Eastern District of Virginia from
April 2002 until December 2005, when he became Chief of Staff and
Counselor to McNulty. Elston remained McNulty’s Chief of Staff until his
resignation in June 2007. F. David Margolis David Margolis is a career
Associate Deputy Attorney General and the highest-ranking career attorney
in the Department. Margolis graduated from Brown University in 1961 and
Harvard Law School in 1964. He began his career with the Department in
1965 as an AUSA in the District of Connecticut. Beginning in 1969, he held
a series of supervisory positions with the Organized Crime Section of the
Criminal Division. In 1990, he became Acting Deputy Assistant Attorney
General in the Criminal Division. In 1993, he was appointed as an
Associate Deputy Attorney General and has remained in that position since
that time. Margolis’s informal biography describes his duties as an
Associate Deputy Attorney General to include acting as the liaison for the
Deputy Attorney General with the FBI, the Criminal Division, and the U.S.
Attorneys. Margolis is also normally responsible for recommending the
Department’s response in cases where the OIG or OPR make misconduct
findings against high-level Department officials. G. William Mercer
William Mercer graduated from the University of Montana in 1984 and
received a master’s degree in Public Administration from the Kennedy
School of Government at Harvard University in 1988. Mercer then was a
Presidential Management Intern in the Treasury Department’s Office of
Tax Policy from 1988 to 1989. Between 1989 and 1995, Mercer served in the
Department of Justice as Counselor to the Assistant Attorney General and
Senior Policy Analyst in the Office of Policy Development. Mercer received
a law degree from George Mason University School of Law in 1993. From 1994
to 2001, he worked as an AUSA in the District of Montana. He was confirmed
as the U.S. Attorney in Montana in 2001. Between June 2005 and July 2006,
Mercer was the Principal Associate Deputy Attorney General while also
serving as U.S. Attorney for Montana. In September 2006, Mercer was
nominated to be Associate Attorney General. He served as Acting Associate
Attorney General until June 2007, when he withdrew from consideration for
the nomination. Mercer currently serves as the U.S. Attorney in Montana.
14 H. William Moschella William Moschella received an undergraduate degree
from the University of Virginia in 1990 and a law degree from George Mason
University School of Law in 1995. During and after law school, Moschella
served in a variety of congressional staff positions, including Counsel to
the House Committee on Government Reform, General Counsel to the House
Committee on Rules, Chief Investigative Counsel to the House Committee on
the Judiciary, and Chief Legislative Counsel and Parliamentarian to the
House Committee on the Judiciary. In May 2003, Moschella was confirmed as
the Department of Justice’s Assistant Attorney General for the Office of
Legislative Affairs. In October 2006, Moschella was appointed Principal
Associate Deputy Attorney General. He resigned from the Department in
January 2008. 15 CHAPTER THREE FACTUAL OVERVIEW In this chapter, we
provide a detailed chronology leading to the removals of the U.S.
Attorneys, including the genesis of the plan and what we were able to
discover about the White House’s involvement in the plan. We discuss the
selection process, the removal process, the reaction to the removals, and
the Department’s responses. I. Development of U.S. Attorney Removal
Lists As noted in Chapter Two, from January 2001 until October 2003 Kyle
Sampson worked at the White House, first as a Special Assistant to the
President in the Presidential Personnel Office and later as an Associate
Counsel in the White House Counsel’s Office. In his position in the
Presidential Personnel Office, Sampson was responsible for, among other
things, interviewing and recommending candidates for political
appointments to positions in the Department of Justice. Sampson told us
that, in that capacity, he participated in interviewing candidates for
virtually all the U.S. Attorney positions filled during the first 9 months
of the Bush Administration. After moving to the White House Counsel’s
Office in September 2001, Sampson continued to be directly involved in the
selection of U.S. Attorneys. He served on the interviewing panel for U.S.
Attorneys and became the White House representative for U.S. Attorney
appointments.13 As part of his responsibilities, Sampson reviewed the
résumés and questionnaires of all U.S. Attorney applicants and the
background investigation files for these nominees. In October 2003,
Sampson joined the Department as Counselor to Attorney General John
Ashcroft. In February 2005, when Attorney General Gonzales took office,
Sampson became his Deputy Chief of Staff and later his Chief of Staff.
Throughout his tenure in the Department, Sampson remained involved in the
selection and appointment of U.S. Attorneys through his attendance at
weekly judicial selection meetings at the White House during which U.S.
Attorney appointments were decided. 13 Sampson said the interviewing panel
for U.S. Attorneys generally included himself, an Associate White House
Counsel with responsibility for the particular geographic area the
potential candidate was being considered for, a person from the
Presidential Personnel Office, David Margolis, the Director of EOUSA, and
the Department’s White House Liaison. Nov 2004 Dec 2004 Jan 2005 Feb
2005 Mar 2005 Jan 2006 Feb 2006 Mar 2006 Apr 2006 May 2006 Jun 2006 Jul
2006 Aug 2006 Sep 2006 Oct 2006 Nov 2006 Dec 2006 Jan 2007 Feb 2007 Mar
2007 Apr 2007 May 2007 Jun 2007 Jul 2007 Aug 2007 U.S. Attorney Removal
Overview Nov 2004 After the Presidential election, Harriet Miers asks Kyle
Sampson whether the President should seek resignations of all U.S.
Attorneys. Sampson opposes the idea Jan 2005 Sampson sends e-mail to White
House with proposal to replace a subset of “underperforming” U.S.
Attorneys Feb 2005 Gonzales becomes Attorney General and endorses Sampson’s
plan regarding removal of U.S. Attorneys Mar 2, 2005 Sampson sends White
House his first removal list Jan 9, 2006 Sampson sends White House his
second removal list Jan 24, 2006 U.S. Attorney Graves, W.D. Mo., is told
to resign, announces resignation on March 10, leaves office March 24 Apr
14, 2006 Sampson sends White House his third removal list Jun 2006 White
House approves Griffin’s selection to replace Cummins as U.S. Attorney
for the E. D. Ark.; Cummins is told to resign on June 14 Sep 13, 2006
Sampson sends White House his fourth removal list Nov 7, 2006 Sampson
creates his fifth removal list Nov 15, 2006 Sampson sends White House his
sixth removal list Nov 27, 2006 Meeting in Gonzales’s conference room at
which the AG approves the removal list and implementation plan Dec 4, 2006
White House approves plan. Sampson sends seventh and final list to the
White House with Ryan’s name added Dec 7, 2006 Seven U.S. Attorneys (Iglesias,
Bogden, Charlton, McKay, Lam, Chiara, Ryan) are instructed to resign Dec
2006 Cummins leaves office Dec 20 and Griffin is appointed Interim U.S.
Attorney Jan 12, 2007 Sampson briefs Senate Judiciary counsel about
removals and leaves impression that removals were based on EARS
evaluations Jan 18, 2007 Gonzales testifies before Senate Judiciary about
U.S. Attorney removals Feb 6, 2007 McNulty testifies before Senate
Judiciary that U.S. Attorneys were removed for “performance-related”
reasons, with the exception of Cummins Feb 14, 2007 McNulty provides
reasons for removal of each U.S. Attorney in closed Senate Judicary
briefing Mar 6, 2007 Moschella testifies before House Judiciary about
removal of U.S. Attorneys Mar 8, 2007 Sampson retrieves e-mails which show
that White House was involved in U.S. Attorney removals more extensively
and earlier than McNulty and Moschella told Congress Mar 14, 2007 Sampson
leaves the Department Mar 14, 2007 Gonzales holds press conference and
makes statements about his role in removals May 14, 2007 McNulty announces
his resignation effective the end of July May 23, 2007 Goodling testifies
before House Judiciary Aug 27, 2007 Gonzales announces his resignation
effective September 17 16 A. Genesis of Plan to Remove U.S. Attorneys We
determined that the process to remove the U.S. Attorneys originated
shortly after President Bush’s re-election in November 2004. In an
e-mail on November 4, 2004, Susan Richmond, then the Department of Justice’s
White House Liaison, responded to requests from various Presidentially
appointed personnel in the Department about guidance regarding the
transition to the Bush Administration’s second term. In the email, which
was sent to Department Presidentially appointed officials, including U.S.
Attorneys, Richmond wrote that “the President has decided that he will
not ask for letters of resignation.” (Emphasis in original.) Richmond
reminded the recipients of the e-mail, however, that “each of us serves
at the pleasure of the President.” Although Richmond’s November 4
e-mail notified the U.S. Attorneys that wholesale resignations would not
be required, the issue of removal of certain U.S. Attorneys was being
considered by the Administration. According to Sampson, sometime after the
2004 election White House Counsel Harriet Miers asked him whether the
Administration should seek resignations from all 93 U.S. Attorneys as part
of an idea to replace all Administration political appointees for the
President’s second term. Sampson said he told Miers that he thought it
was not a good idea and he told other Department officials he “beat [it]
back.”14 Sampson said he also told Miers he believed that all U.S.
Attorneys had an expectation that they would at least serve their
statutory 4- year term, and the terms did not begin to expire until fall
2005. B. Process to Identify U.S. Attorneys for Removal In an e-mail on
January 6, 2005, Deputy White House Counsel David Leitch forwarded to
Sampson an e-mail from Office of White House Counsel Paralegal Colin
Newman. The e-mail from Newman stated that “Karl Rove stopped by “to
ask [Leitch] . . . ‘how we planned to proceed regarding US Attorneys,
whether we are going to allow all to stay, request resignations from all
and accept only some of them, or selectively replace them, etc.’” In
his forwarding e-mail to Sampson, Leitch proposed that they discuss the
matter. On January 9, 2005, Sampson replied by e-mail to Leitch stating
that Sampson and the “Judge” [Gonzales] had discussed the matter a “couple
of weeks ago.” Sampson then shared with Leitch his “thoughts,” which
consisted of four points on the subject. First, Sampson pointed out that
while U.S. 14 Miers was named by President Bush in November 2004 to
succeed Alberto Gonzales as White House Counsel. Before becoming White
House Counsel, Miers served in the Administration as Assistant to the
President and Staff Secretary (2001-2003) and as Deputy Chief of Staff for
Policy (2003-2004). 17 Attorneys serve at the “pleasure of the
President,” they are appointed to 4-year terms. Sampson stated that none
of the U.S. Attorneys had yet completed their 4-year terms, and it would
be “weird” to ask them to leave before their terms were completed.
Second, Sampson noted the “historical” practice of allowing U.S.
Attorneys to complete their 4-year terms even after a party change in the
Administration, notwithstanding the fact that the first Clinton and Bush
Administrations deviated from that historical practice by removing their
predecessor’s appointees without regard to the completion of their
terms. Third, Sampson stated in the e-mail: as an operational matter, we
would like to replace 15-20 percent of the current U.S. Attorneys - the
underperforming ones. (This is a rough guess; we might want to consider
doing performance evaluations after Judge [Gonzales] comes on board.) The
vast majority of U.S. Attorneys, 80-85 percent, I would guess, are doing a
great job, are loyal Bushies, etc., etc. Due to the history, it would
certainly send ripples through the U.S. Attorney community if we told
folks that they got one term only (as a general matter, the Reagan U.S.
Attorneys appointed in 1981 stayed on through the entire Reagan
Administration; Bush41 even had to establish that Reagan-appointed U.S.
Attorneys would not be permitted to continue on through the Bush41
Administration - indeed, even performance evaluations likely would create
ripples, though this wouldn’t necessarily be a bad thing.15 Fourth,
Sampson predicted that “as a political matter. . . I suspect that when
push comes to shove, home-State Senators likely would resist wholesale (or
even piecemeal) replacement of U.S. Attorneys they recommended. . .if Karl
[Rove] thinks there would be political will to do it, then so do I.”
Sampson’s initial proposal to remove a percentage of U.S. Attorneys was
not acted upon immediately, since both the White House Counsel’s Office
and the Department of Justice were in transition. We did not find any
response from Leitch to Sampson’s January 9 e-mail. Leitch told us he
had no independent recollection of discussing the matter with Sampson,
Rove, or anyone else before leaving the White House Counsel’s Office
around this time. However, Sampson’s proposal gained support in late
February and early March 2005 after Gonzales was confirmed as Attorney
General and Miers was installed as White House Counsel. At that time
Sampson was appointed to be Gonzales’s Deputy Chief of Staff, and
Gonzales authorized Sampson to proceed 15 Sampson described to us his
thinking on this subject as possibly derived from the management
philosophy of Jack Welch, former General Electric CEO, that the bottom 10
percent of any organization should be changed periodically for the good of
the whole. 18 with a review for the purpose of identifying U.S. Attorneys
for potential removal. Gonzales told us that he endorsed the concept of
evaluating the performance of U.S. Attorneys to see “where we could do
better.” According to Gonzales, he told Sampson to consult with the
senior leadership of the Department, obtain a consensus recommendation as
to which U.S. Attorneys should be removed, and coordinate with the White
House on the process. Gonzales told us that he did not discuss with
Sampson how to evaluate U.S. Attorneys or what factors to consider when
discussing with Department leaders which U.S. Attorneys should be removed.
C. The First List - March 2, 2005 According to Sampson, sometime in
February 2005 White House Counsel Miers asked him to provide
recommendations in the event the Administration decided to ask for
resignations from a “subset” of U.S. Attorneys. In response, Sampson
annotated a chart that listed all Presidentially appointed,
Senate-confirmed U.S. Attorneys and the date each assumed their office.16
On March 2, 2005, Sampson attended a regularly scheduled meeting of the
judicial selection committee at the White House and gave Miers the 6- page
typewritten chart, entitled “United States Attorneys - Appointment
Summary (2/24/05).” Many of the names on the chart were either
crossed-through or highlighted in bold. In an e-mail to Miers after the
March 2 meeting, Sampson explained the meaning of the markings on the
chart: bold = Recommend retaining; strong U.S. Attorneys who have
produced, managed well, and exhibited loyalty to the President and
Attorney General. strikeout = Recommend removing; weak U.S. Attorneys who
have been ineffectual managers and prosecutors, chafed against
Administration initiatives, etc. nothing = No recommendation; have not
distinguished themselves either positively or negatively. 16 The chart
also listed several other districts in which U.S. Attorneys were going
through various stages in the nomination process. Mar 2005 Apr 2005 Jan
2006 Feb 2006 Mar 2006 Apr 2006 May 2006 Jun 2006 Jul 2006 Aug 2006 Sep
2006 Oct 2006 Nov 2006 Dec 2006 US Attorney Mar 2, 2005 List #1 York
Cummins Lam Miller Huber Chiara Heffelfinger Greenlee Lampton Wagoner
McKay Warner Biskupic Silsby Jan 9, 2006 List #2 Cummins Lam Ryan Chiara
Heffelfinger Graves O'Meilia Silsby Leone Apr 14, 2006 List #3 Chiara
O'Meilia Cummins Lam Silsby Sep 13, 2006 List #4 Cummins Charlton Lam
Miller Silsby Chiara Bogden Marino McKay Nov 1, 2006 Elston List Christie
Connelly Buchanan Brownlee Wood Nov 7, 2006 List #5 Charlton Lam Miller
Silsby Chiara Bogden Marino McKay Iglesias Nov 15, 2006 List #6 Charlton
Lam Chiara Bogden McKay Iglesias Dec 4, 2006 List #7 Charlton Lam Ryan
Chiara Bogden Iglesias McKay Removal List Timeline Names on lists are in
original order 19 On the chart, as indicated by a strikeout of names,
Sampson recommended removing the following U.S. Attorneys:17 • David
York (S.D. Ala.); • H.E. “Bud” Cummins (E.D. Ark.); • Carol C. Lam
(S.D. Cal.); • Greg Miller (N.D. Fla.); • David Huber (W.D. Ky.); •
Margaret M. Chiara (W.D. Mich.); • Jim Greenlee (N.D. Miss.); • Dunn
O. Lampton (S.D. Miss.); • Anna Mills Wagoner (M.D. N.C.); • John
McKay (W.D. Wash.); • Kasey Warner (S.D. W.Va.); and • Paula Silsby
(D. Me.).18 Later that evening, Sampson e-mailed Miers a revised chart in
which he struck out two additional names: • Thomas B. Heffelfinger (D.
Minn.); • Steven Biskupic (E.D. Wis.).19 17 As noted below, Sampson said
he came up with these 14 names based on his own “quick and dirty”
review of U.S. Attorneys and said he intended that the names would be
subjected to further vetting “down the road.” We did not investigate
the circumstances of each U.S. Attorney who appeared on Sampson’s
initial list, and we believe no conclusions can or should be reached about
the performance of these U.S. Attorneys based on Sampson’s inclusion of
their names on his list. 18 According to Sampson, he did not list Silsby
because he considered her a “weak” U.S. Attorney but because she had
never been nominated by the President and was serving as Interim U.S.
Attorney through a court appointment. Attorney General Ashcroft had
appointed her Interim U.S. Attorney in 2001 for a 120-day term, and she
was appointed Interim U.S. Attorney by the federal district court upon the
expiration of the 120-day appointment by the Attorney General. Silsby had
served as Interim U.S. Attorney since then with the support of Maine’s
two Republican Senators. However, the White House did not recommend her
for the permanent position, and Sampson wanted to replace her with a
Presidentially nominated and confirmed U.S. Attorney. 19 We discuss
Heffelfinger’s resignation below in Section E.1. of this chapter. As to
Biskupic, as part of our investigation we interviewed him to assess
allegations that his prosecution of a local Democratic elected official
played a role in Sampson’s subsequent deletion of his name from the
removal list. Biskupic, who still serves as U.S. Attorney for the Eastern
District of Wisconsin, told us that until the controversy about the
removals of the (Cont’d.) 20 In the e-mail, Sampson also bolded Matt
Orwig, E.D. Texas, (recommending retention of this U.S. Attorney) “based
on some additional information I got tonight.” Sampson told us that he
could not recall who supplied the new information about Orwig or what the
information was. All told, Sampson’s chart placed in the “strikeout”
category 14 U.S. Attorneys, including 4 of the 9 who were ultimately told
to resign in 2006: Bud Cummins, Carol Lam, Margaret Chiara, and John
McKay. On the other hand, the chart placed in the “bold” category as
“recommend retaining” 26 U.S. Attorneys, 2 of whom - David Iglesias
and Kevin Ryan - were also among the 7 who were told to resign on December
7, 2006. The chart placed in the “no recommendation” category 39 U.S.
Attorneys, 3 of whom - Paul Charlton, Todd Graves, and Daniel Bogden -
were told to resign in 2006. According to Sampson, his assessment of U.S.
Attorneys reflected in the chart he e-mailed to Miers on March 2, 2005,
was based both on judgments he formed about these U.S. Attorneys during
his work at the White House and the Department over the previous 4 years
and on input from other officials at the Department. Sampson told
congressional investigators that in early 2005 he had consulted and relied
upon several Department officials, including EOUSA Director Mary Beth
Buchanan, Principal Associate Deputy Attorney General William Mercer,
Deputy Attorney General James Comey, and Associate Deputy Attorney General
David Margolis, for recommendations concerning which U.S. Attorneys to
remove. However, Sampson told us that he could not specifically recall
what these individuals said about particular U.S. Attorneys at the time.
Sampson also said he viewed the initial chart as a “quick and dirty”
response to Miers’s inquiry, and as a “preliminary list” that would
be subject to “further vetting . . . down the road” from Department
leaders. other U.S. Attorneys arose, he had no idea that Sampson had ever
characterized him as a “weak” U.S. Attorney or had recommended that he
be removed. Biskupic told us that he did not believe Sampson included him
on the first list for reasons related to any public corruption cases his
office was prosecuting. Biskupic also said he had no contact with anyone
at the Department about public corruption prosecutions and that his office
did not discuss the cases with anyone at the Department. Sampson told us
he did not know anything about public corruption cases in Biskupic’s
district until after Sampson resigned from the Department. Sampson said he
could not recall why he had included Biskupic on the initial list, but
said he vaguely recalled having a conversation with Deputy Attorney
General McNulty much later in the process in which McNulty noted that
Biskupic should not be recommended for removal because the Department did
not want to arouse the ire of Wisconsin Congressman James Sensenbrenner.
However, as we discuss below, we determined that Biskupic’s name was
removed from the list sometime before January 2006, and McNulty did not
become aware of the proposal to remove U.S. Attorneys until late October
2006. Accordingly, even if Sampson had such a conversation with McNulty,
it could not have formed the basis for Sampson taking Biskupic’s name
off the removal list much earlier in the year. 21 Sampson said he did not
share the March 2 chart with Gonzales or any other Department officials at
the time, but believed he briefed Gonzales about it. Gonzales told us he
did not recall seeing the chart or being briefed about the names on it. 1.
Input from Comey and Margolis We interviewed all the officials with whom
Sampson said he consulted when preparing the March 2 chart. Only Deputy
Attorney General Comey and Associate Deputy Attorney General Margolis said
they recalled discussions with Sampson in early 2005 about this issue.
Comey said he recalled being consulted by Sampson before Sampson sent the
U.S. Attorney chart to Miers in early March 2005. Based on his calendar
entries, Comey said he met with Sampson on February 28, 2005, 4 days
before Sampson e-mailed the chart to Miers. Comey told us that Sampson had
asked for his input on the “weakest” U.S. Attorneys in the event an
opportunity arose to make changes in the U.S. Attorney ranks. Comey said
he was confident he named Kevin Ryan and Dunn Lampton as “weak” U.S.
Attorneys, and he believed he placed Thomas Heffelfinger and David O’Meilia
in that category as well.20 However, Comey said he was not aware at the
time that Sampson’s inquiry was part of a “process” to identify U.S.
Attorneys for removal and was “close to certain” that Sampson did not
attribute any role to the White House in the matter. Comey also stated
that he considered this aspect of his February 28 meeting to be a “casual”
conversation with Sampson that was raised “offhandedly” as a prelude
to a different and more important subject to be discussed at the meeting -
the possible merger of the Attorney General’s and Deputy Attorney
General’s staffs. Margolis told congressional investigators that
sometime in late 2004 or early 2005 Sampson broached with him the subject
of replacing certain U.S. Attorneys, although Margolis said he could not
recall specifically when he and Sampson discussed the matter. According to
Margolis, Sampson told him about Miers’s idea of replacing all U.S.
Attorneys - an idea both he and Sampson considered unwise. Margolis said
that Sampson believed, however, that Miers’s idea could be used as a way
to replace some weak U.S. Attorneys and thereby make the U.S. Attorney
ranks stronger in the second Bush term. Margolis said he strongly endorsed
the idea of replacing weak or mediocre U.S. Attorneys. He said that in the
past U.S. Attorneys were generally removed only for misconduct or gross
incompetence tantamount to misconduct. 20 Comey said he was concerned
about Ryan’s management of his office and had concerns about Lampton’s
judgment and behavior concerning a case Comey oversaw while he was U.S.
Attorney. In addition, Comey expressed concern about O’Meilia’s
judgment regarding certain office expenditures during a time of budget
difficulties. Finally, Comey said he was concerned that Heffelfinger was
overly focused on Indian affairs issues. 22 Margolis said that when he and
Sampson first discussed the issue, Sampson had a list of all current U.S.
Attorneys and asked Margolis for his views on who the Department should
consider removing. Margolis told us he was firm that two U.S. Attorneys
should be removed on performance grounds - Ryan and Lampton. Margolis told
us that he also suggested then (and more strongly later) that Chiara
should be considered for removal. Margolis said he was aware of management
concerns about Ryan and Chiara, and he said he had serious concerns about
Lampton. Margolis also stated that there were roughly eight additional
U.S. Attorneys who warranted a closer look, either because of general
performance, specific conduct, or both.21 2. Reaction to the List from the
Office of the White House Counsel Sampson said he received no immediate
reaction from Miers to the names he had marked for possible removal on the
March 2 chart, and said he did not discuss the basis for his individual
recommendations with Miers. He said the only comment he recalled Miers
making about the chart was that she was “pleased” to see that Sampson
had placed Matt Orwig’s name in bold, indicating he should be kept.
According to Sampson, Miers knew Orwig from Texas and thought highly of
him. In approximately February or March of 2005, the White House Office of
Political Affairs was notified about the initiative to remove certain U.S.
Attorneys. White House Political Affairs Director Sara Taylor told us that
shortly after she began as Director of Political Affairs in February 2005,
she became aware that the White House was considering replacing U.S.
Attorneys. Taylor said that Miers and others in both the White House
Counsel’s Office and the Department of Justice had discussed the idea
that the advent of the President’s second term provided an opportunity
to replace some of the U.S. Attorneys. On March 23, 2005, Associate White
House Counsel Dabney Friedrich, acting at Miers’s request, sent Sampson
an e-mail asking him to confirm Miers’s understanding that the “plan”
for replacing U.S. Attorneys was “to wait until each has served a
four-year term.” Sampson replied that Gonzales, Miers, Friedrich, and he
should discuss the issue, but it was his advice to replace certain U.S.
Attorneys “selectively” (based on the March 2 chart) after the
expiration of their 4-year terms. Sampson expressed concerns that to do
otherwise might create turmoil with home state politicians and within the
Department. Sampson also stressed that these were his views and “should
not 21 Although some of the approximately eight additional names mentioned
by Margolis appeared on subsequent lists prepared by Sampson, none of them
were among the final group of nine U.S. Attorneys who were asked to resign
in 2006. 23 be attributed to Judge [Gonzales].” Friedrich replied that
she agreed “completely” with Sampson’s recommendation and would be
surprised to hear differently from either Miers or Gonzales. After this
e-mail exchange between Sampson and Friedrich in late March 2005, it
appears that the U.S. Attorney removal process remained dormant for
several months. Sampson told us that Gonzales agreed with him that nothing
should be done until the U.S. Attorneys had served out their 4-year terms.
Sampson also told us he believed that Miers had adopted his advice to wait
until the U.S. Attorneys had completed their 4-year terms before taking
any action. Because the earliest term-expiration date of any U.S. Attorney
on his chart did not come until November 2005, Sampson said he saw no
urgency to the matter and put the issue on the back burner. 3. Fall 2005 -
Further Consultations about the Removal of U.S. Attorneys a. Battle In
October 2005, Monica Goodling moved from EOUSA to become Senior Counsel in
the Attorney General’s Office. Around this time, Goodling told Michael
Battle, who had succeeded Mary Beth Buchanan as EOUSA Director in June
2005, that changes could be forthcoming in the U.S. Attorney ranks.
According to Battle, Goodling told him the Administration wanted to give
others an opportunity to serve and asked him if he had concerns about any
particular U.S. Attorneys or “problematic” districts. According to
Battle, after meeting with Goodling he reviewed a list of U.S. Attorneys
for possible removal. He said no names “jumped out” at him and he put
the matter aside, expecting a follow-up call from Goodling that never
came. Battle said neither Goodling nor Sampson thereafter sought his
opinion on which U.S. Attorneys should be replaced. Battle said he did not
hear from either of them on the subject until late January 2006, when
Goodling called him with specific instructions to ask for the first U.S.
Attorney resignation: Todd Graves. b. Mercer According to Mercer, sometime
shortly after the 2004 election Sampson told him that Miers had proposed
replacing all of the U.S. Attorneys, but Sampson had dissuaded her. Mercer
said that sometime during the fall of 2005, Sampson asked for Mercer’s
views on the performance of a number of U.S. Attorneys. Mercer said he did
not recall Sampson stating that certain U.S. Attorneys would be asked to
resign, but it was clear to Mercer that that was Sampson’s purpose in
asking for his views. 24 Mercer said they did not have a formal meeting
about the issue, but in the course of the conversation Sampson indicated
that changes might be made in certain districts with productivity problems
or policy compliance issues. Mercer said he recalled discussing with
Sampson concerns about Lam’s immigration record, and Mercer believed
they also discussed concerns about Ryan’s management. Mercer said he
could not recall which other U.S. Attorneys he and Sampson discussed.
Mercer said he had the sense that Sampson was also consulting with others,
but he did not know who. According to Mercer, he had no further
conversations with Sampson about the removal of U.S. Attorneys until
December 2006 when the removal plan took effect. c. Comey In addition to
the February 2005 discussion between Sampson and Comey discussed above, we
found e-mail records indicating that Sampson broached the subject of
removing certain U.S. Attorneys with Comey in August 2005, shortly before
Comey’s resignation.22 On August 11, 2005, Sampson sent Comey an e-mail
requesting a brief meeting to “get your assessment of our current crop
of USAs.” In the e-mail, Sampson pointed out that U.S. Attorneys’
4-year terms would begin to expire in September, and expressed the view
that “there will be some sentiment to identify the 5-10 weak sisters,
thank them for their four years of service, and give someone else the
opportunity to serve.” According to an e-mail from Comey to two other
Department officials the next day, Sampson asked him about Chiara,
Wagoner, McKay, Sheldon Sperling, and James Vines. Comey’s e-mail
indicated that he agreed with Sampson that Vines was weak but had no
strong views on the others, except McKay who, Comey told Sampson, had been
“great on my information sharing project.” d. Buchanan Buchanan, who
served as Director of EOUSA from May 2004 to June 2005, told us that
Sampson informed her sometime after the 2004 election that he was
undertaking a review of U.S. Attorneys, that some might be asked to leave,
and that he might ask for her input. Buchanan said that Sampson was “very
interested in management” issues and would occasionally ask her opinion
on the 10 “best” and “worst” U.S. Attorneys, although she said she
never directly answered his question. She told us, however, that she was
familiar with the problems Ryan and Lam were having in their districts and
discussed both of them with Sampson. We showed Buchanan Sampson’s March
2005 chart to determine whether she could recall discussions with Sampson
about any of the U.S. Attorneys on the list whom Sampson had categorized
as “weak.” Buchanan 22 Comey left the Department in mid-August 2005.
25 said that of all the names on the list, Lam’s name stood out because
by then Department officials were concerned about her performance in
immigration and Project Safe Neighborhoods matters.23 Buchanan also stated
that sometime in the spring of 2005, she and Margolis discussed sending a
Special EARS team to investigate complaints about Ryan’s management of
the San Francisco U.S. Attorney’s Office. Buchanan said she also
discussed with Sampson concerns about Heffelfinger’s focus on Native
American issues, but she said she did not recall expressing any negative
views about any other U.S. Attorney’s performance. Buchanan said that
before she left EOUSA in June 2005 she probably discussed with Sampson her
concerns about Graves, who first appeared on Sampson’s January 2006
list. In the spring of 2005, Buchanan said, she talked to Graves about a
Missouri newspaper article reporting that Graves’s wife was awarded a
lucrative non-competitive contract by Missouri Governor Matt Blunt to
manage a local motor vehicle fee office for the state. According to
Buchanan, she “probably would have” discussed that matter with
Sampson, as well as her observation that Graves was not an active member
of the Attorney General’s Advisory Committee (AGAC) during his 2-year
stint heading the AGAC’s Child Exploitation and Obscenity Committee.
Other than Comey, Margolis, Mercer, Buchanan, and probably Goodling, we
identified no other Department officials who discussed the performance of
U.S. Attorneys with Sampson before January 2006. D. The Second List -
January 2006 1. Sampson’s January 1, 2006, Draft List Sampson drafted a
memorandum dated January 1, 2006, to Miers stating that he was responding
to her inquiry concerning “whether President Bush should remove and
replace U.S. Attorneys whose 4-year terms have expired.” Sampson said he
could not remember specifically what prompted him to send the e-mail in
January, and he speculated that it might have been just because it was the
new year. Sampson recommended in the memorandum that the Department and
the White House Counsel’s Office “work together to seek the
replacement of a limited number of U.S. Attorneys.” Similar to his
e-mail of January 9, 2005, to Deputy White House Counsel Leitch, Sampson’s
3-page draft memorandum to Miers in January 2006 cited the statutory
authority for U.S. Attorneys’ appointments, term of office, and removal.
Sampson’s memorandum also 23 Project Safe Neighborhoods is a Department
initiative that involves collaborative efforts by federal, state, and
local law enforcement agencies, prosecutors, and communities to prevent
and deter gun violence. 26 pointed out “practical obstacles” to
removing and replacing U.S. Attorneys, such as the significant disruption
a “wholesale removal” would cause to the Department’s work, Senator’s
opposition to the removal of U.S. Attorneys in their home districts, and
the time-consuming process of finding suitable replacements who would have
to undergo the background investigation process. Sampson’s memorandum
proposed that “a limited number of U.S. Attorneys could be targeted for
removal and replacement, mitigating the shock to the system that would
result from an across-the-board firing.” Under his proposal, EOUSA “could
work quietly” with the designated U.S. Attorneys to “encourage them to
leave government service voluntarily,” thereby giving them time to find
work in the private sector and allowing them to “save face.” Sampson
proposed that after the targeted U.S. Attorneys announced their
resignations, the White House Counsel’s Office could work with the
political leadership of the affected states to obtain recommendations for
permanent replacements. Sampson also proposed that the eventual nominee
for each vacated office could be appointed as an Interim U.S. Attorney by
the Attorney General, pending Senate confirmation. In the January 1, 2006,
memorandum to Miers, Sampson identified nine U.S. Attorneys with expiring
terms who should be considered for removal: • H.E. “Bud” Cummins (E.D.
Ark.); • Kevin V. Ryan (N.D. Cal.); • Carol C. Lam (S.D. Cal.); •
Margaret M. Chiara (W.D. Mich.); • Thomas B. Heffelfinger (D. Minn.);
• Dunn O. Lampton (S.D. Miss.); • Todd P. Graves (W.D. Mo.); • Anna
Mills S. Wagoner (M.D. N.C.)24; and • David O’Meilia (N.D. Okla.)
Sampson also recommended the removal and replacement of two U.S. Attorneys
who were serving in an “acting” capacity: Paula Silsby (D. Me.) and
William Leone (D. Colo.).25 24 We were unable to determine why Sampson
listed Wagoner other than that he believed she was a weak U.S. Attorney.
27 For the first nine named U.S. Attorneys, Sampson noted the term
expiration date and the names of the home-state Senators. For six of the
nine, Sampson also suggested replacement candidates, including Tim Griffin
for the Eastern District of Arkansas, who we discuss in Chapter Five.26
Sampson shared his draft memorandum with Goodling, who suggested some
changes. She disagreed with two of Sampson’s recommendations, Wagoner
and Lampton. Goodling wrote on the draft that she “would keep” Lampton
based on his performance in the aftermath of Hurricane Katrina. As to
Wagoner, Goodling noted that she “would not put her on this list”
based on Wagoner’s performance in Project Safe Neighborhood (PSN) and
her cooperation on “Patriot [Act matters] + AG visits, etc.” Goodling
also noted two other categories: (1) “other problem districts,” under
which she named Paul Charlton (D. Ariz.); and (2) “Quiet/not sure about,”
under which she named Daniel Bogden (D. Nev.) and Tom Marino (M.D. Pa.),
all of whom appeared on subsequent lists. Shortly thereafter, Sampson also
created a draft of a 3-tier list containing 14 names, including Charlton
(Tier 1), Bogden (Tier 2), and Marino (Tier 3). We found no one else who
said they saw the January 1, 2006, draft before it was revised and sent by
e-mail to Miers. Attorney General Gonzales told us he did not see it at
the time and did not recall discussing it with Sampson or Goodling. 2. The
January 9, 2006, Memorandum from Sampson to the White House On January 9,
2006, Sampson sent Miers an e-mail which essentially incorporated his
draft memorandum with Goodling’s suggested modifications. Based on
Goodling’s recommendations, Sampson removed Wagoner’s and Lampton’s
names from the list, thereby reducing to nine, including Silsby and Leone,
the number of U.S. Attorneys recommended for removal. The nine U.S.
Attorneys on the January 9 list were: • H.E. “Bud” Cummins (E.D.
Ark.); 25 Leone became the First Assistant U.S. Attorney in Colorado in
2001 and was appointed Interim U.S. Attorney in December 2004. He served
as Interim U.S. Attorney until the confirmation of Troy Eid in August
2006. We found no evidence that Leone’s replacement by a Presidentially
appointed U.S. Attorney was unusual or improper. 26 Most of the
replacement candidates for the other five districts were current or former
political appointees in the Department. Other than Griffin, only one
suggested replacement on this list, John Wood, currently the U.S. Attorney
for the Western District of Missouri, was ultimately nominated and
confirmed. 28 • Carol C. Lam (S.D. Cal.); • Kevin V. Ryan (N.D. Cal.);
• Margaret M. Chiara (W.D. Mich.); • Thomas B. Heffelfinger (D.
Minn.); • Todd P. Graves (W.D. Mo.); • David O’Meilia (N.D. Okla.);
• Paula Silsby (D. Me.); and • William Leone (D. Colo.). In his e-mail
to Miers, Sampson proposed a 2-step removal process. He wrote that first,
there needed to be agreement on the “target list” of U.S. Attorneys,
and second, EOUSA needed to explore with the designated U.S. Attorneys
their “intentions” and to indicate to them that they “might want to
consider looking for other employment.” After naming the nine U.S.
Attorneys recommended for removal, Sampson described the basis on which he
arrived at his recommendations: “I list these folks based on my review
of the evaluations of their offices conducted by EOUSA and my interviews
with officials in the Office of the Attorney General, Office of the Deputy
Attorney General, and the Criminal Division.” Sampson’s mention of “evaluations
conducted by EOUSA” referred to EARS evaluations, the periodic
evaluations of U.S. Attorneys’ Offices conducted by EOUSA. These
reviews, which are typically conducted by a team of supervisory AUSAs
selected from other districts, are described in more detail in Chapter Two
of this report. Notwithstanding Sampson’s representation in his e-mail
to Miers, his recommendations were not based on his review of the
pertinent EARS evaluations. Sampson admitted to us that he did not
personally review EARS evaluations. Instead, Sampson told us that he had
talked to Margolis “generally” about how various U.S. Attorneys were
doing, and he “understood” that Margolis had reviewed EARS
evaluations. Margolis confirmed that he reviews all EARS reports, but told
us that the vast majority are favorable. According to Margolis, EARS
evaluations are designed to help a U.S. Attorney manage his or her office,
not to “help me decide who to fire.” Margolis said that he would only
give serious weight and consideration to an EARS evaluation in the rare
instance it was negative. In such an instance, Margolis told us, he would
deliver a copy of the EARS report to the Principal Associate Deputy
Attorney General or the Deputy Attorney General’s Chief of Staff (not
the 29 Attorney General’s Chief of Staff) with a note that there was a
serious problem in the district. With one exception, Margolis told us that
he recalled no such problem in any of the districts where Sampson
recommended a change in leadership. The lone exception was the Northern
District of California, where Kevin Ryan was the U.S. Attorney.27
Moreover, as discussed in the chapters describing the reasons proffered
for removal of the individual U.S. Attorneys, we found that EARS
evaluations did not support most of the recommendations that Sampson made.
Sampson acknowledged to us that the representation in his e-mail to Miers
that his recommendations were premised on his review of EARS evaluations
was not accurate. Sampson said that it would have been better if he had
said that it was based on his understanding of somebody else’s
understanding of the reviews of the offices. With respect to his reference
to “interviews” of Department officials, Sampson testified to Congress
that he had spoken with Goodling (from the Attorney General’s Office),
and Margolis (from the Deputy Attorney General’s Office). However,
contrary to the statement in his January 9 e-mail, he testified that he
did not believe he had spoken to anyone in the Criminal Division except
“in the most general terms.” In addition, Sampson testified that he
spoke with Buchanan and Comey. Sampson acknowledged that he did not
conduct formal interviews with anyone, but rather said he “was
aggregating views from different people” and did so by sounding people
out in an informal setting in order to get their “frank assessments”
of U.S. Attorneys. Sampson said he may have been clearer with some than
with others as to the purpose for which he was gathering their views. 3.
The First Removal: Todd Graves After sending his January 9, 2006, e-mail
to Miers, Sampson did not receive an immediate response to his proposal,
and no action was taken on his overall proposal for several months.
Nevertheless, shortly after Sampson’s January 9 proposal, action was
taken to seek the resignation of Todd Graves, the U.S. Attorney for the
Western District of Missouri. On January 19, 2006, Sampson sent an e-mail
to EOUSA Director Battle asking him to call when he had a few minutes to
discuss Graves. Several days later (apparently before Battle spoke to
Sampson), Goodling called Battle and 27 A Special EARS evaluation was
commissioned by EOUSA in the fall of 2006 (at Margolis’s urging) based
on the results of the regular EARS evaluation in March 2006 and on
numerous complaints made about Ryan’s performance as U.S. Attorney. The
special evaluation was intended to be an evaluation not only of the USAO
but also of Ryan. 30 told him to call Graves to request his resignation.
Goodling instructed Battle to tell Graves only that the Administration had
decided to make a change, that his service was appreciated, and that the
request was not based on any misconduct by Graves but simply to give
someone else a chance to serve. Shortly thereafter, on January 24, 2006,
Battle called Graves and communicated the message as instructed by
Goodling. Graves said he was “stunned” and “shocked” by the call,
and said Battle would not explain why his resignation was sought. Graves
subsequently complied with the instruction and on March 10, 2006,
announced his resignation, effective March 24. Although Graves was not
originally identified in the 2007 congressional hearings as one of the
U.S. Attorneys who was asked to resign in 2006 as a result of the “process”
initiated by Sampson, we considered him part of that group. He was
targeted for removal on Sampson’s January 9, 2006, list, and the script
Battle followed in seeking Graves’s resignation was identical to the one
he followed in conversations with the other eight U.S. Attorneys who were
later told to resign. However, as we discuss in greater detail in Chapter
Four of this report, no Department employee involved in the process could
explain why Graves was told to resign. Battle, who placed the call at
Goodling’s direction, said he was not given the reasons. Goodling, who
directed Battle to call Graves, stated in her congressional testimony that
she would have done so only on instruction from Sampson. Sampson told
congressional investigators that he had no recollection of the matter,
believed that Goodling had handled it, and assumed that it was based on a
finding of misconduct by Margolis. Margolis told us that there was no
misconduct finding against Graves and expressly denied playing any role in
Graves’s removal. Gonzales told us that he had no recollection about
being consulted about Graves’s removal. We also found no documentation
within the Department describing the reasons that Graves was told to
resign. However, we found that the White House Counsel’s Office played a
role in his resignation. Although Sampson told congressional investigators
that he had no recollection as to why he placed Graves’s name on the
January 9 removal list and disclaimed any involvement in the January 24
resignation request to Graves, Sampson acknowledged to us that he
discussed with the White House Counsel’s Office that the staff of
Missouri’s Republican Senator Christopher Bond was urging the White
House Counsel’s Office to remove Graves. We describe this issue, and the
White House’s role in the removal of Graves, in more detail in Chapter
Four. E. The Third List - April 14, 2006 The proposal advanced by Sampson
in his January 9 e-mail to Miers was not implemented at that time. As
Sampson described it, the process was in a 31 “long thinking phase that
bumped along and really didn’t have any traction to it” until the fall
of 2006. According to Sampson, either Miers or Deputy White House Counsel
William Kelley raised the issue from time to time, prompting Sampson to
prepare another list, but then nothing happened, causing Sampson to
question whether the removal proposal would ever be implemented. We found
that on April 14, 2006, 4 months after his January 9 e-mail, Sampson sent
an e-mail to Associate White House Counsel Dabney Friedrich revising the
list he had proposed in his January e-mail to Miers. Sampson recommended
in the e-mail that the “White House consider removing and replacing the
following U.S. Attorneys upon the expiration of their 4-year terms”: •
Margaret M. Chiara (W.D. Mich.); • David O’Meilia (N.D. Okla.); •
H.E. “Bud” Cummins (E.D. Ark.); and • Carol C. Lam (S.D. Cal.).
Sampson also proposed the removal and replacement of Paula Silsby, the
Interim U.S. Attorney for Maine, and suggested that he could add another
three to five names “[i]f you pushed me.” Three names that were on
Sampson’s January 9 list were omitted from this updated list: Graves,
Heffelfinger, and Ryan. 1. Heffelfinger In an e-mail to Friedrich
immediately after he sent her the new list on April 14, 2006, Sampson
pointed out that Graves and Heffelfinger, two of the names on his January
9 list, “already have left office.” As discussed above, Graves had
been told in late January to resign and he left office on March 24, 2006.
Heffelfinger had also resigned from the Department, effective March 1,
2006. Unlike Graves, Heffelfinger told us he resigned without prompting
from anyone at the Department. Heffelfinger said that he began thinking
about leaving in the fall of 2005, and made the final decision on January
20, 2006, after learning he was eligible for early retirement.
Heffelfinger said that he met with Deputy Attorney General McNulty on that
day to inform him of his intentions, and Heffelfinger announced his
resignation during the week of 32 February 13. His resignation took effect
on March 1, 2006. Heffelfinger said at that time he had no idea that
Sampson had ever proposed his removal.28 2. Ryan Of the nine names
recommended for removal on Sampson’s January 9 list, only one still
serving U.S. Attorney, Kevin Ryan, was omitted from the April 14 e-mail to
Friedrich. At this time Ryan’s performance as U.S. Attorney for the
Northern District of California had been subjected to sharp criticism from
former prosecutors in the office, and in March 2006 an AUSA then serving
in the office wrote a letter to the Department blaming Ryan for a mass
exodus of experienced AUSAs during his tenure. That letter became the
subject of a San Francisco newspaper article in early March recounting
considerable discord within the USAO. As discussed in footnote 27, an EARS
evaluation of Ryan’s office took place during the week of March 27,
2006. After the EARS evaluation, the team leader prepared a “Draft
Significant Observations” memorandum for the Director of EOUSA
highlighting his observations concerning high turnover and low morale,
which line AUSAs attributed to Ryan’s poor management style and
practices. A draft report was completed in late May 2006 and provided to
Ryan for review and comment. In July 2006, Ryan wrote a lengthy response
taking exception to the draft report’s conclusions concerning his
management of the office. According to Margolis, based on the results of
the March evaluation, a special EARS team was commissioned to conduct a
follow-up evaluation of the office. That evaluation occurred in late
October 2006. A draft report was delivered to Margolis and Battle on
November 22, 2006. Like the first one, this special evaluation concluded
that the U.S. Attorney’s Office suffered from serious morale problems
attributable in large part to Ryan’s management style. Sampson told us
he deleted Ryan’s name from the April 14 list because he was aware of
the negative EARS evaluation and felt that it would be “unfair and
inappropriate” to remove Ryan in the midst of an ongoing evaluation.
Sampson also expressed the view that while a U.S. Attorney can be removed
“for any reason or no reason” once the evaluation process has been
initiated, 28 Before leaving office, Heffelfinger prepared a management
plan that called for elevating an experienced AUSA within the office to
the position of Acting U.S. Attorney. His plan was rejected in favor of
appointing Rachel Paulose, a former Minnesota AUSA and then Counsel to the
Deputy Attorney General, to be Interim U.S. Attorney. Paulose was later
nominated as U.S. Attorney and confirmed by the Senate on December 9,
2006. After significant controversy arose regarding her management of the
office, she was transferred back to a position at Main Justice in November
2007. 33 “as a matter of policy” the U.S. Attorney should be given the
benefit of the full evaluation before being removed.29 3. The Plan to
Replace Cummins with Griffin On May 11, 2006, in response to an inquiry
from Deputy White House Counsel William Kelley after a meeting the
previous day at the White House, Sampson forwarded to Kelley his April 14
e-mail to Friedrich. In the e-mail, Sampson asked Kelley to call him to
discuss having Rachel Brand (then head of the Department’s Office of
Legal Policy) replace Chiara as the U.S. Attorney in the Western District
of Michigan and Tim Griffin replace Bud Cummins in the Eastern District of
Arkansas. Sampson also stated in the e-mail to Kelley that he wanted to
discuss the “real problem we have right now with Carol Lam that leads me
to conclude that we should have someone ready to be nominated on 11/18,
the day her 4-year term expires.” As discussed below, in response to
this e-mail to Kelley no decision was made on Sampson’s overall proposal
to remove the U.S. Attorneys. However, a decision was made to remove Bud
Cummins and replace him with Tim Griffin.30 a. Miers’s Request Regarding
Griffin Sampson told Congressional investigators that Miers asked him in
the spring of 2006 whether a place could be found for Griffin in the U.S.
Attorney ranks.31 Sampson said he examined his list and determined that
since Cummins was already identified on the January 9 list as one of the
prospective U.S. Attorneys to be removed, he felt he could accommodate
Miers’s request.32 29 As we discuss later in this report, Ryan was the
only U.S. Attorney of the nine to be evaluated by a Special EARS team. No
other U.S. Attorney removed as a result of the process initiated by
Sampson was accorded such treatment before being recommended for removal.
30 Brand told us that she and Sampson did not seriously discuss whether
Brand wanted to become U.S. Attorney until sometime in the fall of 2006.
Brand said that she is from Michigan, but she was not interested in moving
at the time, and she was not lobbying to become U.S. Attorney. According
to Sampson, he and Deputy White House Counsel Kelley discussed Brand’s
appointment in May 2006, but Brand did not show much interest at the time,
and by the time the removal plan was underway Brand indicated she was not
interested in becoming U.S. Attorney in Michigan for personal reasons. 31
As more fully described in Chapter Five of this report, Griffin had worked
for the Republican National Committee through the 2004 election, and then
became Deputy Director of the Office of Political Affairs in the White
House. In 2004, he was one of the candidates considered for the U.S.
Attorney position in the Western District of Arkansas for which Robert
Balfe was ultimately chosen. 32 We also found evidence that the White
House asked about replacing Debra Yang, the U.S. Attorney in the Middle
District of California. According to Sampson, Miers had asked him whether
Yang should be replaced because she had rejected an overture to serve on
the Ninth (Cont’d.) 34 Sampson said that after consulting with a “few’’
people at the Department, he informed Miers that he thought it could be
done. Sampson said that other than Goodling and the Attorney General, he
could not recall whom he consulted about the Griffin matter. Gonzales told
us he did not recall having any discussions with Sampson about Cummins or
Griffin at the time. According to e-mail records, in early June the White
House formally approved Griffin’s selection for the U.S. Attorney
position. On June 13, Goodling informed Sampson that the pre-nomination
paperwork on Griffin had been completed. She also told Sampson that she
would talk to EOUSA Director Battle the next morning, June 14, and also
inform the Office of the Deputy Attorney General that “we are now
executing this plan.” b. Battle Tells Cummins to Resign On June 14,
2006, Battle, acting on instructions from Goodling, called Cummins to ask
for his resignation. In delivering the message, Battle followed the same
talking points he had received from Goodling for the call to Graves in
January. Battle thanked Cummins for his service, stated that the
Administration wanted to give someone else the opportunity to serve as
U.S. Attorney, and asked how much time Cummins needed to make arrangements
to leave office. Battle told us that he considered Cummins to be a good
U.S. Attorney. Battle also said he was not told why Cummins was asked to
resign or who would replace him. He said Cummins told him that he
suspected the change was being made so Griffin could become U.S.
Attorney.33 4. Sampson Suggests that Patrick Fitzgerald Be Removed During
the summer of 2006, no further action was taken on the plan to remove
additional U.S. Attorneys. However, during this time, Sampson met at least
once with Miers and Deputy White House Counsel Kelley to discuss the
proposal. According to Sampson, sometime during the summer he met
informally with Miers and Kelley after a judicial selection meeting at the
White House. At this meeting they discussed the plan to remove U.S.
Attorneys, and Sampson broached the subject of including Patrick
Fitzgerald, the U.S. Attorney for the Northern District of Illinois, on
the removal list. Circuit. Sampson testified that he had informed Miers
that Yang was a “strong” U.S. Attorney who should remain in place.
Sampson said that Miers accepted his explanation and did not raise the
subject again. Yang resigned of her own volition in 2006 to take a job
with a private law firm. 33 On December 15, 2006, Cummins announced his
resignation and left office on December 20, 2006. 35 Sampson testified to
Congress that although Fitzgerald was widely viewed as a strong U.S.
Attorney, Sampson had placed Fitzgerald in the “undistinguished”
category on the initial list he sent to the White House in March 2005
because he knew that Fitzgerald was handling a very sensitive case and
Sampson did not want to rate Fitzgerald one way or the other. At that
time, Fitzgerald was serving as the Special Counsel investigating the leak
of information relating to Central Intelligence Agency employee Valerie
Plame, which ultimately resulted in the conviction of the Vice President’s
Chief of Staff, I. Lewis “Scooter” Libby, for perjury and making false
statements. Sampson testified that when he brought up Fitzgerald’s name
as a U.S. Attorney who could be added to the removal list, Miers and
Kelley “said nothing - they just looked at me.” Sampson testified that
as soon as he said it, he knew it was the wrong thing to do. He said he
was not sure why he said it but thought that maybe he was “trying to get
a reaction from [Miers and Kelley].” He said he “immediately regretted
it” and retracted the suggestion. Sampson later told congressional
investigators that it was “immature and flippant” of him to have even
raised such a sensitive issue. Sampson also testified that he never
seriously considered putting Fitzgerald on the list, and we found no
evidence that Sampson ever discussed removing Fitzgerald with anyone at
the Department. F. The Fourth List - September 13, 2006 On September 13,
2006, Miers sent an e-mail to Sampson asking for his “current thinking
on holdover U.S. Attorneys.” In a reply e-mail later that day, Sampson
conveyed to Miers his current breakdown of “the U.S. Attorney ranks.”
After noting current and anticipated vacancies for U.S. Attorney
positions, Sampson listed the following U.S. Attorneys under the heading
“USAs We Now Should Consider Pushing Out:”34 • Paul Charlton (D.
Ariz.); • Carol C. Lam (S.D. Cal.); • Greg Miller (N.D. Fla.); •
Paula Silsby (D. Me.); • Margaret M. Chiara (W.D. Mich); 34 Sampson
addressed Cummins’s situation in a separate section of his e-mail under
the heading “USAs in the Process of Being Pushed Out.” 36 • Daniel
Bogden (D. Nev.); • Thomas Marino (M.D. Pa.); and • John McKay (W.D.
Wash.). In a summary section of the e-mail, Sampson emphasized that he was
“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.” In
his e-mail, Sampson also “strongly” recommended that the
Administration “utilize the new statutory provisions that authorize the
AG to make USA appointments.” As described in Chapter Two, before March
2006 the Attorney General could only appoint an Interim U.S. Attorney for
a 120-day term, and upon expiration of the appointment the federal
district court could make an indefinite appointment until the vacancy was
filled by a confirmed presidential appointee. At the request of the
Department, however, a provision had been included in amendments to the
Patriot Act in March 2006 giving the Attorney General the authority to
appoint an Interim U.S. Attorney until the vacancy was filled by a
confirmed presidential appointee.35 In his e-mail, Sampson explained his
recommendation to use the new interim appointment power as follows: We can
continue to do selection in JSC [White House Judicial Selection
Committee], but then should have DOJ take over entirely the vet and
appointment. By not going the PAS route, 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 cost to the
White House. Before sending this e-mail to Miers, Sampson had sent a draft
of the email to Goodling and asked her for any “corrections.” He did
not send the draft to anyone else in the Department. The draft he sent
Goodling was identical to the final e-mail he sent Miers with one
exception: Anna Mills Wagoner of the Middle District of North Carolina was
among the U.S. Attorneys listed in Sampson’s draft to be “pushed out,”
but was not included in the final e-mail he 35 As also noted in Chapter
Two, in June 2007 in the wake of the controversy surrounding the U.S.
Attorney removals and allegations that the Attorney General’s Interim
appointment power was being used to circumvent the Senate confirmation
process, legislation was enacted repealing the March 2006 amendment and
restoring the previous provision granting the local federal district court
authority over Interim U.S. Attorney appointments upon the expiration of
the 120-day appointment by the Attorney General. 37 sent to Miers. We
determined that about 20 minutes after receiving Sampson’s draft e-mail,
Goodling replied that Wagoner’s name should be removed because “there
are plenty of others there to start with and I don’t think she merits
being included in that group at this time.”36 Sampson then removed
Wagoner from the list before sending the e-mail to Miers. 1. Sampson’s
“Consensus” Process in Compiling the List The list of U.S. Attorneys
for removal that Sampson e-mailed to Miers on September 13 differed
substantially from his April 14 list. One name, O’Meilia, came off the
list while five others were added: McKay, Charlton, Bogden, Marino, and
Miller. Sampson told us that he placed McKay, Charlton, Bogden, Marino,
and Miller’s names on the September 13 list based on information he had
learned about them from a variety of sources.37 He acknowledged, however,
that these sources were not necessarily aware of Sampson’s intended use
of the information. Sampson also said he could not recall who specifically
provided the information that resulted in each name being added to the
list. In his congressional testimony, Sampson repeatedly described the
process by which names were placed on the U.S. Attorney removal list as
one of “consensus” among Department leaders. For example, in his
Senate Judiciary Committee testimony on March 29, 2007, and his subsequent
interviews by joint House and Senate Judiciary Committee staff, Sampson
described himself as the “aggregator” of names and as the manager of
the “process.” He testified before the Senate Judiciary Committee that
“[i]t wasn’t that I wanted names on the list” and that, while he had
his own views, there was no one specific U.S. Attorney that he “personally”
thought should be on the list. Sampson also testified at his Senate
Judiciary Committee appearance that he had “done no independent research”
before removing any U.S. Attorney and had relied on Margolis, McNulty, and
Mercer to make recommendations. He said he had “consulted with the
Deputy Attorney General and others who would have reason to make an
informed judgment about the U.S. Attorneys.” However, we found that
contrary to his testimony, Sampson did not add McKay, Charlton, Bogden,
Marino, and Miller to the September 13 removal list as a result of
discussions with Department leaders geared toward arriving at a consensus
list of U.S. Attorneys to be recommended for removal. Aside from 36 As
noted above, Goodling had previously recommended to Sampson in January
2006 that Wagoner’s name be taken off his list of proposed U.S. Attorney
removals. Sampson did so then at Goodling’s request and did so again in
September 2006. 37 In his interview with us, Sampson said he could not
recall why O’Meilia’s name came off the list. 38 Goodling and possibly
Gonzales, no other senior Department official was aware at that time that
Sampson had sent to Miers the September 13 proposal, much less the two
previous proposals recommending the removal of specific U.S. Attorneys. As
previously noted, Battle told us that neither Goodling nor Sampson ever
asked him about which U.S. Attorneys should be replaced. McNulty said he
did not even become aware of the effort to remove U.S. Attorneys until
late October 2006. Mercer said he had no conversations with Sampson about
U.S. Attorneys, aside from his discussions about Lam in the fall of 2005.
Margolis told us that aside from his discussions with Sampson in 2005, he
did not recall having conversations with Sampson about removing U.S.
Attorneys until sometime in November 2006. Sampson told us he placed the
additional names on the September 13 list based on “problems” he
learned about over the summer, not because he “went and asked the Deputy
Attorney General” or anyone else whether these particular U.S. Attorneys
(or others) should be designated for removal. In response to our
questions, Sampson stated that the “problems” he learned about between
April and September with respect to McKay and Charlton involved specific
conduct rather than overall performance. According to Sampson, McKay had
“crossed swords” with the Deputy Attorney General’s Office over
McKay’s endorsement of an information-sharing program, an issue we
discuss in more detail in the chapter on McKay’s removal. In Charlton’s
case, Sampson said he knew from his experience in the Attorney General’s
Office, as well as from talking to McNulty and Elston, that Charlton had
policy conflicts with the Deputy Attorney General’s Office over a death
penalty case and the tape recording of FBI interrogations. Sampson said
that in both of these matters Charlton was viewed as a maverick attempting
to impose his will on significant issues that had national implications.
We discuss in greater detail the reasons proffered for the removal of
Charlton and McKay in Chapters Eight and Nine of this report, and our
analysis of Sampson’s stated reasons. With regard to Miller, Sampson
told us he did not recall why he placed Miller’s name on the list, but
said he had a general sense that Miller was mediocre. He described Bogden
in the same way but offered no specifics to support his assessment of
Bogden’s performance. Sampson said he placed Marino on the list because
he perceived that Marino was not leading his office. Sampson told us that
the process of compiling the list of U.S. Attorneys for removal was
neither “scientific” nor “formal.” Sampson said that when he
discussed U.S. Attorneys with Department officials over time, he had a
current chart listing all the names of the U.S. Attorneys on which he made
notes. Sampson said he would keep the annotated chart until it became “dog-eared”
and then he would throw it away and start over. Sampson said he “sometimes”
made notes during his conversations with other Department officials, and
at other times he either made no notes or made them “after the fact.”
Sampson also told us that a lot of the information he gleaned from others
he “just 39 remembered.” Sampson described the discussions he had with
Department officials about U.S. Attorneys as “largely an oral exercise”
with “some really rough tracking.” 2. The Removal Plan Takes Shape On
September 17, 2006, Miers replied to Sampson’s September 13 e-mail by
stating, “I have not forgotten I need to follow up.” Sampson told us
that sometime in late September 2006, he discussed with Gonzales the
status of his proposal to remove several U.S. Attorneys. At that time,
according to both Gonzales and Sampson, Gonzales directed Sampson to
coordinate with Department leadership, particularly McNulty, to make sure
there was consensus on the recommendations. Between September 13 and
mid-November 2006, Sampson confined his discussions about the removal list
to a small group: Goodling, Gonzales, McNulty, and Elston. According to
Sampson, he did not discuss the September 13 list with Margolis or consult
with him on later drafts of the list, even though Sampson described
Margolis to congressional investigators as a “repository” of knowledge
on U.S. Attorneys’ performance, and even though Sampson had sought
Margolis’s views in the early stages of the process. Sampson stated that
he “assumed” that McNulty would consult Margolis and that Sampson “relied”
on McNulty and Elston to do so. However, neither McNulty nor Elston did,
and Sampson never sought to verify his assumption or contact Margolis
directly about the removal list.38 In late September or early October
2006, Sampson told Elston that the U.S. Attorney removal plan was moving
forward. According to Elston, Sampson asked him to consult with McNulty
and put together a list of U.S. Attorneys they would recommend for
removal. Elston said he mentioned the concept to McNulty, and, according
to Elston, McNulty was not “wild about it.” Elston said he took no
other action on Sampson’s request because of the press of other
business, as well as his and McNulty’s lack of enthusiasm for the plan.
On October 17, Sampson, having heard nothing from the Deputy Attorney
General’s Office, sent Elston an e-mail in which he forwarded his email
exchanges with Miers from September 13 and 17, including Sampson’s
proposal for “pushing out” certain U.S. Attorneys. In his e-mail to
Elston, Sampson referred him to “my list of U.S. Attorneys we should
consider replacing” and asked if his list “match[ed] up” with Elston’s
list. Although Elston told us that he had created no such list, Elston
replied by e-mail to 38 McNulty told us that he did not recall discussing
the removal issue with Margolis but said he “believed” at the time
that Margolis was “aware” of the issue, and McNulty said he made the
“assumption” that Sampson had consulted him. 40 Sampson’s question
about whether their lists matched: “Very much so - I may have a few
additions when I get back to my desk.” After receiving the October 17
e-mail from Sampson, Elston discussed Sampson’s September 13 U.S.
Attorney removal list with McNulty. According to Elston, McNulty’s
instinct from the “get-go” was that this was a “bad idea” and
McNulty asked Elston, “Are we really doing this[?].” McNulty told
congressional investigators that even though he was aware of concerns
about each of the U.S. Attorneys targeted for removal, he was “a softie”
when it came to addressing such concerns with the U.S. Attorneys directly,
and said the removal plan was contrary to the way he would have addressed
such concerns. However, McNulty said he did not express his reservations
about the removal plan to Sampson or the Attorney General. McNulty told us
that when he heard from Elston about the removal plan at this point, he
was surprised because he had no inkling about such a removal plan.
However, he did not object to the plan. McNulty said that the way Elston
presented the plan to him was along the lines of “here is the idea, and
here are the names of individuals identified [for removal].” McNulty
said he understood from Elston that he was supposed to object if he did
not agree that certain names belonged on the list. When we asked McNulty
why he did not object to the plan, he told us that he was “predominantly
deferential” because he viewed Sampson and the White House as “the
personnel people [who] . . . decide who comes and who goes.” He also
said he thought the removals were going to be handled in a way that would
not harm the U.S. Attorneys who were being asked to resign. Elston told us
that he informed Sampson a few days after the October 17 e-mail that he
had no additions to the list. G. Elston’s List - November 1, 2006
However, we found that on November 1, 2006, Elston sent a short e-mail to
Sampson with the subject line “Other Possibilities”: These have been
suggested to me by others: • Chris Christie [D. N.J.]; • Colm Connelly
[D. Del.]; • Mary Beth Buchanan [W.D. Pa.]; • John Brownlee [W.D.
Va.]; 41 • Max Wood [M.D. Ga.]. The e-mail named no sources and offered
no reasons or explanations for the U.S. Attorneys on Elston’s list.
Elston told us that his November 1 e-mail was not a response to Sampson’s
earlier request that he and McNulty prepare a list of U.S. Attorneys they
recommended for removal. Rather, according to Elston, shortly after Elston
told Sampson that he and McNulty had no additions for Sampson’s October
17 list, Sampson asked him to check with others in the Department to see
if there were other U.S. Attorney “problems.” The idea, as Elston said
he understood it from Sampson, was that there were only 2 years left in
the Administration and if changes in the U.S. Attorney ranks were to be
made, this was the time to do it. Elston said that in keeping with that
premise, Sampson wanted to ensure that all U.S. Attorney issues had been
identified so a decision on all U.S. Attorney removals could be made at
one time. Elston said that after receiving Sampson’s request, he spoke
with four or five Department officials, primarily in the Tax and Criminal
Divisions (including Criminal Division Assistant Attorney General Alice
Fisher and her Chief of Staff Matthew Friedrich), to ascertain whether
there were any issues with U.S. Attorneys that needed to be explored.
Elston said the names on his November 1 e-mail were the product of his “casual
inquiries” on Sampson’s behalf. Elston also told us that his November
1 list did not constitute his recommendation that the named individuals be
removed from office. He maintained in his interview with us that he did
not believe any of the five U.S. Attorneys warranted removal. Elston said
that he also expressed that view to Sampson when they discussed his
November 1 list. He said that Sampson concurred that the five should not
be added to the list. When we asked Elston why he furnished the names to
Sampson if he did not endorse their removal, he said that he was simply
doing what Sampson asked him to do: find out if other Department managers
had issues with any U.S. Attorneys and report back on the results.
According to Elston, his November 1 e-mail was not intended or taken as a
recommendation for action. Sampson recalled things differently. According
to Sampson, he had asked Elston to “vet” the October 17 list with
McNulty to see if any names should be added to or removed from the list.
Sampson told us he did not know where Elston had obtained the additional
names, but he understood Elston’s list to be names that McNulty and
Elston, and maybe Margolis, wanted to add to the list. Sampson said he
believed that he and Elston discussed the basis for including the five
additional names, and Sampson said he did not agree that any of the names
on Elston’s list should be included on the removal list. Sampson said
that the process was that if one person thought that someone 42 should not
be on the list, that name would not be included. Consequently, none of the
names on Elston’s list were added to Sampson’s removal list. Both
McNulty and Margolis told us that Elston did not consult with them about
the names on his November 1 list, and both said they did not know how
Elston obtained the names. H. The Fifth List - November 7, 2006 From
September 13 until November 7, no changes appeared on Sampson’s proposed
U.S. Attorney removal list. On the evening of November 7, Sampson sent an
e-mail to Elston (with a copy to McNulty) asking him to review the “Plan
for Replacing Certain United States Attorneys” proposed in the e-mail
and to provide comments as soon as possible so that he could forward the
plan to Miers that evening. The e-mail included a list of nine U.S.
Attorneys proposed for removal. The first eight names on Sampson’s
November 7 list were identical to the names on his September 13 and
October 17 lists: • Paul Charlton (D. Ariz.); • Carol C. Lam (S.D.
Cal.); • Greg Miller (N.D. Fla.); • Paula Silsby (D. Me.); •
Margaret M. Chiara (W.D. Mich); • Daniel Bogden (D. Nev.); • Thomas
Marino (M.D. Pa.); and • John McKay (W.D. Wash.). One additional name
was added that had not appeared on any previous list prepared by Sampson:
David Iglesias (D. N.M.). 1. Iglesias is Added to the List The removal of
David Iglesias as U.S. Attorney in the District of New Mexico was perhaps
the most controversial removal of all the U.S. Attorneys. As discussed in
more detail in Chapter Six, it appears that Sampson put Iglesias on the
removal list sometime after October 17 based largely on complaints about
Iglesias’s handling of certain voter fraud and public corruption
investigations in New Mexico. Sampson said he knew that New Mexico
Republican Senator Pete Domenici had called Attorney General Gonzales on
three separate occasions in 2005 and 2006 to register complaints 43 about
Iglesias’s performance. Sampson said that in October 2006 he also
learned from either Elston or McNulty that Senator Domenici had also
called McNulty to complain that Iglesias was “not up to the job.”
According to McNulty, Senator Domenici had criticized Iglesias’s
handling of public corruption cases and said that Iglesias was “in over
his head.” McNulty told us that Domenici’s assertiveness and tone
during the conversation were “striking.” McNulty said that his
conversation with Domenici was the type he would have discussed with
Gonzales and Sampson, but he said he could not specifically recall doing
so. When we asked if the October 2006 complaint from Senator Domenici to
McNulty was the most important factor in putting Iglesias’s name on the
list, Sampson said: “I don’t remember putting his name on a list. I
did it . . . but I don’t remember doing it and I don’t remember there
being a specific reason for doing it . . . I knew these things generally
about Mr. Iglesias and I apparently put his name on the list.” As we
discuss in detail in Chapter Six, Iglesias revealed in early March 2007
that Senator Domenici had called him in late October 2006 and asked
whether a specific public corruption case involving Democrats would be
indicted before the upcoming November election. Iglesias later expressed
publicly his belief that his removal was precipitated by Senator Domenici’s
disappointment with the negative answer Iglesias gave him. At the same
time, Iglesias revealed that New Mexico Representative Heather Wilson had
also called him in October to inquire about the status of public
corruption cases. We also learned that officials and party activists of
the New Mexico Republican Party complained to White House and Department
officials about Iglesias beginning in 2004. The complaints centered around
Iglesias’s handling of voter fraud allegations and politically sensitive
public corruption cases. 2. The Removal Plan In his November 7 e-mail,
Sampson included a written plan for removing the nine U.S. Attorneys that
contained four steps to be carried out over several days: Step 1 - Battle
was to call each of the named U.S. Attorneys and follow a prepared script
seeking their resignations based on the Administration’s desire to “give
someone else the opportunity to serve” as U.S. Attorney for the
remaining 2 years of the Administration. Step 2 - While Battle was calling
the designated U.S. Attorneys, Deputy White House Counsel Kelley (or the
appropriate Associate Counsel) would call the senior Republican Senators
from the affected states to inform them of the Administration’s decision
“to 44 give someone else the opportunity to serve” as U.S. Attorney
for what remained of the President’s second term. Sampson stated
parenthetically that, if pushed, Kelley would explain that “the
determination is based on a thorough review of the U.S. Attorney’s
performance.” The senators would also be told that they would be looked
to for recommendations for the new U.S. Attorney. Step 3 - During November
and December 2006, the Department, working with the White House Counsel,
would evaluate and select candidates for either appointment as Interim
U.S. Attorneys pursuant to the Attorney General’s new statutory
authority to confer indefinite appointments, or as Acting U.S. Attorneys
(for a 210-day period) under a separate statutory provision.39 Step 4 -
The Department and White House Counsel would proceed on an expedited basis
to identify, evaluate, and recommend candidates for the permanent U.S.
Attorney position (Presidentially appointed, Senate-confirmed) in each
district. Step 3 in the plan called for the Department and the White House
to identify Interim U.S. Attorney candidates. According to Sampson,
however, at the time the plan was activated there were no replacement
candidates “in the queue.” We found no evidence that as of November 7,
Sampson or other Department officials had identified any candidates to
replace the U.S. Attorneys who were to be removed. Nevertheless, the
Department and the White House decided to proceed with the plan to remove
the listed U.S. Attorneys. 3. Reaction to the November 7 List and Plan On
the evening of November 7, Elston replied to Sampson’s e-mail, stating:
This looks fine to me - trying to get Paul’s [McNulty] input as well.
The only concern I have is that Paul just visited NDFla and asked that
Greg Miller not be on the list. He does seem to be running things well (if
somewhat independent of DOJ). Sampson in turn responded that he would “wait
for the DAG’s input (but no later than tomorrow).” Sometime between
November 7 and November 15, Sampson said he took Miller’s name off the
list. He said he did so because “the Deputy [Attorney General] asked
that it be taken off.” 39 The statutory provision, 5 U.S.C. §
3345(a)(1), allows the President to appoint the First Assistant United
States Attorney as Acting U.S. Attorney for a 210-day period or until a
nominee is confirmed, whichever is sooner. 45 McNulty told us that at the
time he had recently visited Miller’s district and did not perceive any
problems with Miller’s performance. Following the dissemination of the
November 7 list, Sampson deleted two other names - Silsby and Marino -
from the list, but not because anyone disagreed with the removal
recommendation. According to Sampson, Silsby’s and Marino’s names were
removed because both were believed to have the political support of their
home-state Senators and the judgment was made not to risk a fight with the
Senators over the proposed removals. According to Sampson, McNulty said
that Marino had been recommended by Senator Arlen Specter from
Pennsylvania. Sampson told us that they did not ask for Marino’s
resignation because of the risk of a “brush fire” with the Senator.
McNulty stated that he had no recollection of any such conversation with
Sampson about Marino and doubted that the conversation took place. With
respect to Silsby, Sampson told us that the Maine Senators (Collins and
Snowe) supported Silsby and the judgment was made “not to fight the
Senators on that.” The other U.S. Attorneys on Sampson’s November 7
list, including Iglesias, remained on the list. According to McNulty and
Elston, discussions with Sampson concerning the remaining names on the
November 7 removal list - Charlton, Lam, Chiara, Bogden, McKay, and
Iglesias - focused on whether there was a good reason to take them off
rather than on the reason they were on the list in the first place.
McNulty said that the U.S. Attorney removal process was an initiative of
the Office of the Attorney General related to a “personnel matter”
that was within the province of the Attorney General, and that he
therefore deferred to the Office of the Attorney General in the matter.
McNulty also told us that Sampson did not ask for his permission to engage
in the removal effort or seek his approval. McNulty said the only role he
was asked to play was to review the list for the purpose of removing any
name with which he disagreed. McNulty said his reaction to the November 7
plan was a mixture of surprise that it was being implemented and deference
to the personnel prerogatives of the Attorney General’s Office. However,
he also said he felt that the plan was reasonable in that each U.S.
Attorney would be given ample time to make the transition to private life.
Both McNulty and Elston said they were familiar with the issues
surrounding Lam, Chiara, Charlton, and McKay, and neither argued in favor
of taking any of those four off the list. With respect to Bogden, McNulty
said that he knew little about Bogden’s performance but was told by
Sampson that he was on the list because he was not an effective or dynamic
leader in an important district with “special challenges.”40 McNulty
told us that he 40 In the Department’s after-the-fact justifications for
Bogden’s removal, which we discuss below, Las Vegas was characterized as
an important district with special challenges (Cont’d.) 46 accepted
Sampson’s explanation without looking into Bogden’s record because of
his “deferential approach” toward the Attorney General’s Office in
this matter. Later, however, after the final removal decisions had been
made on November 27, McNulty told Sampson he was “skittish” about
Bogden’s removal because, as a career federal prosecutor, Bogden’s
transition to the private sector might pose financial hardships on his
family. McNulty said that after Sampson told him that Bogden was single,
he dropped the issue. McNulty also did not object to Iglesias’s
inclusion on the removal list. As we discuss in more detail in Chapter
Six, McNulty said he was unaware of any problems with Iglesias until he
received a telephone call on October 4 from Senator Domenici complaining
about Iglesias’s handling of public corruption cases and said that he
was “in over his head.” McNulty told us that when he saw Iglesias’s
name on the list, he associated it with Senator Domenici’s complaint and
viewed the decision to remove Iglesias as falling in the “category of
personnel,” meaning something that was outside his “bailiwick.”
Elston said he did not object to the removal of either Bogden or Iglesias
because he viewed both as “mediocre” U.S. Attorneys. He also said he
believed at the time that Iglesias’s name was placed on the list because
of Senator Domenici’s call to McNulty in October 2006. He said he was
not given any other reason at the time for Iglesias’s name being added
at such a late date. He stated that “everybody” deemed the Senator’s
call to McNulty as significant. I. The Sixth List - November 15, 2006 1.
The Revised Plan On November 15, Sampson sent an e-mail to Miers and
Kelley attaching a revised list of U.S. Attorneys recommended for removal.
The list of U.S. Attorneys proposed for removal in the revised list had
been pared to six: • Paul Charlton (D. Ariz.); • Carol C. Lam (S.D.
Cal.); • Margaret M. Chiara (W.D. Mich.); • Daniel Bogden (D. Nev.);
because it was a target for terrorism and had significant levels of
violent crime and organized crime. 47 • John McKay (W.D. Wash.); and •
David Iglesias (D. N.M.). The names of Miller, Marino, and Silsby were
deleted from the list. Sampson’s November 15 e-mail also contained an
implementation plan that was similar to, but more elaborate than, the
draft that accompanied Sampson’s November 7 e-mail to Elston. In
particular, the second step, that Kelley would call home state “political
leads,” no longer contained the language that, if pushed, Kelley should
explain that the determination was based on a “thorough review” of the
U.S. Attorney’s performance. Instead, a new Step 3 was added entitled
“Prepare to Withstand Political Upheaval,” which addressed the subject
of resisting pressure from U.S. Attorneys and their political allies to
keep their jobs. According to this new Step 3, the response to any such
appeals would be that the Administration had decided to seek the
resignations in order to give someone else a chance to serve. Sampson’s
redrafted plan still had EOUSA Director Battle making the calls to the
U.S. Attorneys using talking points Sampson provided. The plan also still
called for the Department and White House Counsel’s Office to evaluate
and select interim candidates and to carry out the selection, nomination,
and appointment of U.S. Attorneys pursuant to the regular nomination and
Senate confirmation process. In his e-mail to Miers and Kelley on November
15, Sampson stated that he had consulted with the Deputy Attorney General
but had not yet informed others “who would need to be brought into the
loop,” including Acting Associate Attorney General Mercer, Battle, and
the Chair of the Attorney General’s Advisory Committee, U.S. Attorney
for the Western District of Texas Johnny Sutton. Sampson also stated in
the e-mail that everyone must be “steeled to withstand any political
upheaval that might result” and that if the White House and the
Department were to “start caving to complaining U.S. Attorneys or
Senators, then we shouldn’t do it - it’ll be more trouble than it is
worth.” Sampson’s plan called for implementation of the removals that
same week, although he informed Miers and Kelley that he would wait for
the “green light” from them. He also proposed to “circulate” the
plan within the Department and asked that Miers and Kelley circulate it to
“Karl’s [Rove] shop.” Once that was done, according to Sampson’s
e-mail, Kelley would make the “political lead calls” and Battle would
call the U.S. Attorneys slated for removal. 2. Execution of the Plan is
Postponed For logistical reasons, the plan could not be carried out on the
schedule Sampson suggested. After receiving Sampson’s November 15
e-mail, Miers responded that she would have to determine if the plan
required the President’s attention. She stated that the President had
left town the night before and she 48 would not be able to get his
approval “for some time.” Sampson responded by asking Miers who would
determine if the President needed to be apprised of the removal plan.
Sampson told us that he never received an answer to that question, and the
documents provided to us by the White House do not mention this issue. As
stated previously, Miers and Kelley from the White House Counsel’s
Office refused our requests for interviews. According to Margolis, in
approximately mid-November Sampson either showed him a list, or read from
a list, of six U.S. Attorneys that Sampson indicated were to be removed.
Margolis told us that he was struck more by the names Sampson did not
mention than the ones he did. In their discussions of the topic of
underperforming U.S. Attorneys, Margolis had consistently named Ryan and
Lampton, but neither name was mentioned by Sampson on this occasion.
Margolis told us that he asked Sampson why Ryan and Lampton were not on
the list and Sampson responded that he would look into it. Margolis told
us that he did not think to question Sampson about five of the six U.S.
Attorneys who were on Sampson’s list and did not know why they were on
the list. He told us he was more focused on the names that were omitted
and assumed Sampson had valid reasons for five of the six he named. 3. The
November 27, 2006, Meeting in the Attorney General’s Office In the
meantime, Sampson scheduled a meeting for November 27 to discuss the U.S.
Attorney removal plan with Department officials. On the morning of
November 27, a meeting was held in the Attorney General’s conference
room attended by Gonzales, Sampson, McNulty, Goodling, Principal Associate
Deputy Attorney General William Moschella, and Battle. Elston was
unavailable and Margolis was not invited. Of those in attendance,
Moschella was the only one who had not previously been involved in some
aspect of the removal plan. Moschella had been appointed the Principal
Associate Deputy Attorney General in early October 2006 after serving for
several years as the Assistant Attorney General for the Department’s
Office of Legislative Affairs. He told us that at the time of the meeting
he was generally aware of a matter involving removal of some U.S.
Attorneys, but had not been involved in the details. The 3-page document
discussed in Sampson’s November 15 e-mail containing the list of six
U.S. Attorneys proposed for removal and the steps to be taken to implement
the plan was distributed to the attendees at the meeting. By all accounts,
there was little discussion about the reasons the named U.S. Attorneys had
been designated for removal or whether anyone objected to the plan as a
whole or as it applied to any particular U.S. Attorney. For example,
Battle told us it was clear to him that the decision to remove the 49
named U.S. Attorneys had already been made, and the discussion at the
November 27 meeting focused on implementing the plan. a. Gonzales’s
Recollection of the November 27 Meeting In our interview of him, Gonzales
told us he did not recall the November 27 meeting at which he approved the
plan to request the resignations of six U.S. Attorneys. However, everyone
else in attendance at the meeting stated that Gonzales was present, that
he received a copy of the 3-page implementation plan, and that he gave his
approval to proceed. While Gonzales told us he had no independent
recollection of the November 27 meeting, he described the process and his
role in it. In contrast to Sampson’s description of himself as the “aggregator,”
Gonzales described himself as a delegator. He said he had given broad
instructions to Sampson to evaluate the current ranks of U.S. Attorneys to
determine, in concert with senior Department officials and the White
House, where improvements could be made. Gonzales told us that it was not
in his “nature to micromanage.” He said he surrounded himself with “good
people” to whom he delegated responsibility with the “expectation that
they’re going to do their jobs.” According to Gonzales, while Sampson
had provided him “periodic” and “very brief updates” about the
U.S. Attorney removal plan over time, they had no discussion of “substance”
in terms of the reasons underlying the removals, and Gonzales said he did
not know who was “going on and off the list” until November 27 at the
earliest. Gonzales also stated that while it was his decision to approve
the removals, he made it based on the recommendation of Sampson and the
consensus of Department leaders. However, he said that he never asked
Sampson or anyone else how they arrived at their recommendations or why
each U.S. Attorney warranted removal. Instead, he said he “assumed”
that Sampson engaged in an evaluation process, that the recommendations
were based on performance issues, and that they reflected the consensus of
senior management in the Department. b. McNulty Asks to Add Ryan to the
List According to McNulty, the November 27 meeting was “much shorter
than an hour,” and during the session the group discussed the logistics
of the removal plan. In her congressional testimony, Goodling said that at
the meeting the group discussed whether the U.S. Attorneys should be told
in person that they were being removed, but the concern was that the U.S.
Attorneys would then want to “litigate the reasons” for their removal.
Goodling said that someone pointed out that because the U.S. Attorneys
served at the pleasure of the President it was not necessary to tell them
the reasons why they were being removed. 50 According to Sampson, although
the original plan called for Battle to call the U.S. Attorneys who were
being removed, the group also discussed whether McNulty should notify the
U.S. Attorneys in person while they were in Washington, D.C., for a
Project Safe Childhood conference. Sampson told us that McNulty said he
did not want to make the calls because it would have made him
uncomfortable to do so. McNulty told us that it would have been unpleasant
to tell the U.S. Attorneys they were being removed, but he said he did not
recall “being asked to [notify the U.S. Attorneys], or that being part
of any plan.” McNulty said that having Battle make the calls was
consistent with the notion of keeping the removals in a “lower key.”
Sampson said the group ultimately decided that Battle would make the
calls, and they would execute the plan after December 6, when the U.S.
Attorneys would be back in their districts after attending the conference.
Sampson said that shortly after the meeting adjourned, McNulty told him
that Ryan should be included on the list based on the results of the
recently concluded Special EARS review. Sampson said he did not recall
doing so, but said he would have spoken to Gonzales soon after the meeting
and received his approval to add Ryan’s name to the list, bringing the
total number of U.S. Attorneys designated for removal to seven. c. White
House Approval of the Removal Plan In the week following the November 27
meeting, Sampson awaited word from the White House Counsel’s Office on
whether the Department was authorized to proceed with the removal plan.
Sampson told us that around this time he gave Deputy White House Counsel
Kelley a “thumbnail” sketch of the reasons each U.S. Attorney was
placed on the list. Sampson stated that Kelley raised no objection.
According to Sampson, the White House “was deferential to the Department
of Justice’s view on who should be on this list” throughout the
process. Sampson claimed that aside from Miers’s question about U.S.
Attorney Yang and her request to find a spot for Griffin, no one at the
White House had asked that a name be placed on or taken off the list at
any time. J. The Seventh and Final List - December 4, 2006 1. The White
House Approves the Plan On Monday, December 4, 2006, Kelley sent an e-mail
to Sampson (with a copy to Miers) stating: “We’re a go for the US Atty
plan. WH leg, political, and communications have signed off and
acknowledged that we have to be committed to following through once the
pressure comes.” 51 Sampson responded: “Great. We would like to
execute this on Thursday, December 7 (all the U.S. Attorneys are in town
for our Project Safe Childhood conference until Wednesday; we want to wait
until they are back home and dispersed, to reduce chatter).” Sampson
also reiterated who had responsibility for making the political calls: the
Attorney General was to call Senator Kyl of Arizona regarding Charlton;
either Miers or Kelley was to call Senator Ensign of Nevada regarding
Bogden and Senator Domenici of New Mexico regarding Iglesias; and the
White House Office of Political Affairs was to call the political “leads”
for California (regarding Lam and Ryan), Michigan (regarding Chiara), and
Washington (regarding McKay), all of which had no Republican Senator.
Later during the evening of December 4, Sampson e-mailed to Kelley and
Miers a revised removal plan that included Ryan’s name. Minutes later,
Sampson e-mailed the revised plan to McNulty, Battle, Goodling, Moschella,
and Elston, together with the e-mail string containing Kelley’s
authorization to proceed. In his forwarding e-mail to the Department
officials, Sampson suggested that AGAC Chair Sutton and Acting Associate
Attorney General Mercer be notified. The e-mail also suggested noon on
Thursday, December 7 for Battle to begin making his calls to the seven
U.S. Attorneys who would be removed. That evening, Sampson also sent an
e-mail to Scott Jennings and Jane Cherry, who worked in the White House
Office of Political Affairs, with a list of current U.S. Attorney
vacancies and a list of “vacancies expected shortly” - a list that
included the seven U.S. Attorneys who would be called on December 7.
Sampson wrote that the purpose of the e-mail was to notify the White House
that “we need to get some names generated pronto.” The next day,
December 5, Sampson e-mailed the revised plan to Mercer so that he would
be prepared in the event he received calls from “the field.” From the
context of the e-mail, it is clear that Mercer had not been involved in
the process until then. Sampson informed Mercer that the “Administration
has decided to ask some underperforming USAs to move on (you’ll remember
I beat back a much broader - like across the board - plan that [the White
House Counsel’s Office] was pushing after 2004.).” 2. The
Implementation of the Removal Plan On the morning of December 7, 2006, the
plan was executed. Gonzales and Sampson called Senator Kyl regarding
Charlton’s removal. The Senators and political leads for the other U.S.
Attorneys were also notified in accordance with the plan’s instructions.
During the afternoon of December 7, Battle called each of the seven U.S.
Attorneys on the removal list and essentially followed the script from 52
Sampson’s plan in asking each to resign.41 Battle said he told each U.S.
Attorney that the Administration thanked them for their service but was
looking to move in another direction and give somebody else a chance to
serve and was therefore asking them to submit their resignation by the end
of January 2007. According to Battle, some of the U.S. Attorneys asked
why, and some asked for more time. Battle said that none of the U.S.
Attorneys got upset with him, but he had the sense for some that, given
their strong personalities, there would be some “push back.” However,
Battle said that all agreed to comply with the request to resign. As we
discuss below, as well as in the chapters assessing the reasons proffered
for the removal of each U.S. Attorney, the U.S. Attorneys said they were
surprised and stunned at the calls asking them to resign. They told us,
and e-mails and other documents drafted in the aftermath of Battle’s
December 7 calls confirm, that they were confused about why they were
asked to resign and upset that they were given so little notice before the
deadline for their resignations. II. The Aftermath of the Removals In the
months following the December 7, 2006, calls to the U.S. Attorneys,
various concerns arose relating to their removals, including how the
process of selecting U.S. Attorneys for removal was conducted, whether the
removals of specific U.S. Attorneys were sought for an improper political
purpose, and whether the Department intended to bypass Senate confirmation
by using the Attorney General’s authority to make indefinite Interim
U.S. Attorney appointments of their replacements. 41 Step 2 of the plan
provided talking points for Battle to use when informing the U.S.
Attorneys that they were expected to resign: • What are your plans with
regard to continued service as U.S. Attorney? • The Administration is
grateful for your service as U.S. Attorney but has determined to give
someone else the opportunity to serve as U.S. Attorney in your district
for the final two years of the Administration. • We will work with you
to make sure there is a smooth transition, but intend to have a new Acting
or Interim U.S. Attorney in place by January 31, 2007. Step 3 provided
that if the U.S. Attorneys questioned the decision and wanted to know who
decided, Battle’s response was to be: “The Administration made the
determination to seek the resignations (not any specific person at the
White House or the Department of Justice.)” If asked “why me,” the
response was: “The Administration is grateful for your service, but
wants to give someone else a chance to serve in your district.” If the
U.S. Attorney said that s/he needed more time, the response was to be: “The
decision is to have a new Acting or Interim U.S. Attorney in place by
January 31, 2007 (granting “extensions” will hinder the process of
getting a new U.S. Attorney in place and giving that person the
opportunity to serve for a full two years.)” 53 The subsequent
revelation that seven U.S. Attorneys had been asked to resign on the same
day prompted congressional inquiries into the removals. On January 16,
2007, Senator Dianne Feinstein stated on the Senate floor that seven U.S.
Attorneys had been removed without cause. Media reports also disclosed
that two of the U.S. Attorneys had recently investigated high-profile
public corruption investigations at the time of their removals - Lam had
successfully prosecuted California Republican Congressman Duke Cunningham,
and Charlton was engaged in an ongoing investigation of Arizona Republican
Congressman Rick Renzi. In addition, the media reported allegations that
McKay was removed for failing to pursue voter fraud complaints following
the closely contested Washington State gubernatorial election in November
2004. In a press conference on February 28, 2007, Iglesias disclosed that
he had received telephone calls in October 2006 from two unidentified
members of Congress who pressured him to indict a public corruption case
in New Mexico before the November 2006 election. In his congressional
appearance on March 6, Iglesias stated that the two members of Congress
who allegedly pressured him were New Mexico Senator Pete Domenici and
Representative Heather Wilson. Iglesias testified that he believed he was
removed as U.S. Attorney because he failed to respond to their desire to
rush public corruption prosecutions. We discuss in the following sections
the immediate reaction to the removals, the Department’s response, and
the events that followed. A. The U.S. Attorneys’ Initial Reactions After
receiving the calls from Battle on December 7, Lam, Bogden, Iglesias, and
Chiara contacted McNulty. Lam, Bogden, and Iglesias sought more time
before submitting their resignations while Chiara sought McNulty’s
assistance in finding her a new position. McNulty did not immediately
respond to these requests. Lam also contacted Margolis to inquire whether
she had been asked to resign because she was the subject of any misconduct
investigation. Margolis told us that he first became aware that the
removal plan had actually been implemented when he received the call from
Lam. He said that when the plan had not been carried out by mid-November
2006, he assumed it was not going to go forward. Margolis told Lam that
her removal was not because of any misconduct issue. According to e-mail
records, Ryan complained to his contacts at the White House about his
treatment. Charlton and Bogden contacted Mercer and asked why they were
being removed. However, consistent with Sampson’s plan, the U.S.
Attorneys were given no explanation for the firings other than 54 that the
Administration wanted to give someone else a chance to serve. Most of the
U.S. Attorneys also sought more time before they had to resign. On
December 14, McKay sent an e-mail to all U.S. Attorneys announcing that he
planned to resign the following month. On December 15, Cummins sent an
e-mail to all U.S. Attorneys announcing that he would resign the following
week. B. Concern that the Department Intended to Bypass Senate
Confirmation for Replacement U.S. Attorneys On December 15, 2006, Attorney
General Gonzales and Arkansas Senator Mark Pryor discussed Gonzales’s
intention to appoint Tim Griffin as the Interim U.S. Attorney to replace
Cummins. Gonzales informed Senator Pryor that he intended to appoint
Griffin to be Interim U.S. Attorney, and Gonzales expressed his hope that
Senator Pryor would be able to support Griffin for the nomination after he
had had a chance to serve. According to Gonzales, Senator Pryor said he
would not commit to supporting Griffin’s nomination at that time. In an
e-mail dated December 19, 2006, Sampson drafted talking points to respond
to inquiries about the circumstances of Griffin’s appointment. The
talking points included the statements that when a U.S. Attorney vacancy
arises, someone needs to be appointed, even if on an interim basis to fill
the vacancy, that Griffin was appointed Interim U.S. Attorney because of
the timing of Cummins’s resignation, and that the Department “hoped
that there would be a U.S. Attorney who had been nominated and confirmed
in every district.” Sampson sent a copy of this e-mail to Associate
White House Counsel Chris Oprison. In response, Oprison told Sampson he
had discussed with Miers the Department’s response to press inquiries
about the circumstances of Griffin’s appointment. Oprison expressed
concern to Sampson about problems with Griffin’s nomination, noting that
it seemed that the Arkansas Senators would neither commit to supporting
Griffin nor say they would not support him. Oprison also stated that since
the Attorney General’s appointment of Griffin was of unlimited duration
pursuant to the Patriot Act amendment, the talking points used to respond
to press inquires about Griffin should “avoid referring to [Griffin] as
‘interim.’” Sampson immediately responded in an e-mail, “I think
we should gum this to death . . . .” Sampson suggested in his e-mail
that because Griffin’s interim appointment would be technically of
unlimited duration, if either of the Democratic Senators from Arkansas
would not agree to support Griffin’s nomination once he was nominated
and after he had served as Interim for a period of time, the Department
could “run out the clock” to the end of the Bush 55 Administration
while appearing to act in good faith by asking the Senators for
recommendations, interviewing other candidates, and pledging to “desire”
a Senate confirmed U.S. Attorney. Sampson also stated in the e-mail, “our
guy is in there so the status quo is good for us.” Sampson added, “I’m
not 100 percent sure that Tim was the guy on which to test drive this
authority, but know that getting him appointed was important to Harriet,
Karl, etc.” When confronted with this e-mail during his congressional
testimony, Sampson characterized his discussion of using the interim
appointment authority to bypass Senate confirmation as a “bad idea at
the staff level.” He told us that the idea was confined to Griffin.
Sampson also said Attorney General Gonzales never seriously considered
it.42 Gonzales told us he could not recall whether he discussed this issue
with Sampson at that time, but said he thought it was a “dumb idea.”
C. The Department Begins to Publicly Respond to Concerns About the
Removals Shortly after McKay and Cummins announced their resignations,
most of the U.S. Attorneys began discussing their removals among
themselves. By December 17, several of the U.S. Attorneys speculated among
themselves that the Department had asked 10 to 12 U.S. Attorneys to
resign. In mid-to-late December 2006, the news media began to report on
the removals. For example, on December 19, in an online story entitled
U.S. Attorney Ousted, a New Mexico television station reported that
Iglesias had been asked to resign. During the same period, other news
outlets began asking the Department for comment on the removals of U.S.
Attorneys. 1. Articles About Cummins’s Removal In late December 2006,
various articles began appearing in the Arkansas media regarding Cummins’s
resignation, Griffin’s appointment as Interim U.S. Attorney, and the
concerns of Arkansas Senators Pryor and Blanche Lincoln that the
Department intended to circumvent the confirmation process by appointing
Griffin as Interim U.S. Attorney. On December 27, 2006, the Arkansas
Democrat Gazette published an interview with Griffin discussing the
Senators’ concerns. The article included a statement from Department of
Justice spokesman Brian Roehrkasse that Griffin’s appointment was meant
to be temporary until Griffin could go through the formal nomination and
confirmation process, and that the Department had asked Senator Pryor to
meet with Griffin. According to the article, Roehrkasse 42 This matter is
discussed in detail in Chapter Five. 56 stated, “often, the first
assistant U.S. Attorney in the affected district will serve as the acting
U.S. Attorney until the formal nomination process begins for a
replacement,” but added “the first assistant is on maternity leave.”
Roehrkasse also stated, “Tim was chosen because of his significant
experience working as a federal prosecutor in both Arkansas and in the
Justice Department in Washington, D.C.” Cummins told us that when he
read the article he began to have doubts about the Department’s
credibility. Cummins said that Griffin had been working in the U.S.
Attorney’s Office since September 2006, and Cummins had known since June
of that year that Griffin was going to take his place. Cummins also said
that the maternity leave status of his First Assistant was not a reason
for Griffin’s appointment as the Interim U.S. Attorney because the
Department and the White House had always intended that Griffin would
replace Cummins as either Interim or permanent U.S. Attorney, or both. We
found no indication that anyone ever considered at the time appointing the
office’s First Assistant as Interim U.S. Attorney. The First Assistant
(now the U.S. Attorney) told us that she had no discussions with anyone at
the Department about the possibility of serving as Interim U.S. Attorney
when Cummins resigned. In addition, our review of e-mails between Sampson
and Goodling demonstrates that as early as August 2006 they discussed
using the Attorney General’s appointment authority to appoint Griffin
Interim U.S. Attorney because it was unclear whether Senator Pryor would
support Griffin’s nomination. We sought to determine where Roehrkasse
obtained the information that implied that the First Assistant’s
maternity leave was a reason for Griffin’s appointment as the Interim
U.S. Attorney. When we interviewed Roehrkasse, he told us that he thought
he had received the information from Goodling and Sampson. Roehrkasse said
he recalled receiving a question from a reporter concerning the
circumstances of Griffin’s appointment, and either Sampson, Goodling, or
both gave Roehrkasse three talking points: (1) Griffin was chosen because
he had significant experience; (2) the President might nominate him to be
the permanent U.S. Attorney; and (3) the First Assistant was not available
because she was either going on maternity leave or was on maternity leave.
Sampson told us that the information about the First Assistant’s
maternity leave did not come from him but likely came from Goodling.
Sampson said he recalled being present when Goodling briefed the Attorney
General before his December 15 telephone conversation with Pryor, and that
Goodling mentioned to Gonzales, in response to one of Gonzales’s
questions during the briefing about what was happening in the district,
that the First Assistant was on maternity leave. Sampson acknowledged that
Griffin was slated to be appointed Interim U.S. Attorney all along.
However, he told us he 57 did not consider correcting any misimpression
that Goodling had created because he did not believe the circumstances
called for him to do so.43 We asked Roehrkasse whether he thought the
statements he made concerning the First Assistant being unable to serve
because she was on maternity leave were misleading. Roehrkasse said that
he saw no problem with the statements. He said the quote about the First
Assistant being on maternity leave was a fact and that it was not as if he
had said “[the first assistant] was passed over [for consideration as
Interim U.S. Attorney] because she was on maternity leave.” Roehrkasse
also said that when he spoke with the reporter he believed, based on what
Goodling and Sampson had told him, that one of the reasons the First
Assistant was not chosen to be Interim U.S. Attorney was that she was on
maternity leave. Roehrkasse said he did not learn that the article may
have contained inaccuracies until after the controversy over the U.S.
Attorney removals erupted. However, we found no evidence that the
Department attempted to correct Roehrkasse’s misleading information at
the time. 2. Senators Express Concern About the Removals By early January
2007, other news articles reported that several U.S. Attorneys across the
country had been asked to resign. On January 9, 2007, Senators Patrick
Leahy and Dianne Feinstein wrote Attorney General Gonzales a letter
expressing concern that the Department had removed the U.S. Attorneys
without cause and intended to “appoint interim replacements and
potentially avoid the Senate confirmation process.” The two Senators
requested information “regarding all instances in which you have
exercised the authority to appoint an interim United States Attorney.”
The Senators also requested information “on whether any efforts have
been made to ask or encourage the former or current U.S. Attorneys to
resign their position.” On January 11, Senator Pryor sent Attorney
General Gonzales a letter expressing concern that the Administration had
forced Cummins to resign in order to appoint Griffin. Pryor stated that he
was “astonished” that the Department’s liaison had told his staff
and the media that the First Assistant was not chosen to be the Interim
U.S. Attorney because she was on maternity leave, and he expressed concern
that Griffin’s appointment was intended to bypass the Senate
confirmation process.44 The same day, Senators Feinstein, 43 As noted
above, Goodling refused to be interviewed by us. 44 In a January 31, 2007,
letter responding to Senator Pryor signed by Richard Hertling, Acting
Assistant Attorney General for the Office of Legislative Affairs, the
Department wrote that it was committed to having a Presidentially
appointed, Senate-confirmed U.S. Attorney in every district. The
Department denied that the Administration sought to avoid the Senate
confirmation process, and said that Griffin was chosen to serve as Interim
U.S. Attorney (Cont’d.) 58 Leahy, and Pryor introduced legislation
designed to restore the authority of federal district courts to appoint
Interim U.S. Attorneys when 120 days had passed without a Senate-confirmed
U.S. Attorney. As noted previously, we found no evidence that the
Department had candidates waiting to be nominated to replace the U.S.
Attorneys at the time of their removals. McNulty told us that in late
December to mid-January, when the individual U.S. Attorneys had begun
announcing their resignations, Sampson consulted with him about possible
replacements. McNulty said Sampson assured him that the replacement
process was being conducted “by the book,” and that the Department was
initially attempting to select the First Assistants to act as Interim U.S.
Attorneys. McNulty said Sampson also told him that the Department was
working with the Senators or state commissions to obtain the names of
individuals who would go through the nomination process. Our review of
e-mail records and other documents confirmed that the Department was in
fact working with state congressional delegations and others to obtain the
names of individuals to undergo the nomination and confirmation process
for U.S. Attorneys. 3. Sampson’s January 2007 Briefing of Senate
Judiciary Committee Staff In response to the January 9, 2007, letter from
Senators Feinstein and Leahy alleging that the Department had asked
several U.S. Attorneys to resign “without cause” and that the plan was
to appoint “interim replacements” and avoid the Senate confirmation
process, Sampson called Senator Feinstein’s chief counsel, Jennifer
Duck, to set up a meeting with her and Senator Leahy’s chief counsel,
Bruce Cohen. The purpose of the meeting, according to Sampson, was to “mollify”
the Senators that the Department’s actions were not sinister. We found
that Sampson’s representations at the meeting with Senate staff
exacerbated rather than mollified the skepticism concerning the U.S.
Attorney removals. On January 12, 2007, Sampson and Richard Hertling, who
had recently assumed the position of Acting Assistant Attorney General for
the Office of Legislative Affairs, met with Duck and Cohen in Cohen’s
office. According to Hertling, who said he knew little about the
controversy at the time, Sampson attempted to impress upon Duck and Cohen
that the removals were the result of a process the Department had been
engaged in for some time of identifying the U.S. Attorneys who were the
“weakest performers,” and that because of his qualifications, not
because the First Assistant was on maternity leave. The Department’s
letter did not address Senator Pryor’s assertion that the Administration
had forced Cummins to resign so that Griffin could be appointed. 59 the
process included a review of EARS evaluations. Hertling told us that one
of the things that stuck in his mind about the meeting was Sampson’s “specific
reference” to EARS evaluations as a basis for the selection of these
particular U.S. Attorneys for termination. Hertling said he left the
meeting with the “distinct impression” that EARS evaluations were
central to the process Sampson had described. We also interviewed Duck and
Cohen. According to Duck, Sampson said all the U.S. Attorneys who were
removed were “underperformers.” When Duck asked how they were
evaluated, Sampson first said the decisions were based on EARS
evaluations, but later said that while some were based on EARS
evaluations, some were based on other factors such as caseload,
responsiveness to policy initiatives, resource allocation, and the like.
Cohen similarly stated that Sampson stressed that the Department decided
to remove certain “underperforming” U.S. Attorneys and that the
removals were based on periodic performance reviews - EARS evaluations.
According to Cohen, Sampson initially spoke of the value of EARS reports
in determining which U.S. Attorneys fell into the “underperforming”
category, but he backtracked when Duck pressed him for copies of the EARS
reports for each removed U.S. Attorney. Cohen and Duck also told us that
Sampson emphasized that all the affected U.S. Attorneys were removed on
the basis of performance, including Cummins, whose replacement by Griffin
had triggered the Senate’s interest in the first place. According to
Duck, Sampson said that Cummins was considered an “underperforming”
U.S. Attorney, and the Attorney General had appointed Griffin Interim U.S.
Attorney upon Cummins’s resignation because the First Assistant was on
maternity leave and not available to accept the appointment. Sampson told
us that he mentioned EARS evaluations only in the context of explaining
Ryan’s removal, which he considered of particular interest to Senator
Feinstein. Sampson said he doubted that he would have suggested that the
other removals were based on EARS evaluations because “that wouldn’t
have been accurate.” In addition, Sampson said that he could not recall
whether he told Duck and Cohen that Cummins was removed based on
performance issues like the other seven. Sampson acknowledged, however,
that he viewed Cummins’s removal as performance-based at the time. When
we asked Sampson if he distinguished Cummins from the other removed U.S.
Attorneys, as McNulty did later, on the ground that someone in the 60
Administration (Miers) had asked that Griffin be given the opportunity to
serve, Sampson replied: “I don’t remember what I said.”45 Sampson’s
meeting with Duck and Cohen did not satisfy the Senate Judiciary Committee
members that the U.S. Attorneys were removed for legitimate reasons. On
January 16, Senator Feinstein criticized the removals in a statement on
the Senate floor, asserting that several U.S. Attorneys were forced to
resign so that the Attorney General could appoint interim replacements
pursuant to the Patriot Act amendment and thereby avoid Senate
confirmation. Feinstein noted that she had learned that seven U.S.
Attorneys had been forced to resign without cause, including two from
California, “as well as U.S. Attorneys from New Mexico, Nevada,
Arkansas, Texas, Washington, and Arizona.”46 On January 25, Senator
Charles Schumer issued a notice scheduling a hearing for early February
2007 on whether the Department was “politicizing” the “hiring and
firing” of U.S. Attorneys. The previous day, Hertling had contacted
Preet Bharara, Senator Schumer’s Chief Counsel on the Senate Judiciary
Committee, and arranged a meeting on January 26 for Sampson and Hertling
to brief Bharara on the U.S. Attorney issue. According to Bharara, Sampson’s
theme at the briefing on January 26 was that Senator Feinstein’s
denunciation of the removals on the Senate floor on January 16 was
misguided. Bharara told us that Sampson maintained that none of the U.S.
Attorneys were removed in order to stymie any investigation. Bharara said
that Sampson stressed that, to the contrary, there were performance
reasons for each removal, and while Sampson declined to go into specifics
at this meeting, he assured Bharara that if he knew all the details he
would agree with the Department’s decisions. Although Bharara told us he
did not have a specific recollection of what Sampson said about the role
EARS evaluations played in the removal decisions, Bharara recalled that he
was eager to obtain the EARS reports after hearing what Sampson said.
Bharara also said he was surprised when he later heard McNulty say at a
closed briefing with members of the Senate Judiciary Committee and staff
on February 14 that EARS evaluations did not reflect problems with most of
the U.S. Attorneys who were forced to resign. 45 Sampson said that Cohen
pressed him on the total number of U.S. Attorneys who were removed.
Sampson assured him that the number was seven, plus Cummins. It was
revealed during subsequent congressional hearings that Todd Graves was
also asked to resign in January 2006 under circumstances similar to the
other eight U.S. Attorneys. 46 Feinstein included Texas by mistake. 61 D.
Elston’s Telephone Calls to Charlton and McKay on January 17, 2007
Attorney General Gonzales was scheduled to testify at an oversight hearing
before the Senate Judiciary Committee on January 18, 2007. During January
2007, senior Department staff participated in several sessions to prepare
the Attorney General for his upcoming congressional testimony. Elston told
us that during one session held on January 17, 2007, the day before
Gonzales’s congressional testimony, the group discussed how Gonzales
would handle questions about the U.S. Attorney removals. As noted above,
by mid-January the media was raising questions about the resignations of
Cummins, McKay, Iglesias, Lam, Bogden, Ryan, and Charlton. Elston said
that after the January 17 preparation session, McNulty expressed concern
for the U.S. Attorneys about whom members of Congress and the media were
speculating, but who had not publicly confirmed they had been asked to
resign. Elston told us that, at the time, the Department’s goal was to
allow the U.S. Attorneys to leave on their own terms and announce their
resignations in accordance with their own sense of appropriate timing.
According to Elston, McNulty was concerned that the U.S. Attorneys might
be worried about what the Attorney General was going to say about them in
his testimony at the January 18 hearing. Elston said the concern was that
they might publicly announce that the Department had sought their
resignations, in anticipation that the Attorney General would say they had
been removed. Elston said that on January 17 McNulty asked him to call
McKay, Charlton, and Ryan to let them know that the Attorney General was
not going to testify about who had been removed or about the basis for the
removals. We were unable to determine why Elston was chosen to call only
McKay, Charlton, and Ryan. Elston said he believed that someone else was
assigned to call the others. However, we did not find any indication that
anyone else in the Department was asked to place calls to the other U.S.
Attorneys prior to the Attorney General’s testimony. On January 17,
Elston called McKay at 5:30 p.m., and an e-mail reflects that Elston
called Charlton shortly afterwards. Elston said he did not speak to Ryan,
but instead spoke to Ryan’s First Assistant. Elston said he gave McKay,
Charlton, and Ryan’s First Assistant the same message: that when the 62
Attorney General testified, he would not name the U.S. Attorneys or
discuss the reasons for their removal.47 1. Telephone Call to McKay
According to McKay, Elston began the telephone conversation by saying that
people in the Department were surprised they had not seen any “‘incendiary
comments’” from McKay in the press. McKay said that Elston then stated
that the Attorney General would make only general statements in his Senate
testimony about the resignations, would not state that the U.S. Attorneys
had been fired, and would not disclose the reasons for their removal.
McKay told us that because Elston began the conversation by saying that
the Department had noticed McKay had not discussed his removal in the
press, and then said that the Attorney General also would not discuss why
McKay had resigned, McKay believed that Elston was offering him a quid pro
quo: “You keep quiet, we won’t say anything.” According to McKay,
Elston then asked if he had any response. McKay said he replied that he
would stay quiet not because the Attorney General would not disclose why
he had been fired, but rather because he believed it was his duty to do
so. McKay said he acknowledged to Elston that he served at the pleasure of
the President and said he would not say anything that reflected poorly on
the President or on the Department. McKay’s contemporaneous notes of
this conversation indicate that he also told Elston that his reputation in
Seattle was secure and would not be tarnished by anything the Department
said about him. McKay’s notes further state: “I wasn’t given an
explanation and I never asked why.” McKay’s notes also state that
Elston was clearly trying to do “damage control” in the wake of media
reports about the removals. When McKay later testified before the Senate
Judiciary Committee on March 6, he did not discuss his conversation with
Elston. However, in subsequent written testimony to the House Judiciary
Committee and during our interview, McKay said he felt that Elston was
attempting to threaten him into remaining silent about his removal.48 47
Elston’s conversation with Ryan’s First Assistant is reflected in a
January 18, 2007, e-mail Elston sent to Sampson, Moschella, Goodling,
Mercer, and McNulty. In that e-mail, Elston stated that he gave the First
Assistant his “talkers for McKay and Charlton and asked her to convey
them to Kevin [Ryan].” Elston also stated that the First Assistant told
him that Ryan was not returning phone calls and was trying to “stay out
of this.” 48 In their written statements to the House Judiciary
Subcommittee following their testimony on March 6, 2007, both Charlton and
McKay stated that they felt that Elston was attempting to persuade them to
remain silent about their dismissal. 63 2. Telephone Call to Charlton
Charlton told us that he viewed Elston’s phone call to him as a veiled
threat. Charlton said that Elston told him that the Department’s senior
management had noticed that he had not been commenting in the media, and
he wanted Charlton to know that the Attorney General was not going to
comment on why Charlton had been asked to resign. Charlton said he had not
been told the reasons for his resignation but thought it was because of
his disagreement with Department leaders concerning a death penalty case.
He told us that he thought at the time of Elston’s call that he did not
care if the Attorney General disclosed to Congress that he resigned over a
disagreement about the death penalty. Charlton said he interpreted Elston’s
call as a warning that the Attorney General would make comments about
Charlton unless he remained quiet. Charlton said he spoke to McKay shortly
after his conversation with Elston, and after the two compared notes
Charlton concluded that at the very least Elston was trying to intimidate
them. 3. Elston’s Description of the Telephone Calls When we interviewed
Elston, he denied calling McKay and Charlton in an attempt to threaten
them to remain silent, and denied offering them a quid pro quo in exchange
for their silence. Elston noted that he made the calls at the close of
business on the day before the Attorney General’s testimony, and that he
did not see the Attorney General prior to his testimony. Elston also said
that no one asked him to report back as to whether Charlton and McKay were
going to continue to remain silent about their removals and he did not do
so. During our interview, we showed Elston the notes McKay took shortly
after their telephone conversation. Elston said he did not recall McKay
making several of the statements contained in his notes, and Elston said
he believed that some statements in the notes were “a fabrication.”
Elston stated that if the conversation had gone the way it was described
in McKay’s notes, it would have caused him such alarm that he would have
reported to McNulty that there was a problem with McKay. We found no
evidence that Elston discussed with anyone his conversations with McKay
and Charlton until March 2007, when Cummins testified before Congress
about a similar conversation, discussed below, that Cummins had with
Elston on February 20, 2007. 64 E. Attorney General Gonzales’s January
18, 2007, Testimony Before the Senate Judiciary Committee On January 18,
2007, Attorney General Gonzales testified before the Senate Judiciary
Committee. In response to questioning from Senator Feinstein concerning
why several U.S. Attorneys were asked to resign, Gonzales stated: [S]ome
people should view [the resignations] as a sign of good management. What
we do is we make an evaluation about the performance of individuals. And I
have a responsibility to the people in your district that we have the best
possible people in these positions. And that’s the reason why changes
sometimes have to be made, although there are a number of reasons why
changes get made and why people leave on their own. Gonzales also
testified, “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,
Senateconfirmed United States Attorney.” At the hearing, Gonzales
declined to disclose publicly the number of U.S. Attorneys who had been
removed or the reasons for their removal, stating that he did not want to
get into a public discussion of personnel decisions. Gonzales asserted
that he would never make a change in a U.S. Attorney position for
political reasons, or if it would jeopardize an ongoing serious
investigation. One week later, the Senate Judiciary Committee scheduled a
hearing for February 6, 2007, on “Preserving Prosecutorial Independence:
Is the Department of Justice Politicizing the Hiring and Firing of U.S.
Attorneys?” Sampson and Hertling recommended that McNulty testify at the
hearing because the Department needed someone senior to validate the
removal decisions and McNulty was perceived to have a good relationship
with Senator Schumer, who was scheduled to chair the hearing. McNulty told
us that even though he was not responsible for initiating the removals of
the U.S. Attorneys, he agreed to testify as a favor to Sampson because he
recognized the need for a top-level Department official to respond to the
Senate’s concerns. McNulty told us that the Department believed that in
addition to the U.S. Attorney removals, the Senate was concerned about the
Attorney General’s authority to make indefinite Interim U.S. Attorney
appointments. 65 F. Cummins Seeks Advice from Elston In early February,
Cummins notified Elston that members of Senator Pryor’s and Senator
Schumer’s staffs had asked Cummins to testify at the upcoming Senate
Judiciary Committee hearing. Elston informed Sampson that Cummins had
declined the invitation but told Elston that if the Department wanted him
to testify he would explain the circumstances of his resignation and would
also strongly support the Attorney General’s authority to appoint
Interim U.S. Attorneys for an indefinite period. Sampson responded that he
did not think Cummins should testify because he would have to provide
truthful answers to questions such as whether he had resigned voluntarily,
whether he was asked to resign because he was underperforming, and whether
Griffin had discussed becoming U.S. Attorney and avoiding Senate
confirmation. According to Elston and Cummins, Elston told Cummins that
the Department would take no position on whether he should testify. G.
McNulty’s February 6, 2007, Testimony Before the Senate Judiciary
Committee 1. McNulty’s Use of the Term “Performance-Related” to
Describe the Removals By the time McNulty testified on February 6, the
media had reported that Lam, Ryan, McKay, Iglesias, Bogden, and Charlton
had been told to resign on the same day. At the hearing, McNulty stated
that with the exception of Cummins, the resignations of the U.S. Attorneys
were requested for “performance-related” reasons. With respect to
Cummins, McNulty testified that he was removed in order to give Griffin a
chance to serve as U.S. Attorney. McNulty used the term “performance-related”
at least five times in his testimony to describe why the U.S. Attorneys
(other than Cummins) were removed. In response to a question about whether
the White House was involved in the removals, McNulty testified that he
was “sure [that the White House] was consulted before [the Department
made] the phone calls” to the U.S. Attorneys because the U.S. Attorneys
were presidential appointees. During his testimony, McNulty declined to
publicly disclose how many U.S. Attorneys were asked to resign or their
identities. Instead, he agreed to privately brief members of the Senate
Judiciary Committee about the removals, and this closed briefing was
scheduled for February 14, 2007.49 49 McNulty’s written statement to the
Senate Judiciary Committee focused on reassuring the Committee that the
Department did not intend to bypass the Senate confirmation process when
it appointed Interim U.S. Attorneys under 28 U.S.C. § 546. The (Cont’d.)
66 According to McNulty, he had two preparation sessions before his
February 6 testimony with a group of senior Department employees.
According to calendar entries, the group consisted of Sampson, Goodling,
Moschella, Elston, Battle, Office of Public Affairs Director Tasia
Scolinos, Roehrkasse, EOUSA Principal Deputy Director John Nowacki,
Hertling, and two other employees from the Office of Legislative Affairs.
Moschella told us that he and Goodling were present only for a short time
at one of the sessions because they were involved with the rollout of the
Department’s budget on one of those days. McNulty said that the group
decided that he would generally say no more than what the Attorney General
had said in his January 18 testimony, which was that the Department had
considered the U.S. Attorneys’ performance before deciding to remove
them. McNulty said the group unanimously agreed that McNulty would say
that the removals were “performance-related,” but would not get into
specifics about the U.S. Attorneys’ performance. McNulty said that the
group did not discuss the specific reasons for each U.S. Attorney’s
removal during the preparation sessions. When we asked McNulty whether the
Department officials at the preparation sessions discussed how McNulty’s
using the word “performance” to describe the U.S. Attorneys might be
received, he said they did not consider it. McNulty told us that the term
“performance-related” did not sound as negative during the preparation
sessions as the U.S. Attorneys who were removed later perceived it.50
McNulty said, “[i]n the end I chose that word because I ran it by
everybody, and folks felt like that was the best way to deal with it and
so I went forward using it.” McNulty said that the group also discussed
what McNulty would say about Cummins’s removal, because of the
controversy arising out of the Attorney General’s appointment of Griffin
to be Interim U.S. Attorney. McNulty said he told the group in his
preparation sessions that he would say that during the summer of 2006
Cummins had been asked to move on to make a place for Griffin.51 written
statement also touched on the removals, noting that U.S. Attorneys serve
at the pleasure of the President and can be removed “for any reason or
for no reason.” The statement declared that the Department was committed
to having “the best possible person” installed as U.S. Attorney in
every district. The statement also stressed that U.S. Attorneys were never
removed or encouraged to resign in an effort to retaliate for, or to
interfere with or influence, a particular investigation, criminal
prosecution, or civil case. 50 In an e-mail exchange dated March 26, 2007,
between McNulty and Scolinos describing his February 6 testimony and the
preparation sessions that preceded it, McNulty wrote, “Kyle was in full
agreement with my answers . . . we all thought performance was a safe
word.” 51 According to both McNulty and Goodling, sometime during the
summer of 2006, Goodling had briefed him about Griffin replacing Cummins
as U.S. Attorney. 67 McNulty told us that he did not connect Cummins with
the other removals, and that when Goodling told him they were making an
opportunity for Griffin in the summer of 2006, the stated justification
was that Cummins had indicated he was going to move on, not that the White
House wanted to replace him with Griffin. McNulty said he also made the
distinction between Cummins’s removal and the other U.S. Attorney
removals during his preparation sessions and that no one, including
Sampson, disagreed with him or objected to his drawing that distinction.
Handwritten notes McNulty made for his February 6 testimony reflect that
the issue of White House involvement was discussed during his preparation
sessions. His notes state: “WH personnel and counsel consulted - POTUS
appointments.” However, we found no indication that there was any
discussion of the exact timing and level of the White House’s
involvement during these preparation sessions. 2. Attorney General
Gonzales’s Reaction to McNulty’s Testimony Several witnesses told us
that Attorney General Gonzales, who was traveling in Buenos Aires at the
time of McNulty’s February 6 hearing, was extremely unhappy after
learning through press accounts about McNulty’s testimony. According to
Roehrkasse, who was traveling with the Attorney General, Gonzales was
unhappy because he thought McNulty’s testimony that Cummins was not
removed for performance-related reasons was inaccurate. Roehrkasse also
said Gonzales expressed dismay that McNulty testified that the other U.S.
Attorneys were removed for performance-related reasons. Sampson told us
that he spoke to the Attorney General about McNulty’s testimony and that
Gonzales was upset because of the way McNulty had characterized Cummins’s
departure. When we asked Gonzales about McNulty’s testimony, he told us
that he was upset because he was confused, believing up to that point that
Cummins was removed because of poor performance. Gonzales said that he
later learned, likely from Sampson, that Cummins was removed to put
Griffin into the U.S. Attorney position.52 We asked Gonzales how he could
reconcile that with the fact that he had since become aware that Sampson
said he put Cummins on the list in March 2005 and January 2006 because he
thought Cummins was an underperformer. Gonzales told us that he wondered
about that as well, but said he did not have an answer for us. 52 Sampson’s
and Gonzales’s statements on this point are inconsistent, however. When
we asked Gonzales about Cummins, he told us that he believed Sampson had
corrected his original impression and told him that Cummins was not
removed for performance reasons. However, as we note in Chapter Five,
Sampson was the source for the notion that Cummins was removed because he
was an underperformer. 68 Gonzales told us that he was also unhappy
because he felt that by testifying that the U.S. Attorneys were removed
for performance-related reasons, McNulty had opened the door to a public
examination of the reasons for the removals. Tasia Scolinos, the Director
of the Department’s Office of Public Affairs, was present for both
Gonzales’s and McNulty’s preparation sessions prior to their
Congressional testimony. She told us that Gonzales had been consistently
adamant about not wanting to say publicly that the U.S. Attorneys were
removed because of their performance, even though he implied as much
during his January testimony. Scolinos said that she understood that
Gonzales was upset about McNulty’s testimony both because of Gonzales’s
concern for the reputations of the former U.S. Attorneys, and because
Gonzales thought McNulty’s testimony about Cummins was inaccurate.
According to McNulty, however, he and Gonzales never discussed the matter.
Gonzales said he did not recall discussing the issue with McNulty. 3. U.S.
Attorneys’ Reaction to McNulty’s Testimony Several of the U.S.
Attorneys who had been removed were angered by McNulty’s February 6
testimony. They were upset in part because McNulty’s testimony was the
first time they heard they had been removed for reasons related to their
performance. For example, Bogden stated in an e-mail at the time, “It
would have been one thing if performance had been the reason and they told
us as much, however, I was told differently by Battle, Mercer, and
McNulty.”53 In an e-mail on February 7, Iglesias forwarded to Charlton
and McKay a news article describing McNulty’s testimony with a notation
“Gloves will be coming off.” Shortly after McNulty’s February 6
testimony, the House Judiciary Subcommittee contacted several of the U.S.
Attorneys to invite them to testify at an upcoming hearing into the U.S.
Attorney removals, which eventually was scheduled for March 6. H. The
February 8 Letter from Several Senators On February 8, 2007, Senators
Harry Reid, Charles Schumer, Richard Durbin, and Patty Murray sent
Attorney General Gonzales a letter noting that 53 As we discuss in Chapter
Seven, Bogden said that Battle told him on December 7 only that U.S.
Attorneys serve at the pleasure of the President and it was time to step
down; Mercer told him on December 8 that the Republicans had a short,
2-year window and wanted to take advantage of it by getting future
Republican Party candidates on board as U.S. Attorneys; and McNulty told
him that neither his performance nor the performance of his office entered
into the equation. 69 McNulty’s testimony intensified their concerns
about politicization of the hiring and firing of U.S. Attorneys. The
Senators characterized as “stunning” McNulty’s testimony that
Cummins was removed for no other reason than to make way for Griffin. The
Senators requested information regarding the timing of the decision to
appoint Griffin to replace Cummins, the identity of individuals who
lobbied on behalf of Griffin’s appointment, the disparity between
Cummins being asked to resign in June 2006 when the other U.S. Attorneys
were asked to resign in December 2006, and the role Karl Rove played in
the decision to appoint Griffin. Sampson immediately began drafting a
response that was sent on February 23, which we discuss in Section K
below. I. McNulty’s February 14 Closed Briefing for the Senate Judiciary
Committee 1. Preparation for the Briefing During his February 6 testimony,
McNulty had agreed to privately brief the Senate Judiciary Committee about
the basis for each U.S. Attorney’s removal. The briefing was scheduled
for February 14. McNulty told us that he did not need much help preparing
for the closed briefing because he believed he was familiar with the
reasons for each dismissal. McNulty said his own thoughts about the fired
U.S. Attorneys seemed to be a significant piece of what would justify the
removals. However, McNulty met with senior Department leaders sometime
during the week between February 6 and February 13 to discuss the upcoming
briefing. It is unclear who was present or exactly when they met, but
e-mails and witness testimony indicate that McNulty discussed the issues
in a meeting with Sampson, Elston, Margolis, Goodling, and Moschella prior
to his February 14 briefing. According to McNulty, he did not ask the
group what he should say about the White House’s involvement. McNulty
said he also did not ask about the timing of the White House’s
involvement in the removal of U.S. Attorneys because he thought he knew
when the process began, based on when he was first notified about it in
the fall of 2006. Margolis said he recalled that the topic of the White
House’s involvement came up during the preparation session. Margolis
said McNulty stated that if asked, he would say that the Department came
up with a list of U.S. Attorneys to remove and the White House was
involved only to sign off on the proposal. He said no one at the session
corrected McNulty or disclosed the level of the White House’s
involvement in the removals. During our interview, Margolis said that in
hindsight he could have pointed out that the White House had proposed
firing all the U.S. Attorneys early on in the President’s second term.
However, Margolis told us that he did not believe that McNulty’s
statement was 70 inaccurate because he knew that the Department had
assembled the list. Margolis said he also mistakenly assumed that McNulty
knew as much as he did about the White House’s involvement. Sampson said
that during McNulty’s preparation session they did not specifically
discuss anything about the White House’s role beyond Cummins’s
replacement with Griffin. Sampson said the focus of the preparation
session was on other subjects, such as why each of the U.S. Attorneys had
been replaced and how to respond to concerns that the Department intended
to use the interim appointment authority to evade the Senate confirmation
process. McNulty asked Goodling for information for the briefing and gave
her guidance on the type of information he needed, such as what the
various issues were for each removed U.S. Attorney, facts about the
district and the U.S. Attorney’s term, and information about the EARS
evaluations for each district. According to witnesses and documents,
Goodling made handwritten notes of what the participants said during the
preparation session concerning the basis for each of the removals, and she
and Nowacki put that information into a typed chart for McNulty to use
during the congressional briefing.54 Goodling’s notes indicate that the
group discussed what McNulty should say about each removed U.S. Attorney.
In a category entitled “Leadership Assessment” on the chart Goodling
created, she listed parts of what the group discussed that ostensibly
served as justification for each U.S. Attorney’s removal. The notes and
the chart, which was drafted on February 12, 2007, appear to be the first
time that the Department actually listed the specific reasons alleged to
be the basis for each removal. 54 Goodling, the only person other than
Sampson involved in the preparation session who knew the extent and the
history of the White House’s involvement in the U.S. Attorney removals
initiative, did not discuss the issue in her immunized testimony before
the House Judiciary Committee beyond her opening statement that she became
aware of the initiative in 2005. Goodling also stated in her testimony
that she believed McNulty had greater knowledge than he expressed in his
testimony about the history of the White House’s involvement because she
had briefed him about Griffin during the summer of 2006. However, on June
21, 2007, in testimony before the House Subcommittee on the Judiciary,
McNulty said that while he was aware in the summer of 2006 that Griffin
was going to replace Cummins, he was not aware that Griffin came to the
Department’s attention through the White House. McNulty stated that
while he had known for months that “Cummins was asked to move over so
that Mr. Griffin would have a chance . . . ” he did not know exactly how
Griffin came to the Department’s attention, and he also noted that in
Goodling’s testimony before Congress, she said she was not particularly
aware of how Griffin came to the Department’s attention. McNulty said,
“I just didn’t know the specifics of how he came to be recommended to
us. We later learned that Ms. Miers contacted Kyle Sampson, and that’s
the - the way.” As previously noted, Goodling declined our request for
an interview, so we were not able to question her concerning McNulty’s
statement about his knowledge of the White House’s involvement in the
removal of the U.S. Attorneys. 71 2. McNulty’s Briefing for the Senate
Judiciary Committee On February 14, 2007, McNulty briefed members of the
Senate Judiciary Committee in a closed session concerning the reasons for
the removals. Moschella, Hertling, and Nancy Scott-Finan of the Department’s
Office of Legislative Affairs were also present from the Department.
Goodling was also supposed to attend the briefing, but in her
Congressional testimony, she said McNulty instructed her to remain outside
the room in order to discourage the Senators from asking questions about
the White House’s role in the removals. McNulty said he did not recall
instructing Goodling to remain outside, but he said he was concerned that
Goodling’s presence would make the removal process seem more “political”
given the fact that Goodling’s position at the Department was uniquely
associated with the Department’s political appointments. The briefing
was not transcribed, although Scott-Finan took notes. According to those
notes, McNulty began the briefing by stating that the U.S. Attorneys had
not been told the reasons for their removal, and he requested that the
briefing remain confidential. McNulty also said that some of the issues
with certain U.S. Attorneys predated his time at the Department. McNulty
stressed at the briefing that the Department did not have candidates
outside of the U.S. Attorneys’ Offices waiting to be appointed Interim
U.S. Attorneys. According to Hertling, Senator Schumer asked McNulty if
the Department would share the EARS evaluations with the Judiciary
Committee because Sampson had referenced them as something that the
Department’s senior management had considered as part of the review
process. Scott- Finan’s notes indicate that McNulty said that the EARS
evaluations were mostly positive, there were no misconduct issues
underlying the removals, and that the EARS evaluations were designed to
review office management rather than how the U.S. Attorneys dealt with
Main Justice. According to Scott-Finan’s notes, McNulty stated that he
had been consulted about the process of identifying U.S. Attorneys about
whom the Department had serious questions and was considering the
possibility of asking them to resign. McNulty stated that the process
began within the Department in September or October 2006. McNulty also
stated that the Department had sent the removal list to the White House
Counsel’s Office in October 2006 and asked if they had any objection to
the names, and they voiced no objections. McNulty then described the
specific reasons for each U.S. Attorney’s removal. With respect to the
reasons for individual removals, Scott-Finan’s notes indicate that
McNulty said the following about the U.S. Attorneys at the closed
briefing: 72 • Bogden lacked energy and leadership, and was “good on
guns but not good on obscenity cases.” • McKay was “enthusiastic but
temperamental,” had made promises that the Department could not support
regarding information sharing, and was resistant to Department leadership.
• Lam’s statistics for gun prosecutions placed her close to the bottom
of all the U.S. Attorneys’ offices, and the Department had also
discussed with Lam her poor record on immigration cases. McNulty
acknowledged that no one followed up to see if she had changed her
handling of gun and immigration cases before she was asked to resign. •
Ryan’s office was the subject of a special EARS evaluation because the
Department was concerned about his failures as a manager. • Charlton was
asked to resign because of his insubordination in resisting the Department’s
“way of doing business” in a death penalty case and his poor judgment
in attempting to establish a rule that the FBI should tape-record
interrogations. • Iglesias was underperforming, was an absentee landlord
who was “physically away a fair amount,” and the Department had
received congressional complaints about him.55 • Another U.S. Attorney [Chiara]
was removed because of serious morale issues in the office and a loss of
confidence in her leadership.56 • Cummins was not removed for
performance reasons, and the Department had always intended to send
Griffin through the nomination process. Scott-Finan’s notes reflect that
McNulty was asked several follow-up questions regarding Cummins. In
response to a question concerning why the First Assistant, who was on
maternity leave, was passed over for the Interim U.S. Attorney position,
McNulty said that she was not passed over and that “Griffin was our guy
all along.” McNulty said that Griffin’s name came up in the spring of
2006 as a replacement for Cummins, who had said publicly that he was
thinking of moving on. Senator Schumer asked how it happened that 55 As
discussed in more detail in Chapter Six of this report concerning Iglesias’s
removal, McNulty told us he purposely did not mention specific complaints
from Senator Domenici during the briefing because he did not want to put
the Senator “in a bad light or a difficult position.” 56 E-mail
records show that McNulty did not mention Chiara by name because she had
not yet announced her resignation publicly and he was trying to find a
position for her in the Department. 73 Griffin was recommended to replace
Cummins, and McNulty responded that Harriet Miers had called Sampson to
determine whether the Department could find a place for Griffin. Senator
Schumer asked McNulty whether Karl Rove was the instigator of Griffin’s
replacement of Cummins. McNulty responded that he “wouldn’t put it
that way” and said that it was rare for the White House to make U.S.
Attorney recommendations without getting the names from home state members
of Congress or other elected political officials. McNulty’s statement
during the closed briefing that Miers intervened on behalf of Griffin’s
appointment appeared in a New York Times article on February 15, the day
after the briefing. That same day, Associate White House Counsel Oprison
sent an e-mail to Goodling asking her about the statement attributed to
McNulty. Oprison told us that he sent the e-mail because he did not know
that Miers had asked Sampson if the Department could find a place for
Griffin. Oprison said he could not recall whether Goodling was able to
supply any information about Miers’s involvement in finding a position
for Griffin. Oprison said that when he discussed the New York Times
article with Deputy White House Counsel Kelley later that morning, Kelley
seemed as surprised as Oprison, and Oprison said Kelley’s reaction led
him to believe that the statement about Miers’s involvement was
inaccurate. However, Oprison said he did not recall any further discussion
about Miers’s involvement in the appointment of Griffin. J. Elston’s
Alleged Threat to Cummins 1. Cummins’s Quote in The Washington Post
According to Cummins, several of the removed U.S. Attorneys learned about
the content of McNulty’s closed briefing from various Senate staffers
shortly after the briefing. On February 18, 2007, a Washington Post
article stated that the removed U.S. Attorneys were enraged by McNulty’s
hearing testimony and comments at the closed briefing, and felt betrayed
because they had stayed silent about their removals. The article also
noted that nearly all of the removed U.S. Attorneys had positive job
evaluations, contrary to McNulty’s public statements that they were
dismissed for “poor performance.” Cummins was quoted in the newspaper
article as stating that Justice Department officials had “crossed a line”
by publicly criticizing the performance of the U.S. Attorneys. The article
quoted Cummins: They’re entitled to make these changes for any reason or
for no reason or even for an idiotic reason, but if they are trying to
suggest that people have inferior performance to hide whatever 74 their
true agenda is, that is wrong. They should retract those statements. In an
e-mail on February 18, Bradley Schlozman, at the time the Interim U.S.
Attorney for the Western District of Missouri, forwarded a copy of the
Washington Post article to Elston. Schlozman’s e-mail stated, “Does
Cummins really feel it’s in his interest to bash the AG like that?! . .
. His public criticisms do not surprise me in the least. But it’s no
less offensive. . . .” Later that evening, Elston responded, “This is
going to get ugly, I’m afraid.” 2. Elston’s Telephone Call to
Cummins a. Cummins’s Account of the Telephone Call On February 20, 2007,
Elston telephoned Cummins to discuss the Washington Post article in which
Cummins was quoted. Elston said he made that call on his own initiative
because he was upset at what Cummins was quoted as saying in the article
and thought it was inconsistent with the tone of his and Cummins’s
previous conversations. According to both Cummins and Elston, during
January and February they had had several cordial conversations about
whether Cummins should accept congressional invitations to testify and
whether Cummins would publicly support Griffin’s nomination. Cummins
said that because McNulty had testified that Cummins was not removed for
performance-related reasons but rather to give Griffin a chance to serve,
Cummins initially felt he had no problems with the Department. Cummins
told us that initially he was hoping the Department would see he was still
“on the team” in the event a judgeship opened up in the Eastern
District of Arkansas. Cummins said that most of the removed U.S. Attorneys
had a conference call to discuss congressional invitations to testify and
to compare notes concerning their removals in light of McNulty’s
testimony and his comments at the closed briefing. Cummins said that after
learning the circumstances of their removals, he began to have concerns
because he felt that Department management had not treated the U.S.
Attorneys fairly. Cummins said that Elston began their February 20
telephone conversation by questioning Cummins about the quote attributed
to him in the February 18 Washington Post article. Cummins said Elston “came
on strong” at the beginning of the conversation, but when Cummins asked
Elston if Cummins’s quote was untrue, Elston backed down. According to
Cummins, Elston expressed concern that Cummins’s remarks were
inconsistent with Cummins’s previous expression of support for the
Department. Cummins said that during their discussion, Elston described
himself as being part of a group that felt the Department had been too
restrained and should publicly explain why the U.S. Attorneys were
removed. According to Cummins, Elston said something to the effect that if
the U.S. Attorneys kept 75 commenting to the media about their removals,
the Department would have no choice but to publicly disclose the reasons
for their removals. Cummins said Elston implied that there was a body of
information that no one had access to concerning the U.S. Attorneys that
justified their removals. Cummins told us that Elston might have made that
comment out of concern for the U.S. Attorneys as a prediction of how the
dynamics would play out. However, Cummins said he thought Elston was
clearly implying that if the U.S. Attorneys kept causing trouble, the
Department would have to reveal embarrassing information about them to
defend itself. Cummins told us that he believed Elston knew Cummins would
pass the message along to the other U.S. Attorneys. Cummins said he did
not believe Elston was trying to stop the U.S. Attorneys from making
public comments, but was relaying the message that if they kept talking to
the media it was likely that the Department might have to publicly reveal
information concerning why the U.S. Attorneys were removed. b. Cummins’s
E-mail to Bogden, Charlton, Iglesias, Lam, and McKay about the Telephone
Call Shortly after his conversation with Elston on February 20, Cummins
sent an e-mail to Bogden, Charlton, Iglesias, Lam, and McKay describing
his conversation with Elston. Cummins informed them that the essence of
Elston’s message was that the Department believed it was taking “unnecessary
flak to avoid trashing” the U.S. Attorneys. Cummins wrote that Elston
implied that if the U.S. Attorneys continued to talk to the media or to
organize behindthe- scenes congressional pressure, the Department would be
forced to offer public criticisms of the U.S. Attorneys in order to defend
its actions more fully. Cummins wrote in the e-mail: “I was tempted to
challenge him and say something movie-like such as ‘are you threatening
ME???’ but instead I kind of shrugged it off.” Cummins also wrote in
the e-mail that he had made it a point to tell Elston that the U.S.
Attorneys had turned down multiple invitations to testify before Congress,
and that Elston had responded that the Department would see such testimony
as a major escalation of the conflict “meriting some unspecified
retaliation.” Cummins wrote that it sounded like a threat that the
Department would make public McNulty’s closed presentation to the Senate
Judiciary Committee. Cummins noted that he did not want to overstate the
threatening undercurrent in his conversation with Elston, “but the
message was clearly there and you should be aware before you speak to the
press again if you choose to do that.”57 57 At a subsequent
congressional hearing, Cummins testified that this conversation was a
congenial phone call and he did not directly characterize Elston’s
remarks as a threat. (Cont’d.) 76 c. Elston’s Account of the Telephone
Call Elston told congressional investigators that he had called Cummins on
February 20 to discuss the statement attributed to Cummins in the
Washington Post article that the Department had crossed a line by publicly
criticizing the performance of the U.S. Attorneys who had been removed.
Elston said Cummins denied telling the reporter that the Department had
crossed a line, noting that the phrase was not in quotes, and Elston said
he took Cummins at his word. Elston said he believed he and Cummins had
developed a good rapport and the statement attributed to Cummins in the
newspaper article seemed out of character with their previous
conversations, during which Cummins had expressed his gratitude for
McNulty’s public testimony distinguishing Cummins from the other U.S.
Attorneys. Elston said he believed the Department had made a major effort
not to publicly disclose the reasons for asking for the U.S. Attorneys’
resignations, but the reasons had been leaked to the media within days of
McNulty’s closed briefing. Elston said that by the time he spoke with
Cummins, he realized that it would likely be necessary for the Department
to disclose publicly the reasons for the removals. Elston said he believed
Cummins misinterpreted his remarks, which he said were more along the
lines of saying that it was a shame that the reasons for the U.S.
Attorneys’ removals were being discussed in the media because it was
tarnishing the Department as well as the reputations of the individual
U.S. Attorneys. Elston also asserted that it did not make sense that he
threatened Cummins when McNulty had already stated that Cummins was in a
different position than the other U.S. Attorneys. According to Elston, the
Department had no derogatory information with which to threaten Cummins.
Elston said he did not recall the issue of congressional testimony arising
during his February 20 conversation with Cummins. Elston said that if he
and Cummins had discussed the issue, he would have reiterated that the
Department would take no position on whether or not the U.S. Attorneys
should testify. Elston said he never intended to send Cummins or anybody
else a message. Elston stated that he had no reason to believe Cummins was
in contact with the other U.S. Attorneys, and he said he did not know that
shortly thereafter Cummins sent an e-mail to the other U.S. Attorneys
describing their conversation. Rather, he said “[i]t might have been a
threat, it might have been a warning; it might have been an observation, a
prediction . . . [or] friendly advice.” 77 K. The Department’s
Response to the Senators’ Letter As previously noted, on February 8,
2007, the Department received a letter from Senators Reid, Schumer,
Durbin, and Murray requesting information concerning Cummins’s removal
and Griffin’s appointment as his replacement. Sampson drafted the
Department’s response for Acting OLA Assistant Attorney General Hertling’s
signature, and Sampson circulated the draft to others in the Department
and the White House for comment.58 The letter was reviewed and edited by
Associate White House Counsel Oprison and returned to Sampson, who had the
final sign-off on the language.59 On February 23, the Department sent its
response to the Senators, signed by Hertling. The response stated that
none of the U.S. Attorneys were removed in an attempt to influence an
ongoing investigation. The letter described why the replacement of Cummins
with Griffin was appropriate, and stated that “it was well-known, as
early as December 2004, that Mr. Cummins intended to leave the office and
seek employment in the private sector.” The letter also stated that the
decision to replace Cummins with Griffin was “first contemplated in the
spring or summer of 2006, [and] the final decision to appoint Griffin as
interim U.S. Attorney was made on or about December 15, 2006, after
Attorney General Gonzales had spoken to Senator Pryor.” The letter also
asserted that “The Department is not aware of Karl Rove playing any role
in the decision to appoint Mr. Griffin.” We found these statements to be
misleading. As we fully describe in Chapter Five of this report concerning
Cummins’s removal, the statement that it was “well known” in
December 2004 that Cummins intended to leave office was misleading. The
statement concerning the timing of Griffin’s appointment and the
statement disclaiming Rove’s involvement in Griffin’s appointment were
also misleading and they did not accurately portray what Sampson knew
about those issues.60 58 Department officials who received a draft of the
letter for review included McNulty, Elston, Goodling, Hertling, Moschella,
and Scolinos. Sampson asked Goodling to verify certain factual assertions
he had made concerning Griffin’s appointment. 59 At the time, Oprison
had been an Associate White House Counsel for 4 months and lacked
first-hand knowledge of the events at issue. In an e-mail to Sampson on
February 23, 2007, Oprison attached the letter with “slight revisions,”
along with the message that “Fred [Fielding], as I, want to ensure that
it is absolutely consistent with the facts and that it does not add to the
controversy surrounding this issue.” 60 On March 28, 2007, the
Department wrote another letter informing Senators Leahy and Schumer that
its review of documents revealed that representations in Hertling’s
February 23 letter were inaccurate. 78 L. Events in March 2007 1. March 3
Washington Post Article On March 3, 2007, the Washington Post published an
article about the U.S. Attorney removals that included information
provided by Brian Roehrkasse from the Department’s Office of Public
Affairs and McNulty. The article contained several misstatements: “the
list of prosecutors was assembled last fall;” the White House “did not
encourage the dismissals;” and “the seven fired prosecutors were first
identified by the Department’s senior leadership shortly before the
November elections.” According to the article, the Department had backed
away from arguing that the decision to remove the U.S. Attorneys was “performance-related.”
The article stated that Department officials acknowledged that the
removals were undertaken primarily because the Administration was unhappy
with the prosecutors’ policy decisions. Later that same day, Sampson
e-mailed Roehrkasse about the article and wrote: “Great work Brian.
Kudos to you and the DAG.” McNulty acknowledged that he talked to the
two reporters who wrote the article and said he provided the information
as he knew it at the time. During his interview with congressional
investigators, McNulty stated that he did not know for certain that the
statement that the White House “did not encourage the dismissals” was
inaccurate, because the word “encourage” was a general term. In
addition, McNulty said he could not say that the statements concerning
when the list was assembled and when the Department’s “senior
leadership” identified the U.S. Attorneys who would be removed were
incorrect because that was when he first learned about the list of U.S.
Attorneys to be removed. Sampson also told congressional investigators
that he did not think the statements in the article were inaccurate
because, in his mind, the action phase of the project did take place in
the fall of 2006. He characterized the earlier lists as “a highly
deliberative sort of thinking process.” Sampson admitted that there was
encouragement from the White House to come up with a list of U.S.
Attorneys to be fired, but he described the White House’s involvement as
“episodic.” 2. House and Senate Hearings In early February 2007, the
Commercial and Administrative Law Subcommittee of the House Judiciary
Committee contacted the Department to request that McNulty testify at an
upcoming hearing concerning the Attorney General’s authority to make
interim appointments of U.S. Attorneys. McNulty directed that Principal
Associate Deputy Attorney General Moschella appear as 79 the Department’s
witness at the hearing and at a staff briefing to be held prior to the
hearing. The hearing was scheduled for March 6, 2007, and the closed staff
briefing was scheduled for March 1. On February 28, 2007, Cummins sent an
e-mail to EOUSA Director Battle informing him that the House Subcommittee
intended to subpoena Cummins and several of the other dismissed U.S.
Attorneys to testify at the March 6 hearing. Later that day, Hertling
informed Sampson, Goodling, Moschella, and Elston that the Subcommittee
would subpoena Lam, McKay, and Iglesias. 3. Cummins’s February 20 E-mail
Surfaces Both the Senate Judiciary Committee and the House Judiciary
Subcommittee had scheduled hearings for March 6 on the removals of U.S.
Attorneys. Cummins, Lam, Iglesias, and McKay were scheduled to testify
before the Senate Judiciary Committee in the morning and before the House
Subcommittee in the afternoon. Moschella was scheduled to testify before
the House Subcommittee in the afternoon. McKay told us he was so offended
by Elston’s February 20 “warning” to Cummins that the U.S. Attorneys
should not testify that he related the incident to Senate staff when they
interviewed him prior to his appearance before the Judiciary Committee.
McKay’s remarks made their way to a reporter, who called the Department
for comment before the hearing. E-mails show that on Sunday, March 4,
Roehrkasse told Elston he needed to speak with him about calls Elston had
made in late February to some of the U.S. Attorneys. Roehrkasse told us
that Elston informed him he did not call any of the U.S. Attorneys in
February, with the exception of Chiara. Elston noted that he had talked to
McKay and Charlton prior to the Attorney General’s congressional hearing
in January to inform them that the Attorney General was not going to
mention their names or discuss their offices. Roehrkasse said that when he
asked Elston if he had any other conversations with any of the removed
U.S. Attorneys, Elston said he had talked to Cummins in February when
Cummins asked him if the Department had any position on whether he should
accept congressional invitations to testify. Roehrkasse said Elston denied
telling Cummins he should or should not testify, and Elston denied
threatening Cummins. Roehrkasse said that because he did not understand
what the reporter was referring to, both he and Elston called the
reporter. According to Roehrkasse, the conversation with the reporter was
very hostile, and the reporter continued to insist that Elston had
threatened retaliation if the U.S. Attorneys kept talking publicly about
their dismissals. Roehrkasse said that the reporter refused to identify
her source, and Elston 80 insisted that he had no conversation with any
U.S. Attorney in which he discussed what should or should not be said
about their removals. Elston also stated to the reporter that he had
talked to Cummins, but only in the context of telling him that the
Department had no opinion on whether or not he should testify. Roehrkasse
said that when the reporter said she was still going to write the story,
he questioned how she could do so when an official from the Department had
contradicted on the record an anonymous source’s vague allegation of a
threatening telephone conversation. Roehrkasse said he was so upset that
he called the reporter’s editor to complain, and the editor agreed to
hold the story. Cummins told us that a reporter contacted him on March 5
and told him that a source had given her information about Cummins’s
conversation with Elston, and the reporter was going to write a story
about it for the following day. Cummins said that the reporter told him
she had contacted the Department earlier to ask for comment, and
Roehrkasse had flatly denied that the call between Cummins and Elston took
place. According to Cummins, the reporter told him that Roehrkasse
pressured the reporter to kill the story, calling the reporting “irresponsible.”
Cummins said that the reporter also told him that she had talked to Elston,
who denied that the call took place. According to Cummins, the reporter
told him that Elston said Cummins was a liar and tended to exaggerate.
Cummins told us that “that did not sit well with me.” He told the
reporter about the February 20 e-mail to McKay, Lam, Iglesias, Bogden, and
Charlton describing his conversation with Elston. According to e-mails,
toward the end of the day on March 5 the reporter informed Roehrkasse that
she was going to write the story, and Roehrkasse told Elston he wanted to
talk with him “about February 20.” Elston again denied that he had
spoken with any of the U.S. Attorneys around February 20, with the
exception of Chiara.61 Elston wrote Roehrkasse, “All of my calls
occurred before the USA announced his/her resignation. Once the person
announced, I had no further conversations with them.” Roehrkasse said at
that point he was unaware of Cummins’s February 20 e-mail to the U.S.
Attorneys describing his conversation with Elston. Accordingly, Roehrkasse
said he provided the reporter with the following quote: “It is
unfortunate that the press would choose to run an 61 According to Elston,
he had “many” conversations with Chiara in January and February
because she was seeking additional time before she resigned. 81 allegation
from an anonymous source from a conversation that never took place.” The
reporter’s story appeared on Tuesday, March 6 and cited interviews with
two unnamed former U.S. Attorneys.62 The story stated that Roehrkasse had
criticized the publication for running the story. The story also noted
that while the U.S. Attorney who received the call said he regarded the
tone of the conversation as congenial and not intimidating, he had
informed the other removed U.S. Attorneys about the call and one of them
had told the reporter he considered Elston’s remarks to be a threat.
Cummins, McKay, Lam, and Iglesias testified before the Senate Judiciary
Committee on the morning of March 6. During the testimony, Senator Schumer
asked McKay whether he had received any communication from the Department
designed to dissuade him from testifying or making public comments. McKay
referred Schumer to Cummins, who produced his February 20 e-mail and
related the story of his conversation with Elston, adding that he did not
necessarily consider Elston’s remarks to be a threat. A Department
official attending the hearing immediately faxed a copy of the email to
Moschella and Elston, noting that the e-mail would likely be raised during
Moschella’s hearing before the House Judiciary Subcommittee that
afternoon. The Department issued a public statement that day which
described Elston’s February 20 conversation with Cummins as “private
and collegial” and stated that it was “somehow being twisted into a
perceived threat by former disgruntled employees grandstanding before
Congress . . . .” The statement also denied that Elston told any U.S.
Attorneys what they should and should not say about their dismissals. The
statement further noted that “any suggestion that such a conversation
took place is ridiculous and not based on fact.” When we asked
Roehrkasse about the Department’s public statement describing as “ridiculous
and not based on fact” that such a conversation took place, he told us
that he still believed it was accurate. However, he said he regretted
saying that the U.S. Attorneys were “grandstanding before Congress.”
He said he could have used a different phrase than “disgruntled
employees,” but he said that at the time he thought that Cummins had
taken liberties describing his conversation with Elston. Roehrkasse said
that even after he reviewed Cummins’s e-mail he did not question Elston’s
account of events because Cummins had conceded during his Senate testimony
that he did not perceive the conversation as a threat. 62 See Marisa
Taylor, McClatchy Newspapers, U.S. Attorney Worried ‘Gloves Would Come
Off’ Over Criticism of Ouster, March 6, 2007. 82 After learning about
Cummins’s statements at the hearing, Elston immediately drafted a letter
to Senator Schumer in which he noted that he was “shocked and baffled”
by Cummins’s February 20 e-mail. Elston wrote that he did not understand
how anything he told Cummins could have been construed as a threat. Elston
wrote that he never tried to suggest to Cummins what he or the other U.S.
Attorneys should or should not say about their resignations. As discussed
above, Elston denied to us making any remarks to Cummins that could have
been construed as a threat. Elston also said it was inconsistent for
Cummins to imply that Elston’s remarks conveyed a threat, since Cummins
had consistently said how grateful he was that McNulty had separated
Cummins from the other U.S. Attorneys when McNulty testified about the
removals. 4. Moschella’s Testimony Before the House Judiciary
Subcommittee a. Preparation Sessions Moschella had two preparation
sessions prior to his closed congressional briefing on March 1 and his
testimony on March 6 before the House Judiciary Subcommittee. The sessions
were attended by Sampson, Goodling, Nowacki, and Roehrkasse.63 According
to Moschella, the focus of the sessions was primarily on the various
issues surrounding the Attorney General’s interim appointment authority,
which Congress was seeking to repeal at the time. Moschella, who had not
been involved in the process leading to the removal of the U.S. Attorneys,
said he first became familiar with the reasons underlying the U.S.
Attorney removals by attending McNulty’s closed congressional briefing.
Moschella said he prepared for his testimony with the same materials
McNulty had used for his briefing.64 b. Discussion in Preparation Sessions
About White House Involvement Moschella told us that during one of his
preparation sessions someone asked what he would say if he was asked when
the White House became involved in the removals. Moschella said he
answered the same way he had heard McNulty answer the question in McNulty’s
February 14 briefing before the Senate Judiciary Committee: the White
House became involved in the fall 63 According to Elston, he was invited
but did not attend these preparation sessions. 64 Moschella asked Goodling
to re-format the chart she had developed for McNulty detailing the reasons
for each U.S. Attorney’s removal to make it more user-friendly. 83 of
2006, primarily to sign off on the proposal. Moschella said he could not
recall who asked the question. The group that prepared Moschella for his
Congressional testimony included Sampson, Goodling, Hertling, Nowacki,
Scott-Finan, and Roehrkasse.65 He told us that although neither Sampson
nor Goodling ever affirmatively represented that the White House’s
involvement with the U.S. Attorney removals began in the fall of 2006,
they should have explained that the White House had been involved in the
matter earlier. Moschella said no one corrected his misunderstanding
concerning the timing or level of the White House’s involvement in the
removals during his preparation sessions. Moschella also said that the
timing of the origin of the removal process was not discussed in his
preparation sessions. He said he had heard McNulty say that the process of
removing U.S. Attorneys began during the fall of 2006, and Moschella
believed that to be the case until he learned differently a few days after
his testimony. Roehrkasse confirmed to us that the issue of the White
House’s involvement in the U.S. Attorney removals was discussed during
the preparation sessions for Moschella’s testimony. Although he said he
could not recall specifically what was said, Roehrkasse told us that
Sampson and Goodling led him and Moschella to believe that the White House’s
involvement was much less than it actually was. According to Roehrkasse,
Sampson advised Moschella about what to say about this issue, although the
advice focused on the level of the White House’s involvement rather than
the timing of its involvement. Roehrkasse said he recalled Sampson
mentioning that the White House had clearly signed off on the proposal at
the end of the process. Sampson told us he believed that questions
concerning the specific timing of the removal process and the nature of
the White House’s involvement did not arise in the preparation sessions.
He said that he was not focused on the historical background of the
process at the time. Sampson said that his perception at the time of the
preparation sessions was that the “action phase” of the process took
place in the fall of 2006. Sampson said that the preparation sessions were
focused on the salient questions at the time, which were whether the U.S.
Attorneys were removed in order to interfere with a particular prosecution
and whether the administration intended to bypass the Senate confirmation
process. 65 Of that group, only Sampson and Goodling had full knowledge at
the time concerning the removals and the White House’s involvement in
the process. 84 c. March 5 Meeting at the White House to Discuss Moschella’s
Testimony At this time, e-mails between Sampson and White House officials
show that the White House was concerned that the Department had not
adequately explained why the U.S. Attorney removals were justified. Until
the day of Moschella’s public testimony, which occurred on March 6, the
Department had not publicly described its reason for requesting the
resignation of each U.S. Attorney. On March 5, Deputy White House Counsel
Kelley called a meeting with Sampson, McNulty, Moschella, Elston, Hertling,
Scolinos, Roehrkasse, and Battle. White House Counsel Fred Fielding,
Associate White House Counsel Michael Scudder, and Karl Rove also attended
the meeting. Kelley’s e-mail stated that the purpose of the meeting was
to discuss the Administration’s position on all aspects of the U.S.
Attorney removals issue, including what the Department would say about the
removals and the Attorney General’s interim appointment authority.
According to several witnesses, Rove came in to the meeting for only a few
minutes and then left. Battle said Rove spoke at the meeting but he could
not recall what he said. McNulty said that he could not specifically
recall either, but thought Rove said something to the effect that
Moschella’s testimony should explain why the U.S. Attorneys were
removed. None of the witnesses said they could recall specifically what
Rove said at the meeting, although all agree that the discussion generally
centered on what Moschella should say about the reasons for each U.S.
Attorney’s removal. According to Moschella, there was significant
discussion at the meeting about whether to publicly discuss the specific
reasons for the removals. Moschella said that Attorney General Gonzales
had expressed concern about damaging the reputations of the U.S.
Attorneys, and no one at the meeting wanted to say anything derogatory
about them. Moschella told us that, nevertheless, the consensus in the
meeting was that he should publicly state the reasons for each U.S.
Attorney’s removal. McNulty said the primary concern White House
officials expressed at the meeting was that because the U.S. Attorneys
were going to testify and might suggest that they were removed for
improper reasons, Moschella should specify the Department’s
justification for each U.S. Attorney’s removal. Sampson said that in
addition to discussing what Moschella should say in his testimony about
the removals, the group discussed what Moschella would say about the
pending legislation to repeal the Attorney General’s interim appointment
authority. According to Sampson, the Department had submitted written
testimony to the White House for clearance through the 85 Office of
Management and Budget which said that the Administration opposed the
repeal. Hertling told us that the purpose of the White House meeting was
to discuss the proposed legislation as well as what Moschella would say
about the removals. Hertling said that the White House Communications
Office wanted to know what Moschella would say about the removals in order
to prepare for press inquiries resulting from his testimony. Hertling said
it was not a meeting to prepare Moschella for his testimony but was
instead a briefing for the White House about what Moschella planned to
say. Sampson and Moschella said that the White House and the Department
also decided at the meeting that the Administration should not oppose the
repeal of the Attorney General’s authority to appoint Interim U.S.
Attorneys. According to Moschella, although the White House was “sympathetic”
from a policy standpoint to the Department’s belief that the Attorney
General’s power to appoint Interim U.S. Attorneys was justified, the
White House was of the opinion, given the bad press and the political
atmosphere, that the Administration should not oppose the repeal. d.
Moschella’s Testimony Moschella testified before the House Judiciary
Subcommittee on the afternoon of March 6, just prior to the testimony of
former U.S. Attorneys Lam, McKay, Iglesias, Cummins, Charlton, and Bogden,
who were present when Moschella testified.66 Moschella began his testimony
by stating that each of the U.S. Attorneys was removed “for reasons
related to policy, priorities and management - what has been broadly
referred to as ‘performance-related reasons.’” Moschella then
briefly discussed the justifications for the removals. Moschella did not
mention Chiara and Ryan by name because they were not present at the
hearing and had not publicly acknowledged that the Department had asked
them to resign along with the others. Moschella instead stated that two
unnamed U.S. Attorneys were removed because they had problems managing
their districts. Moschella testified that Lam was removed because her gun
prosecution numbers were “at the bottom of the list” and her
immigration prosecution numbers “didn’t stack up.” Moschella stated
that the Department “had policy differences” with McKay and was “concerned
with the manner in which he went 66 Several days prior to his hearing,
Moschella provided a closed, more detailed briefing for members and staff
of the House Subcommittee, similar to the briefing McNulty had given the
Senate Judiciary Committee. According to Moschella, the briefing concluded
before he had discussed all of the U.S. Attorneys, and he finished the
briefing by telephone shortly before his public testimony. 86 about
advocating particular policies,” including McKay’s “advoca[cy] for a
particular [information sharing] system.” Moschella testified that
Cummins was removed not for performancerelated reasons but to give Griffin
a chance to serve. Citing the importance of Bogden’s district of Las
Vegas, Moschella said that “there was no particular deficiency,” but
there was an interest in “seeing renewed energy and renewed vigor in
that office, really taking it to the next level.” Moschella said that
the Department had the general sense that Iglesias’s district was “in
need of greater leadership,” and that Iglesias “had delegated to his
first assistant the overall running of the office.” Moschella stated
that Charlton had instituted a policy in his district, without first
obtaining Department approval, that required the FBI to tape-record
interrogations, and he had refused to abide by the Attorney General’s
decision to seek the death penalty in a particular case. Moschella’s
testimony was the first time the U.S. Attorneys heard from the Department
the alleged reasons for their removals. Moschella testified incorrectly
that the process to remove the U.S. Attorneys had begun in early October
2006. Moschella stated that the White House eventually became involved in
the removals, but he mistakenly implied that it was only to sign off on
the proposal because the U.S. Attorneys were Presidential appointees.
Moschella told us he based his testimony on what he had heard McNulty say
in his public testimony and during his closed briefing before the Senate
Judiciary Committee. Lam, Iglesias, McKay, Charlton, Cummins, and Bogden
testified immediately following Moschella. Among other things, Iglesias
challenged Moschella’s assertion that he was dismissed because the
office “lacked leadership,” and he cited statistics showing
improvement in the number and types of prosecutions and convictions in his
office. Bogden said that he resented Moschella’s implication that he was
asked to step down “so new blood could be put in” to the position.
Bogden noted that he was very proud of what his staff had accomplished
during his tenure as U.S. Attorney. Charlton testified about the irony of
Moschella’s statement that he was removed because he had implemented the
taping policy in his district in February 2006, because he had offered to
resign at the time rather than to rescind the policy. Cummins testified
that the Department “horribly mismanaged” the U.S. Attorney removals.
Cummins stated that Moschella had suggested that the U.S. Attorneys had
done something wrong but the Department had not told the U.S. Attorneys
why they were removed. McKay disputed Moschella’s assertion that he was
removed because of the way he advocated the information sharing system,
and said that all of his work on the program had been authorized by former
Deputy Attorney General Comey. Lam responded to Moschella’s statement
regarding her immigration and gun prosecution statistics by stating 87
that her emphasis in immigration cases was on tackling larger cases, and
that gun prosecutions were being handled “extremely responsibly” by
the local District Attorney’s Office. Iglesias testified that he
believed he was forced out as U.S. Attorney for the District of New Mexico
because he failed to respond to political pressure to indict a public
corruption case against a Democratic official before the November 2006
election. In his testimony, Iglesias revealed that New Mexico
Representative Heather Wilson and Senator Pete Domenici separately
telephoned him in October 2006 to ask about the status of a pending public
corruption matter. Iglesias said that in both calls he believed he was
being pressured to bring an indictment before the November election. M.
Attorney General Gonzales’s March 7 Op-Ed Article Moschella’s
testimony increased concerns about the reasons why the U.S. Attorneys were
removed. Sometime during the first week of March 2007, a USA Today
reporter told the Department’s Office of Public Affairs that the
newspaper would soon editorialize on the U.S. Attorney removals, and
offered the Department the opportunity to provide an “opposing view
essay.” Public Affairs Director Scolinos recommended to McNulty,
Sampson, Goodling, and Moschella that the Department submit an editorial
under Gonzales’s name so that it would “pack some punch.” Sampson
agreed with Scolinos’s recommendation. On March 7, 2007, USA Today
published an editorial under Attorney General Gonzales’s name entitled,
“They lost my confidence.” The editorial contained two statements that
further exacerbated the controversy: “While I am grateful for the public
service of these seven U.S. Attorneys, they simply lost my confidence”;
and “I hope that this episode ultimately will be recognized for what it
is: an overblown personnel matter.” Gonzales told us that he did not
authorize either statement to be contained in the editorial. We therefore
investigated how the editorial was developed. Roehrkasse told us that he
wrote the first draft of the editorial. His draft, which we reviewed,
expressed the Department’s regret regarding the manner in which the
removals were handled. A sentence at the end of the draft stated that U.S.
Attorneys serve at the pleasure of the President and that “[i]f they 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 with other individuals.” Roehrkasse sent the draft
to one of the Attorney General’s speechwriters, asking her to edit and
“polish” the essay. The speechwriter changed the tone of the essay to
stress that the removals were essentially a personnel matter. The edited
version began by noting that “the handling of personnel matters is one
of the toughest 88 challenges employers face,” and concluded with a
sentence characterizing the controversy about the removals as a “tragically
overblown personnel matter.” Our review of documents and e-mails shows
that most of that new phrase remained in every draft version thereafter,
and appeared in the published version as an “overblown personnel matter.”
Scolinos received a copy of the draft essay at 4 p.m. on March 6 and made
only a few edits before forwarding it to Sampson for further review and
for the Attorney General’s approval. Scolinos told us that USA Today’s
6:30 p.m. deadline was rapidly approaching when Sampson called to tell her
he had made some edits to the essay but could not e-mail them to her
because the Department’s computers had crashed. Scolinos said that the
essay was past due when Sampson and Attorney General Gonzales brought it
to her office. Because the computers were still down and because Scolinos
was on a call with another reporter, Sampson read the editorial to a USA
Today reporter over the telephone in another office while Gonzales waited
in Scolinos’s office. Scolinos said that when Sampson read the editorial
to the USA Today reporter, he inserted into the essay the line, “While I
am grateful for the public service of these seven U.S. Attorneys, they
simply lost my confidence.” Scolinos said when Gonzales later heard what
Sampson had read to USA Today, he told her he was unhappy because he had
told Sampson to remove the line containing the phrase “tragically
overblown personnel matter,” but Sampson left part of the phrase in, and
he added the line “they simply lost my confidence” without Gonzales’s
knowledge. Scolinos said that Gonzales told her that he would not have
said that, and that Sampson nevertheless tried to defend the statement.
According to Scolinos, Gonzales asked if they could retract the essay.
Scolinos advised against it, given the fact that the Attorney General’s
Chief of Staff had just called in an editorial purporting to be from the
Attorney General. Sampson told us that he added the phrase “they lost my
confidence” because he had to make a quick judgment while dictating the
essay over the telephone, and he believed the language the Attorney
General wanted to use in its place was “bad grammar.”67 Sampson
acknowledged that he had added the phrase without the Attorney General’s
approval. Gonzales told us that the phrase was “a terrible thing to say
about somebody,” and the essay did not reflect what he wanted to say.
However, 67 Sampson told congressional investigators that the language the
Attorney General wanted to use was something to the effect of “we
thought we could do better,” or “we thought a change could improve the
office.” 89 when we asked Gonzales how his Chief of Staff could
inaccurately represent to a national newspaper that the words of the essay
were the Attorney General’s, Gonzales said, “I don’t have an answer
for that.” Gonzales told us that he had stopped reading newspapers by
the time the essay was published on March 7, and that he never talked
directly with Sampson about the essay after it appeared. N. Additional
Documents Come to Light Over the next several days, the controversy about
the removal of the U.S. Attorneys intensified further. On March 7, the
Senate Judiciary Committee asked the Attorney General to make certain
Department staff, including Sampson and Goodling, available for interviews
or public testimony about the removals. On March 8, the House Judiciary
Subcommittee requested documents and other information related to the
removals. Also on March 8, Gonzales met with Senators Leahy, Schumer,
Feinstein, and Specter to discuss their request to interview Department
staff and to obtain documents concerning the removals. At the end of the
meeting, Gonzales agreed to produce the documents. He also agreed to
discuss making Goodling and Sampson available for interviews. According to
Roehrkasse, in an attempt to present a clearer picture of the Department’s
involvement in the U.S. Attorney removals, Scolinos and Roehrkasse had
planned to brief reporters from The Washington Post and The New York Times
on Friday, March 9 about the chronology of the removal plan so that the
reporters could write stories to appear over the weekend. According to
Roehrkasse, the stories were supposed to follow up on Moschella’s
testimony about the specific reasons for the removals by providing an
explanation of how the removals came about. On the evening of March 7,
Roehrkasse informed Sampson that he needed documents and other information
about the removals to provide background information to the reporters, and
Roehrkasse arranged to meet with Sampson the following day. Sampson
prepared for his meeting with Roehrkasse by printing out documents and
e-mails from his computer concerning the removals. Roehrkasse said that
when he met with Sampson on March 8, Sampson discussed how he had met with
Comey, Mercer, and McNulty and developed the removal list after “picking
their brains” about which U.S. Attorneys they would recommend for
replacement. Roehrkasse said Sampson also told him that the removals had
been in the works with the White House Counsel’s Office for a long time.
Roehrkasse said that Sampson showed him an e-mail to Harriet Miers dated
January 6, 2006, containing a list of U.S. Attorneys he recommended for
removal, which showed that the White House had been 90 involved much
earlier than the fall of 2006. Roehrkasse said that Sampson also told him
that he had had conversations with the White House dating back to the
beginning of 2005 about removing U.S. Attorneys. Roehrkasse said that he
took copies of the documents Sampson had printed out, and that shortly
after his meeting with Sampson he realized while reviewing the documents
that Moschella’s congressional testimony was inconsistent with what the
documents showed. Roehrkasse said he discussed his concerns with Scolinos,
and together they discussed the problem with officials in the White House
Communications Office. According to Roehrkasse, it was the first time
White House communications officials became aware of the origin of the
plan to remove the U.S. Attorneys, and of the White House’s greater
level of involvement in the removals. According to Gonzales, during the
afternoon of March 8 Scolinos called to inform him of the discovery of the
documents. Gonzales then discussed the matter with McNulty, who Gonzales
said was very unhappy that he was not correctly informed about the timing
and substance of the White House’s involvement in the removals. Gonzales
said he instructed Scolinos to discuss the matter with Sampson to address
the problem. Moschella told us that in the late afternoon of March 8 he
saw Goodling in the hallway and she looked very distraught and upset.
According to Moschella, when he asked what was wrong Goodling was evasive
but said there was something going on in the Office of Public Affairs
concerning the U.S. Attorney matter.68 Moschella said that after he spoke
with Goodling, he went to see McNulty, who was on his way out of the
office. Moschella said he asked McNulty if he thought he knew the whole
story concerning the U.S. Attorney removals. Moschella said McNulty told
him that there was more to the story, but he did not have time to discuss
it at that point. Moschella said McNulty told him that Sampson had found
some documents that shed light on the removals. Moschella said that when
he discussed the matter with Sampson later that evening, Sampson showed
him the e-mails indicating far earlier, more active White House
involvement in the U.S. Attorney removals than Moschella had testified
about. Moschella said he was “flabbergasted” when he saw these
documents. Moschella said he immediately told Sampson that the Department’s
Office of Legal Counsel would have to become involved in light of this new
information 68 According to Margolis, Goodling came into his office late
on March 8 extremely distraught over the revelation of Sampson’s
documents, and asked whether Margolis had spoken to Sampson. Margolis also
said that Goodling implied that her career in the Department was over, but
she did not state specifically what she had done. 91 and would need to
oversee the Department’s response to congressional document requests.
Moschella told us he was very angry with Sampson and expressed that anger
in no uncertain terms. Sampson told us that when he initially retrieved
the documents and emails he was not focused on the issue of what the
Department had represented to Congress about the timing and nature of the
White House’s involvement in the removals. Sampson also said he had not
focused on that issue during the preparation sessions for McNulty’s and
Moschella’s testimony. Sampson said that when he initially located the
e-mails, he felt that they proved that the Department was always planning
to work with the Senate to find replacements for the U.S. Attorneys and
that there were no politically connected candidates slated to replace the
U.S. Attorneys.69 Sampson also said that the documents proved that the
Department and the White House had been discussing the removal of U.S.
Attorneys for a long time, which he said refuted the claim that U.S.
Attorneys were removed to interfere with, or in retaliation for, any
prosecution. Sampson said he did not realize the documents presented a
problem until he showed them to Moschella, who expressed concern that
Congress would believe he had testified falsely. Sampson said he told
Moschella his fear was unjustified. Sampson said that both Moschella and
McNulty seemed upset with him, but Sampson did not believe he had misled
them into testifying inaccurately. Sampson said that when he read the
documents to Margolis later and asked what he thought, Margolis said, “I
think you’re going to be testifying [before Congress].” Sampson said
that until March 8, there had been no discussion of the Department making
documents or additional Department staff available to Congress. However,
Sampson said he knew that subpoenas were on Congress’s agenda, and he
thought there would be a battle with Congress over executive privilege
regarding the documents. Sampson stated that when Attorney General
Gonzales met with the Senators on the afternoon of March 8, the Attorney
General “caved” and agreed to make all staff and all the documents
available. Sampson said he recognized that this meant the documents he had
just discovered would be produced to Congress. McNulty told us that at
some point during the afternoon of March 8, he went to Sampson’s office
and Sampson showed him the documents indicating earlier, more substantive
White House involvement in the removals. McNulty 69 It is unclear how the
earlier e-mails would have helped prove this point because the Attorney
General’s appointment authority was not signed into law until March
2006. Moreover, the January 6, 2006, e-mail already listed potential
replacements for several of the U.S. Attorneys. 92 said that when Sampson
showed him the e-mails, Sampson said something to the effect of “here is
a new issue we are going to have to address.” McNulty said he did not
study the documents closely but saw that there were references to
compiling names prior to the October 2006 timeframe that McNulty had
discussed in his closed briefing with the Senate Judiciary Committee.
McNulty said that what he saw of Sampson’s documents was sufficient to
call into question the accuracy of his and Moschella’s congressional
testimony. McNulty said Sampson did not seem excessively troubled when he
showed McNulty the documents, although Sampson appeared to realize it was
a major development. Early the next morning, Friday, March 9, Sampson
offered the Attorney General his resignation. Sampson told us that it had
been “a tough week,” and Gonzales was not happy with him after the USA
Today editorial appeared on March 7. Sampson said that after the documents
came to light on March 8, he believed the Department needed someone to
manage its response to Congress, but given his role in creating the
predicament he did not think he was the right person to do so. He said
that when he offered Gonzales his resignation, he told Gonzales that he
was sorry for his role in creating a “political scandal.” Sampson
later testified to Congress he believed that as Chief of Staff he could
have, and should have, helped to prevent the Department from making
incorrect representations about the U.S. Attorney removals. Sampson said
that he felt “honor bound” to accept his share of the blame for the
problem and to hold himself accountable. Gonzales did not accept Sampson’s
resignation immediately. During the morning of March 9, McNulty, Moschella,
Sampson, and Hertling met with Steve Bradbury, Acting Assistant Attorney
General for the Office of Legal Counsel, to discuss how to proceed.
According to Moschella, Sampson did not apologize or explain why he did
not tell McNulty or Moschella about his contacts with the White House
Counsel’s Office before the fall of 2006. Later that day, employees from
the Department’s Office of Information and Privacy began conducting
searches on the Department’s senior staff’s computers and in files for
documents relevant to the removals to produce documents requested by
Congress. The searches continued over the weekend and for several days
thereafter. On March 13, the Department began producing documents to
Congress. According to McNulty, Gonzales asked him to formulate a plan to
address how the Department should handle the problems the controversy had
brought to light concerning the removals and how they were accomplished.
McNulty said Gonzales expressed some ideas to him over the telephone, and
on Saturday, March 10, McNulty drafted a memorandum entitled “United
States Attorneys Reforms and Remedies.” Among the suggestions in the
memorandum were developing a systemic performance review process for U.S.
93 Attorneys; reviewing the U.S. Attorney’s Manual reporting
requirements for contacts between political officials and U.S. Attorneys;
establishing a protocol to ensure that the discipline or removal of a U.S.
Attorney is not inappropriately connected to a public corruption case;
directing the Department’s Office of Professional Responsibility to
conduct an investigation into the removals of the U.S. Attorneys;
assisting Bogden, Iglesias, and Chiara with future employment, perhaps in
the Department; and communicating the Attorney General’s regret
regarding the handling of the removals directly to the U.S. Attorneys. O.
Sampson’s Resignation On Monday, March 12, the Attorney General accepted
Sampson’s resignation. Gonzales said when he accepted the resignation he
told Sampson that the USA Today editorial had really hurt Gonzales.
Sampson told us that when Gonzales accepted his resignation, Sampson told
Gonzales he thought accepting the resignation was a mistake, but Gonzales
was adamant that Sampson needed to resign. Sampson said he told Gonzales
it was his prerogative, but said he had offered his resignation earlier
only because he thought it was the honorable thing to do. After offering
his resignation as Chief of Staff, Sampson attempted to arrange another
political appointment in the Department as a Counselor to the Assistant
Attorney General in the Environment and Natural Resources Division (ENRD).
Sampson told us he was concerned about not having a job lined up, and he
asked Gonzales to reassign him elsewhere in the Department while he
considered what to do next. Sampson said his reassignment to ENRD did not
occur, because after the Attorney General’s press conference on March 13
and the subsequent media coverage Sampson thought he needed legal
representation. Sampson resigned and left the Department effective March
14, 2007. P. The Scudder Memorandum During our investigation, we also
learned that in early March 2007 White House Associate Counsel Michael
Scudder (a former Department attorney) was directed by the White House
Counsel to prepare a chronology of events related to the U.S. Attorney
removals. According to the White House Counsel’s Office, the chronology
was developed so that the White House could respond to inquiries about the
matter. To accomplish that task quickly, Scudder interviewed several
people in the Department and within the White House, including Karl Rove.
As a result of his interviews and review of documents, in March 2007
Scudder produced at least two drafts of a memorandum setting out a
chronology of events related to the removals of the U.S. Attorneys. 94
Scudder also provided these drafts to the Department’s Office of Legal
Counsel (OLC). When OLC prepared its own more extensive chronology of
events, it used Scudder’s draft memoranda to supplement its efforts.
According to e-mail records, around March 20, 2007, as part of Attorney
General Gonzales’s effort to understand the circumstances surrounding
the removals, OLC provided Scudder’s memorandum to Gonzales. However,
Gonzales told us he did not recall seeing Scudder’s chronology. We asked
OLC for a copy of the memorandum and all the drafts, but OLC declined,
stating that the White House Counsel’s Office had directed OLC not to
provide them to us. We thereafter engaged in discussions with the White
House Counsel’s Office during this investigation in an attempt to obtain
the Scudder memorandum. The White House Counsel’s Office agreed to read
one paragraph of the memorandum to us, and provided us with two paragraphs
of information concerning Rove that had already been reported publicly,
but declined to provide any further information from the memorandum.
Eventually, the White House Counsel’s Office provided us with a heavily
redacted version of the document. We believe the refusal to provide us
with an unredacted copy of this document hampered our investigation. Q.
Attorney General Gonzales’s March 13 Press Conference On Tuesday, March
13, Attorney General Gonzales held a brief press conference concerning the
U.S. Attorney removals. According to Roehrkasse, the purpose of the press
conference was to show that the Department was in control of the situation
now that it had become clear that there was a greater level of White House
involvement than Department officials had previously portrayed, and to
respond to the perception that the Department was withholding information.
Gonzales began the press conference by stating that all political
appointees serve at the pleasure of the President. He stated that he would
in no way support an effort to circumvent the Senate’s advice and
consent role with respect to the appointment of U.S. Attorneys. He
acknowledged that the Department had made mistakes, said he accepted
responsibility for them and pledged to find out what had gone wrong.
Gonzales also said that incomplete information had been given to
Department officials, who then communicated that information to Congress.
Gonzales then stated that “all political appointees can be removed by
the President of the United States for any reason” and that he stood by
the decision to remove the U.S. Attorneys. During the press conference,
Gonzales made several statements about his own role in the removal process
that were inaccurate. Gonzales specifically stated that he “was not
involved in seeing any memos, was not involved in any discussions about
what was going on.” Later in the press conference, Gonzales 95
reiterated, “I never saw documents. We never had a discussion about
where things stood.” Gonzales later testified to Congress that he should
have been more careful about his public statements and that he had not
reviewed relevant documents or his calendar before the press conference.
Gonzales said that once the documents contradicting the Department’s
prior public statements came to light, he had felt it necessary to quickly
and publicly defend the Department from accusations about improper
conduct. R. Attorney General Gonzales Directs an Investigation In
accordance with the plan Gonzales and McNulty had discussed during the
weekend, on March 12 Gonzales, McNulty, and Elston discussed having the
Department undertake an internal investigation of the removals. An e-mail
dated March 13, from Elston to Marshall Jarrett, Counsel of the Office of
Professional Responsibility (OPR), stated that the Attorney General had
directed OPR to investigate the basis for the removals. Elston wrote in
the email to Jarrett: As we discussed last night . . . The Office of
Professional Responsibility (OPR) has been directed to undertake an
expedited investigation of whether any of the removals of the USAs on
December 7, 2006, were intended to interfere with or in retaliation for a
public integrity investigation. OPR has also been directed to make
recommendations on how best to avoid or effectively respond to such
alleged appearances in the future. On March 14, OPR delivered a
preservation of records memorandum to the Attorney General’s office. A
few days later, the Inspector General learned about the assignment of the
investigation to OPR and objected, stating that he believed the Office of
the Inspector General (OIG) had jurisdiction to investigate these issues.
OPR disagreed. Eventually, the OIG and OPR agreed to conduct this
investigation jointly, and the scope of the resulting investigation was
much broader than suggested by Elston’s e-mail. S. Attorney General
Gonzales’s Conversation with Goodling On Thursday, March 15, Goodling
met with Attorney General Gonzales to request a transfer. According to
Gonzales, Goodling came into his office in an extremely distraught state,
and sat down in a slouched position with her head bowed holding her hands
together. Gonzales told us that Goodling said she was paralyzed and could
not do her work. Gonzales asked her why and she said something about
having had the same information that Sampson had. Gonzales told us he had
the impression that Goodling was feeling guilty or 96 confused or
frightened. Gonzales said he told her, “No one intentionally has done
anything wrong.” He said he wanted to reassure her and began to tell her
what he knew about what had happened with regard to the U.S. Attorney
removals. However, Gonzales told us he did not remember specifically what
he told her about the removals. Gonzales told us that, in the meeting,
Goodling sought a transfer either to another component in the Department
or to the Eastern District of Virginia as an Assistant United States
Attorney. Gonzales also recounted for us a detailed and very personal
story he said Goodling told him during their conversation concerning why
she went to law school and wanted to become a prosecutor. According to
Gonzales, he told Goodling he would consider her request for a transfer
and assured her that they would get through the current situation.
Gonzales said it seemed that Goodling felt better and left his office. In
her testimony about this incident before the House Judiciary Committee,
Goodling said the conversation with Gonzales made her uncomfortable
because she was concerned they might have to testify about the U.S.
Attorney removals at some point. Goodling confirmed in her testimony that
she was distraught and was seeking a transfer, and that Gonzales told her
he would need to think about it. Goodling said that after that part of the
conversation, Gonzales was “just trying to chat” and said “‘let me
tell you what I can remember.’” According to Goodling, Gonzales laid
out his general recollection of some of the events concerning the
removals, and then asked her if she had any reaction to what he said.
Goodling said that Gonzales mentioned that he thought that everybody who
was on the removal list was there for a performance-related reason, and he
had been upset with McNulty because he thought McNulty wrongly testified
that Cummins was removed only to give Griffin a chance to serve. In her
congressional testimony, Goodling said there was more to her discussion
with Gonzales, but she said she could not recall anything further at that
time. Goodling said she remembered thinking that it was not appropriate
for them to be discussing these issues at that point because they both
might have to testify later, and so she did not respond. Goodling said
that before the conversation took place the Attorney General had informed
her that the Department was negotiating whether she would be interviewed
or would testify before Congress. In her congressional testimony, Goodling
said she did not believe that Gonzales was trying to shape her
recollection. When we asked Gonzales about his conversation with Goodling,
he said that he did not see how anyone could attempt to shape Goodling’s
testimony because she was normally such a “very confident, strong-willed
young woman.” Gonzales said he did not recall talking to Goodling about
Cummins or about being upset with McNulty. When we asked Gonzales why he
had such a detailed memory of other aspects of their conversation, such as
her demeanor 97 and the story about why she went to law school and wanted
to be a prosecutor, but could not recall if they discussed Cummins and
McNulty, Gonzales conceded, “it may very well be. I’m not saying that
I didn’t talk about Bud Cummins or didn’t talk about McNulty.” When
we asked Gonzales whether he considered that it might have been
inappropriate for him to discuss his recollections with Goodling, he told
us that he did not give it any thought at the time because he was just
trying to help her. T. Goodling Resigns from the Department On March 15,
Chuck Rosenberg, the U.S. Attorney for the Eastern District of Virginia,
agreed to serve as the Attorney General’s interim Chief of Staff after
Sampson resigned. Rosenberg recalled that on March 16 Goodling came into
his office at Main Justice extremely distraught, stating that her life was
ruined. Rosenberg said she mentioned wanting to transfer to the Eastern
District of Virginia to become an AUSA. Rosenberg told Goodling that he
wanted to talk to her but was unable to do so at the time. Rosenberg said
that when Goodling left his office, he expressed his concern about her
well-being to Gonzales, who told him that Goodling had been to see him
earlier in a similar emotional state. Rosenberg said he and Gonzales did
not discuss the substance of Gonzales’s conversation with Goodling, only
her emotional state. Rosenberg said he learned only after Goodling
testified before Congress that Gonzales may have discussed issues with
Goodling concerning the removals. After Rosenberg spoke to Gonzales about
Goodling, Rosenberg enlisted the assistance of Courtney Elwood, who was
then the Attorney General’s Deputy Chief of Staff, to help Goodling.
According to Elwood, Goodling was visibly shaking, crying, and in extreme
distress. Elwood said that Goodling said that after Gonzales’s press
conference on March 13, she felt she had been accused of misleading
McNulty in the representations he made to Congress about the removals.
Elwood urged Goodling to take some time off to take care of herself. On
March 19, Goodling scheduled annual leave through the end of March.
Goodling never returned to work at the Department, and she resigned from
the Department, effective April 7, 2007. U. Subsequent Events According to
Rosenberg, by late March or early April 2007 Gonzales was seeking ways to
reach out to the U.S. Attorneys who had been removed in December 2006.
Rosenberg said that Gonzales discussed writing a personal note to each of
the U.S. Attorneys and enclosing an Op-Ed piece he would write that
contained his personal apology to them. Rosenberg said that Gonzales
drafted notes for an essay admitting that the U.S. Attorneys had not been
98 treated well and that they were excellent public servants, even though
they had been asked to leave. However, the essay was never sent for
publication. Instead, according to documents we reviewed, the Attorney
General’s written testimony for his April 19 hearing before the Senate
Judiciary Committee contained an apologetic tone for the way the removals
were handled. In his written remarks prior to his April 19 testimony,
Gonzales stated that the U.S. Attorneys “deserved better - they deserved
better from me and from the Department of Justice which they served
selflessly for many years.” Gonzales stated that “Each is a fine
lawyer and dedicated professional. I regret how they were treated, and I
apologize to them and to their families for allowing this matter to become
an unfortunate and undignified public spectacle. I accept full
responsibility for this.” Gonzales testified before the Senate Judiciary
Committee on April 19 and the House Judiciary Committee on May 10, 2007.
In response to questions concerning the circumstances of the removals,
Gonzales stated that he had not spoken to Sampson or to others who were
involved in the removals once he became aware the matter was being
investigated. Gonzales also stated that he had not discussed the removals
with other fact witnesses in order to protect the integrity of the OIG-OPR
investigation. In his testimony before the Senate Judiciary Committee on
July 24, 2007, Gonzales acknowledged he had had a conversation with
Goodling on March 15 during which he discussed his recollection of some of
the facts regarding the removals. However, Gonzales said he did so only in
the context of trying to console and reassure Goodling that she had done
nothing wrong. On May 14, McNulty announced that he would resign as Deputy
Attorney General and he left the Department at the end of July 2007. On
August 27, Gonzales announced his resignation as Attorney General,
effective September 17. In the next nine chapters, we examine in detail
the circumstances surrounding each U.S. Attorney’s removal and our
analysis of the reasons the Department proffered for each removal. Oct
2001 Nov 2001 Oct 2004 Nov 2004 Dec 2004 Jan 2005 Feb 2005 Mar 2005 Apr
2005 Nov 2005 Dec 2005 Jan 2006 Feb 2006 Mar 2006 Apr 2006 May 2006 May
2007 Todd Graves Timeline Oct 11, 2001 Graves is confirmed by the Senate
as the U.S. Attorney, Western District of Missouri Oct 2004 - Dec 2004 In
the Fall of 2004, a member of Senator Bond’s staff calls Graves and
insists that Graves persuade his brother, Representative Sam Graves, to
fire his Chief of Staff Feb 2005 Graves’s wife awarded a state contract
Mar 2, 2005 On Sampson's first removal list Graves is included in the
category, "No recommendation; have not distinguished themselves
either positively or negatively" Apr 8, 2005 Margolis determines
there is no conflict of interest related to Graves's wife’s state
contract at this time Feb 2005 - Dec 2005 Senator Bond’s legal counsel,
Jack Bartling, calls the White House Counsel's Office several times to
request Graves’s removal Nov 2005 OIG opens an investigation on
anonymous allegations against Graves; some allegations are referred to OPR
Dec 22, 2005 Bartling calls Elston, and thereafter talks to him, regarding
a “sensitive issue” relating to the request from Senator Bond’s
office to the White House Counsel's Office to remove Graves Jan 9, 2006
Graves’s name appears for the first time on Sampson’s removal list Jan
19, 2006 Sampson e-mails Battle asking him to call concerning Graves;
shortly thereafter, Goodling instructs Battle to seek Graves's resignation
Jan 24, 2006 Battle calls Graves and tells him to resign Mar 8, 2006 OIG
issues a report finding no misconduct by Graves with respect to the
anonymous allegations Mar 10, 2006 Graves announces his resignation May
2006 OPR closes its inquiry into the allegations against Graves and finds
no misconduct May 9, 2007 Graves confirms publicly that he was asked to
resign Mar 24, 2006 Graves leaves office Oct 2001 Graves Events and
Actions Oct 2001 DOJ and Other Events and Actions 99 CHAPTER FOUR TODD
GRAVES I. Introduction Before and during the congressional hearings that
followed the December 7, 2006, removals of U.S. Attorneys, the Department
represented to Congress that seven U.S. Attorneys, plus Bud Cummins, were
the only U.S. Attorneys removed as a result of the process Kyle Sampson
initiated in 2005 to identify and remove “underperforming” U.S.
Attorneys. In his January 12, 2007, briefing on Capitol Hill, Sampson
assured staff for Senate Judiciary Committee members Senators Patrick
Leahy and Dianne Feinstein that those eight were the only U.S. Attorneys
told to resign in 2006. Until May 2007, Department witnesses who appeared
before Congress on the matter testified about the group of eight, and no
one mentioned that Todd Graves of the Western District of Missouri had
been told to resign in January 2006. On May 9, 2007, however, Graves
publicly confirmed that he had been told to resign in January 2006.
Although the Department did not initially identify Graves as one of the
U.S. Attorneys who was told to resign as a result of the process Sampson
initiated in 2005, we concluded that Graves should be considered part of
that group. Graves was targeted for removal on Sampson’s second list,
issued on January 9, 2006, and the script Battle followed in asking Graves
to resign was identical to the one Battle followed with the other eight
U.S. Attorneys. In our investigation into the circumstances of Graves’s
removal, we were hampered by several factors: Sampson’s and Goodling’s
stated failures of recollection as to the reason for Graves’s removal;
Goodling’s refusal to cooperate with our investigation; the lack of
cooperation by former White House Counsel Harriet Miers and members of her
staff, especially former Associate White House Counsel Richard Klingler;
and the absence of any documentation memorializing the reasons for Graves’s
removal. Despite these impediments, we were able to reconstruct much of
the circumstances underlying Graves’s removal, which we discuss below.
In this chapter, we also analyze the Department’s stated reasons for
requiring Graves’s resignation. A. Graves’s Background Graves
graduated from the University of Virginia School of Law in 1991 with a
J.D. and a Master’s degree in Public Administration. He began his legal
career in 1991 as an Assistant Attorney General for the state of Missouri.
Between 1992 and 1994, Graves worked for a law firm in Missouri. In 1994
he 100 was elected Platte County Prosecuting Attorney and was reelected in
1998. He served in that position until he became U.S. Attorney. Graves’s
nomination as the U.S. Attorney for the Western District of Missouri was
sponsored by Missouri Senator Christopher S. “Kit” Bond. On July 30,
2001, the White House announced its intent to nominate Graves. While the
nomination was pending Senate approval, Graves was appointed as Interim
U.S. Attorney on September 17, 2001. On October 11, he was confirmed by
the Senate as U.S. Attorney. In December 2001, Graves was appointed
co-chair of the Child Exploitation Subcommittee of the Attorney General’s
Advisory Committee. His 4-year term as U.S. Attorney expired on October
11, 2005. 1. The EARS Evaluation of Graves’s Office Graves’s office
underwent an Evaluation and Review Staff (EARS) evaluation in early March
2002, a few months into his tenure. The 2002 report noted that Graves was
well regarded and respected by community leaders, agency personnel, and a
majority of the federal judges in the district. The report stated that “the
perception of the USAO staff as to his performance is positive, even in
this early stage of his tenure.” The office was not scheduled for
another EARS evaluation until September 2006, which was several months
after Graves was removed. 2. Graves’s Status on the Removal lists On the
first list of U.S. Attorneys Sampson sent to the White House on March 2,
2005, Graves was one of many U.S. Attorneys included by Sampson in the
category of those who had not distinguished themselves either positively
or negatively. However, on the second list Sampson sent to Miers on
January 9, 2006, Graves was one of seven U.S. Attorneys Sampson suggested
for removal. As discussed in Chapter Three, less than 2 weeks later, on
January 19, Sampson e-mailed Battle, asking him to call when he had a few
minutes to discuss Graves. Shortly thereafter, Goodling called Battle with
instructions to call Graves and seek his resignation. Battle was
instructed to tell Graves only that the Administration had decided to make
a change, that his service was appreciated, and that the request was not
based on any misconduct by Graves but simply to give someone else a chance
to serve. Battle placed the call on January 24. Graves said that when he
received the call, he was stunned and shocked. Graves complied with the
direction to resign, and on March 10, 2006, publicly announced his
resignation, effective March 24. 101 B. Reasons Proffered for Graves’s
Removal In her immunized testimony before the House Judiciary Committee on
May 23, 2007, Goodling stated that she had “conflicting memories”
about the circumstances that led to the request for Graves’s
resignation. Goodling said she thought that Graves’s resignation was
related to the “fact that he was under investigation by the Inspector
General” at the time. Similarly, Sampson stated to congressional
investigators, and initially to us, that there was “some controversy
around Graves” that Sampson said he associated with an OPR or OIG
investigation. However, Sampson told us that he could not “really
remember” why Graves was placed on the January 9 list or why he was
asked to resign 2 weeks later. Sampson also said he did not recall playing
any role in asking for Graves’s resignation. Even after reviewing his
January 19 e-mail asking Battle to call him about Graves, Sampson said
that all he remembered about Graves’s resignation was Goodling coming
into his office and saying, “Graves has to go.” Sampson stated that,
based on what Goodling said, his “perception” was that Associate
Deputy Attorney General David Margolis had made that determination as a
result of an OPR or OIG investigation.70 Margolis told us, however, that
he was not consulted about Graves’s removal, and he did not make any
determination or recommendation to remove Graves. Moreover, as discussed
below, we determined that Graves was not asked to resign based on any
misconduct allegations. Rather, Graves faced opposition from the staff of
his home-state Senator, Senator Bond, which we concluded likely led to his
removal.71 We describe and analyze these issues below. 70 Sampson did not
discuss Graves during his testimony before the Senate Judiciary Committee
on March 29, 2006. On July 10, 2006, during his third day of interviews
with congressional staff, Sampson was asked about Graves and, as he did
later in his interview with us, claimed a failure of recollection on the
subject. He stated that he did not have a specific recollection of placing
Graves’s name on the January 9, 2006, removal list, but said he knew
that Graves was not part of the process that resulted in the resignations
of the eight U.S. Attorneys who were the subject of the congressional
investigation. Sampson said he believed that Graves’s resignation was
handled by Margolis, and said he did not recall the January 19, 2006,
e-mail he sent to Battle asking him to call to discuss Graves. 71 We asked
Senator Bond for an interview regarding the circumstances surrounding
Graves's removal and any communications between his office and officials
in the Department and the White House. In a letter responding to our
request, Senator Bond declined to be interviewed. He added in the letter
that, to the best of his recollection, he did not communicate with anyone
in the Administration concerning Graves's performance at any time during
Graves’s tenure as U.S. Attorney and that he did not believe he
personally had any additional information to contribute. 102 II.
Chronology of Events Related to Graves’s Removal A. The Misconduct
Allegations In 2005, two allegations of misconduct were made against
Graves. The first, in March 2005 from the Executive Director of the
Missouri Democratic Party, related to Graves’s wife. The second, in
October 2005 from an anonymous source, related to various actions by
Graves. Both complaints were investigated, and neither resulted in a
misconduct finding against Graves. 1. Allegations Concerning Graves’s
Wife In February 2005, newly elected Missouri Governor Matt Blunt’s
Administration awarded a no-bid contract to Graves’s wife to manage a
motor vehicle license office in a heavily populated area near Kansas City.
In Missouri, license agents are independent contractors who, under
contract with the state’s Department of Revenue, receive a portion of
the fees collected by the license office. In a letter dated March 1, 2005,
Cory Dillon, the Executive Director of the Missouri Democratic Party,
urged Attorney General Gonzales to remove Graves from office based on his
wife’s acceptance of the no-bid contract. The letter alleged that in
addition to Graves’s wife, her brother and two staff members of U.S.
Congressman Sam Graves (U.S. Attorney Graves’s brother) were awarded
similar license fee office contracts. On March 2, 2005, the Kansas City
Star reported on Dillon’s letter to Gonzales. The next day, the
newspaper ran an editorial criticizing the contract and opining that U.S.
Attorney Graves now had a “clear conflict of interest” if any
investigation of the Governor’s Administration should arise. After
receiving an inquiry from the White House about this issue, Sampson
referred the matter to Chuck Rosenberg, who at the time was the Chief of
Staff to the Deputy Attorney General. According to Sampson’s March 16,
2005, e-mail to Rosenberg, the White House had asked “(1) whether we
have looked into the allegations made against Graves . . . and (2) what
our conclusion is, i.e., whether we are comfortable that he doesn’t have
any legal or ethical issues.” The matter was thereafter referred by
Associate Deputy Attorney General Margolis to the Executive Office for
U.S. Attorneys (EOUSA), which in turn referred the matter to the OIG.
After reviewing the matter and discussing the issue with Margolis, the OIG
decided not to open an investigation based on the absence of any pending
investigations that presented an actual or apparent conflict of interest
for Graves. 103 In a letter dated April 8, 2005, Margolis informed Graves
that “[a]fter reviewing the substance of Mr. Dillon’s letter,
consulting with OIG, and considering additional information, I have
determined that there is no existing conflict of interest that requires
further action at this time.” Margolis further advised Graves that he
should be mindful of the Department’s “procedures by which you should
seek recusal from any existing or future matter in which a conflict of
interest exists.” Margolis pointed out that “[l]ike all United States
Attorneys, you are expected to adhere to all legal and ethical obligations
in carrying out your duties.” In his interview, Graves told us that he
had brought the Dillon complaint to the attention of EOUSA Director Mary
Beth Buchanan after he learned about it on the Internet. According to
Graves, he called EOUSA because he believed he had done nothing wrong and
wanted to respond publicly to what he viewed as Dillon’s false
allegations that he had a conflict of interest. Graves also told us that
he later used Margolis’s letter in his public responses to demonstrate
that he had not engaged in any impropriety in connection with his wife’s
contract. Graves stated that at no time did any Department official raise
any question concerning the propriety of his wife’s contract or suggest
that his wife’s contract placed his position as U.S. Attorney in
jeopardy. Moreover, Graves said that no Department or Administration
official ever raised with him any concerns about the quality of his
performance as U.S. Attorney. However, William Mercer, the Principal
Assistant Deputy Attorney General at the time, told us that he recalled
Sampson voicing at some point “real concerns” about Graves’s wife’s
contract because it did not reflect well on the U.S. Attorney’s Office.
Margolis told us that he would not have been surprised if the license fee
contract issue “played a huge role” in Sampson’s decision to place
Graves on the U.S. Attorney removal list. As Margolis recalled it, Sampson
was “really hot about it” because Sampson thought the arrangement made
the Department and the Administration “look bad,” despite Margolis’s
finding that Graves did not commit any misconduct.72 However, Margolis
could only speculate as to Sampson’s thinking because he was never
consulted on the decision to remove Graves and was not even aware of the
resignation request until it was made public in May 2007. We found no
expression of concern in Sampson’s March 17 e-mail to Rosenberg
referring the Graves matter to him. When congressional 72 In a March 17,
2005, e-mail to Rosenberg, Margolis stated: “[I]t strikes me that this
is more an indictment of the system out there than of the conduct of
Graves, but I must admit that it looks like the days of boss tweed or the
pendergrast machine.” In an e-mail to Elston and Mercer on December 19,
2005, Margolis called the conflict allegation “flimsy” and “not
substantiated.” 104 investigators asked Sampson about Graves’s
removal, he said he had no specific recollection of being involved in
Graves’s removal. Sampson also said he could not recall discussing
Graves’s removal with Gonzales, McNulty, or Margolis, who generally
handled the removal of U.S. Attorneys who had committed misconduct.
Sampson also did not express any consternation about the license fee
contract matter to us during his interview, and he essentially disclaimed
any responsibility for requesting Graves’s resignation. 2. Anonymous
Allegations Regarding Graves In the fall of 2005, the OIG received an
anonymous letter containing allegations that Graves had committed various
acts of misconduct. Graves told us that he believed the source of the
anonymous complaint was an employee that his office was seeking to
terminate. In late November 2005, the OIG opened an investigation into two
of the allegations contained in the letter: (1) that Graves had attended a
political fundraiser, an activity that would be prohibited by the Hatch
Act and by Department policy, and (2) that Graves was driven to the
fundraiser in a government car by a paralegal in the U.S. Attorney’s
Office. The OIG referred the remaining allegations to EOUSA and to
Margolis to determine whether further investigation was warranted by the
Department or OPR. In response, in early December 2005 OPR informed EOUSA
that it would investigate an allegation in the anonymous letter that
Graves had shared confidential information about an impending indictment
with his brother, a private attorney, to assist him in advertising for
potential class action victims of a defendant in a federal criminal case.
In an e-mail dated December 19, 2005, Margolis informed Michael Elston,
Chief of Staff to the Deputy Attorney General, and Mercer of the
allegations the anonymous source had made against Graves, and noted that
he intended to defer further investigation of the remaining allegations in
the letter pending the conclusion of the OIG and OPR investigations. As
noted above, Graves’s name first appeared on Sampson’s January 9,
2006, list of U.S. Attorneys that the White House should consider
replacing. On January 24, Graves was asked to resign, and on March 10,
2006, he announced his resignation, effective March 24. However, at the
time Graves was told to resign both the OIG and OPR investigations were
ongoing, and both were eventually resolved in his favor, albeit after he
had announced his resignation. In a report dated March 8, 2006, 6 weeks
after Graves was told to resign, the OIG concluded that Graves did not
commit misconduct. The OIG investigation found that Graves did not in fact
attend a political fundraiser; rather, his appearance at the building
where the fundraiser was held was confined to having his photograph taken
105 with the Vice President after the event - a permissible activity for a
U.S. Attorney.73 In May 2006, OPR closed its investigation after
determining that Graves did not have a brother who was engaged in the
private practice of law. B. Complaints About Graves As described above, in
their congressional testimony neither Sampson nor Goodling offered an
explanation for why Graves was placed on Sampson’s January 9, 2006,
removal list other than their vague recollection that the internal
Department investigations involving Graves may have been the basis for his
removal. Battle told us that he understood from Goodling that Graves’s
removal was not related to any allegation of misconduct, but rather in
order to make a change in the office. During the course of our
investigation, we found another factor that was most likely the reason for
Graves’s removal. 1. Senator Bond’s Congressional Staff Complain About
Graves to White House Staff In 2001, Missouri Senator Bond had sponsored
Graves for the U.S. Attorney position, but we learned that support for
Graves in Senator Bond’s office had waned by 2005. On at least two
occasions in 2005, Jack Bartling, Senator Bond’s legal counsel,
contacted the White House Counsel’s Office to request a change of the
U.S. Attorney for the Western District of Missouri. According to Bartling,
he called Associate White House Counsel Grant Dixton several times to seek
Graves’s removal. Bartling said his calls were not prompted by Senator
Bond and described the matter as a “staff issue” handled by himself
and Bond’s Chief of Staff. Bartling said that he did not discuss Graves’s
situation or his calls to Dixton with Senator Bond. Bartling stated that
Bond was the undisputed leader of the Republican congressional delegation
in Missouri and it would have been beneath Bond to be involved in Graves’s
removal. Bartling told us that his calls to Dixton at the White House
seeking Graves’s removal were instead prompted by discord between the
in-state staffs of Senator Bond and U.S. Representative Sam Graves, a
Missouri Republican congressman who was Todd Graves’s brother. According
to Bartling, 73 The OIG report also found that Graves’s use of the
government vehicle was not improper, although it did question the
appropriateness of Graves asking a paralegal, whose duties did not include
driving the U.S. Attorney, to drive him to the event. However, the report
noted that the paralegal did not object, and the OIG did not find Graves’s
actions to be misconduct. Rather, the report recommended that in the
future Graves should avoid making such requests. 106 Congressman Graves’s
operation “did not run business” the way the Bond operation tried to
run business. Bartling said that Bond’s staff also wanted Todd Graves to
try to rein in his brother, but Todd Graves did not do so. Bartling said
that at some point, possibly in a third call to the White House Counsel’s
Office, he also raised the issue of Graves’s wife accepting a no-bid
contract from Governor Blunt that paid considerably more than what the
highest-paid state employees made. Bartling told us that he viewed that
appointment as posing a conflict of interest for Graves as the chief
federal law enforcement officer in the western part of the state, who
might be called upon to investigate allegations against the Blunt
Administration. Dixton was the only person from the White House Counsel’s
Office involved in the Graves matter who agreed to be interviewed by us,
and he confirmed that Bartling called him about Graves. Dixton told us
that Bartling called him in the spring of 2005 and expressed interest in
changing the U.S. Attorney for the Western District of Missouri when
Graves’s 4-year term expired in October 2005. Dixton stated that while
he had no distinct recollection of doing so, he probably brought Bartling’s
request to the attention of Sampson and Deputy White House Counsel William
Kelley. However, Dixton said he recalled having only one conversation with
Bartling, and he did not recall discussing the issue of Graves’s wife’s
no-bid contract during that conversation. In approximately August 2005,
the responsibility in the White House Counsel’s Office for legal issues
in the Eighth Circuit (which includes Missouri) was assumed by Associate
White House Counsel Richard Klingler. We determined that based on the
timing of the calls from Bartling, it is likely that at least Bartling’s
final call raising the issue of Graves’s wife’s state contract to the
White House Counsel’s Office was taken by Klingler rather than Dixton.
Klingler, who now works at a private law firm, informed us through the
White House Counsel’s Office that he declined to be interviewed in our
investigation. 2. The Department Learns About Bond’s Staff’s
Complaints According to Bartling, by the summer of 2005 the concerns he
expressed about Graves to the White House Counsel’s Office made their
way to the Department. Bartling told us it was clear to him from his
conversations with the White House Counsel’s Office that the matter had
been “kicked over” to the Department of Justice. In addition, Bartling
said that he had an interview with the Department in the fall of 2005 for
a position in the Office of the Deputy Attorney General, and at some point
during the interviewing process Elston asked Bartling if Senator Bond was
still interested in changing the U.S. 107 Attorney for the Western
District.74 When we questioned Elston about this issue, he told us that he
first learned that Graves had lost Bond’s support from Bond’s staff,
not from someone in the Department. Elston also told us he did not recall
discussing with Bartling the reasons why Bond wanted to make a change in
the U.S. Attorney position, but Elston said he had his own assumptions
based on his familiarity with the discord between Bond Republicans and
Graves Republicans in Missouri. Elston said he did not discuss his
conversation with Bartling with McNulty or others in the Department
because it did not occur to him to do so. As previously noted, on December
19, 2005, Margolis had informed Elston and Mercer about the anonymous
allegations made against Graves. We determined that in late December 2005,
Bartling exchanged e-mails and phone calls with Elston concerning Graves.
On December 22, 2005, Bartling informed Elston by e-mail that he had
accepted a position with the Treasury Department starting in late January
2006. Bartling also suggested that the two talk after the first of the
year about a “sensitive issue” involving Graves “that has to be
handled the right way.” In reply, Elston asked Bartling if he was aware
of the “most recent allegations” involving Graves, and Elston invited
Bartling to call him “sooner rather than later.” According to Bartling,
when he and Elston spoke later by telephone, Elston told him only that
there were “ethics allegations” against Graves, but Elston did not go
into specifics.75 When we asked Elston about this conversation with
Bartling, he said that Bartling had told him previously that Senator Bond’s
office had asked the White House to discreetly “make a change” in the
Western District of Missouri, and Bartling called him in December 2005 to
ask him to “keep his ear to the ground” to ensure that the Senator’s
role in requesting White House action on Graves was not being disseminated
within the Department. Elston stated that Bartling was not asking him to
find out whether Graves was going to be removed. Elston said that, to the
contrary, Bartling “was telling me that it was 74 Elston had lived and
worked in Missouri for 5 years after he graduated from law school in 1994.
According to Bartling, he and Elston met for the first time in 2005 at a
lunch arranged by a mutual friend at the Department. 75 Elston told us he
was referring to the anonymous letter containing multiple allegations,
some of which were referred to the OIG and OPR. Elston said his
conversation with Bartling on the subject was brief and that he would not
have gone into the details of the allegations themselves. When we raised
with Elston our concern that he disclosed confidential information about
misconduct allegations against Graves, he told us that “the gist” of
what he was conveying to Bartling was not the substance or merits of the
allegations, but rather that the investigation of those allegations would
“delay the request to the White House to have [Graves] moved on.”
Although we found no evidence that Elston disclosed the substance of the
allegations to Bartling, the fact that an allegation was lodged with the
Department was itself confidential information that Elston should not have
disclosed. 108 going to happen.” According to Elston, the “sensitive
issue” mentioned in Bartling’s December 22 e-mail was Senator Bond’s
role (through Bartling) in seeking Graves’s removal, and Bartling wanted
Elston’s assistance to keep the Senator’s name from being linked to
Graves’s anticipated ouster.76 According to Elston, he was not involved
in the decision to seek Graves’s resignation. Elston stated that he did
not discuss his communications with Bartling with Sampson, McNulty, or
anyone else in the Department, or otherwise attempt to accelerate Graves’s
removal. Elston said that any effort to expedite the matter “would have
undermined [Bartling’s] principal purpose, which was for me to make sure
that Senator Bond’s contact with the White House was kept confidential.”
During our interview with Graves, he confirmed the existence of “friction”
between Senator Bond’s staff and the staff of Congressman Graves, but
Graves stated that he was not party to it and did not want to be involved
in it. Graves told us that in the fall of 2004 a member of Senator Bond’s
staff called him and angrily insisted that Graves use his influence to
persuade his brother to fire his brother’s Chief of Staff. According to
Graves, when he declined to get involved, the Bond staffer informed him
that “they could no longer protect [his] job.” Graves told us that he
never discussed this call with his brother and did not report it to anyone
in the Department. Graves told us that “if something like this could
cost me a prosecutor’s job, they could have it.” C. Graves is Told to
Resign As described above, on January 24, 2006, EOUSA Director Battle,
acting on instructions from Goodling, called Graves and told him to
resign. Battle said he told Graves that the Administration had decided to
give someone else a chance to serve; that his service was appreciated;
that the decision was not based on any misconduct by him; and that he had
served admirably and done a good job. Graves told us that when Battle
called him, Graves suspected that the decision was related to the call he
had received from Bond’s staffer more than a year earlier. He said he
asked Battle if he had a “senator problem.” In their first
conversation, according to Graves, Battle “sort of acknowledged that
maybe that was it,” but in a subsequent conversation Battle informed him
that Senator Bond had “nothing to do with it.” Graves told us that he
was ready to move on to the private sector at the time anyway, but he
wanted to stay long enough to try a particular case and to have his
federal retirement vest. He told 76 Elston stated that he assumed the
sensitivity of the matter had to do with the fact that Graves’s brother
was a congressman from Missouri. 109 us that the Department denied his
request to remain as U.S. Attorney long enough to accomplish these
objectives. Graves told us he called Senator Bond’s Chief of Staff in
Washington, who was fairly new at that job and was an old friend of
Graves. According to Graves, the purpose of the call was two-fold: to find
out if his removal was related to the in-state Chief of Staff’s call to
him 18 months before and to request more time to try a pending murder
case. Graves said the Washington Chief of Staff told him that the
Department was claiming that Graves was removed because of poor
performance. Graves said he responded that the Department had told him the
“exact opposite” when he was told to resign and that he believed his
removal was caused by Senator Bond’s in-state Chief of Staff. The
Washington Chief of Staff said he would look into it. Graves said that
when the Washington Chief of Staff called him back, he told Graves that
Bond “went to bat” for him to extend his stay as U.S. Attorney, but
the Department refused. On January 24, 2006, Bartling, who by then had
started his new job at Treasury, e-mailed Elston to inform him that Graves
had called Senator Bond’s Washington Chief of Staff to say that he was
told that Bond’s office wanted him out “because Bond wanted new blood
in the post.” In the e-mail, Bartling asked who called Graves and “what
happened to Plan B.” Both Bartling and Elston told us that they did not
recall what Bartling’s reference to “Plan B” meant. Bartling said
that it was his “guess” that Plan B referred to using the recent
ethics allegations lodged against Graves as the basis for the Department’s
removing Graves on its own initiative rather than attributing his removal
to Senator Bond’s request that Graves be removed. Elston told us he was
never able to confirm that Graves was told that Bond wanted him removed,
and Elston suspected, based on information he said he gleaned from
Goodling and Klingler, that Graves “was just making a right-on guess”
and had called the Senator’s office to try to confirm his suspicions
that Bond was behind the request for his resignation.77 77 Elston told us
he checked with Goodling and Klingler only to learn what Graves had been
told by Battle. Elston said he did not ask them the real reason for Graves’s
removal because he thought he knew the answer. Elston said that he engaged
in only limited efforts to ascertain what Graves was told because at the
time he was being courted by Bond’s staff to replace Graves as U.S.
Attorney for the Western District of Missouri. Elston said he ultimately
withdrew his name from consideration for the U.S. Attorney position
because he had only recently become the Deputy Attorney General’s Chief
of Staff and thought it too soon to leave the post. 110 D. Department
Comments About Graves’s Resignation Aside from Sampson’s January 9,
2006, e-mail to Miers recommending that Graves and several other U.S.
Attorneys be removed, we found no documentation memorializing the request
for Graves’s resignation or the reasons for it. Sampson initially told
us that he could not “really remember” why Graves was placed on the
January 9 list or why he was asked to resign 2 weeks later. He said he did
not recall playing any role in asking for Graves’s resignation. Even
after reviewing his January 19 e-mail asking Battle to call him about
Graves, Sampson said that all he remembered about Graves’s resignation
was Goodling coming into his office and saying, “Graves has to go.”
Sampson stated that, based on what Goodling said, his perception was that
Margolis had made the determination that Graves should resign as a result
of an OPR or OIG investigation In Goodling’s testimony before the House
Judiciary Committee in May 2007, she denied Sampson’s assertion that she
handled the request for Graves’s resignation without Sampson’s
guidance. Goodling said she recalled seeing Graves’s name on Sampson’s
January 2006 removal list. She said she thought that Graves was one of
nine U.S. Attorneys who had been asked to resign in 2006 until she heard
Sampson refer to only eight U.S. Attorneys during a meeting with the
Attorney General in January 2007. Moreover, Goodling stated that she did
not recall instructing Battle to ask for Graves’s resignation. However,
she said that if she had directed Battle to call Graves to request his
resignation, “it would have been at Mr. Sampson’s request. I wouldn’t
have had that kind of authority.” Margolis also disputed Sampson’s
supposition about Margolis’s role in Graves’s removal. Margolis is the
career Department official responsible for the referral (typically to the
OIG or OPR) of misconduct allegations lodged against U.S. Attorneys and
other senior Department officials. Margolis told us that Graves was not
the subject of a misconduct finding by either the OIG or OPR at the time
and that he did not initiate a request for Graves’s resignation.
Moreover, Margolis told us that neither Sampson nor Goodling consulted him
on Graves’s removal and he knew nothing about it until after the
circumstances surrounding Graves’s resignation were made public in the
spring of 2007. According to Margolis, when the Department has sought the
resignation of a U.S. Attorney based on misconduct (usually upon
completion of an OIG or OPR investigation resulting in a misconduct
finding), the practice has been for Margolis to brief Sampson; for Sampson
to inform the Attorney General and to call the White House Counsel’s
Office to explain the contemplated action in order to ensure that the
White House would be prepared to fire the U.S. Attorney in the event he
declined to resign voluntarily; and then for Margolis to call the U.S.
Attorney and request his resignation. Sampson testified that it 111 was
his “perception” that this process was followed in Graves’s case.
However, Margolis was not involved in the process and neither briefed
Sampson (or Goodling) on any alleged misconduct by Graves nor called
Graves to request his resignation. Moreover, unlike the other Department
requests for U.S. Attorney resignations during Sampson’s tenure - each
of which Sampson recalled discussing with the White House Counsel’s
Office - Sampson said he had no recollection of discussing the Graves
matter with the White House Counsel’s Office. Instead, he surmised that
the appropriate White House contacts were handled by Goodling. McNulty,
who was Acting Deputy Attorney General at the time, testified before the
House Judiciary Subcommittee that he was not consulted about Graves’s
removal. Former Attorney General Gonzales said that he would have expected
a Department request for the resignation of a U.S. Attorney to have been
cleared with him. Gonzales told us he “can’t imagine it didn’t
happen.” He said, “I’m sure I was told and I don’t remember.”
However, he stated that he had no recollection of being consulted about
Graves’s removal. During his congressional testimony, Sampson maintained
that he had almost no memory of why he placed Graves on the January 9 list
or why Graves was asked to resign 2 weeks later. When congressional
investigators asked if Associate White House Counsel Klingler would have
approved the dismissal of Graves, Sampson replied: “I don’t remember.
I don’t remember specifically. The general practice would have been to
check with the counsel, not an associate counsel.” However, 5 months
later, when we asked Sampson whether Klingler played a role in Graves’s
removal, Sampson told us, “And that’s another thing that I do remember
is that Klingler was the person that was responsible for this in the White
House Counsel’s Office and that he was speaking with Senator Bond’s
people.” Sampson also told us he understood that Senator Bond “was not
happy with Graves and wanted him out.” This was the first time Sampson
acknowledged the existence of pressure by Bond’s office playing any role
in Graves’s resignation. III. Analysis At the outset, we note that our
analysis of Graves’s removal was hindered because we were unable to
interview Associate White House Counsel Klingler, who our investigation
revealed was closely involved with Senator Bond’s staff concerning
Graves’s removal, and Goodling, who instructed Battle to call Graves
after she had told Sampson “Graves has got to go.” In addition, the
White House declined to provide any internal documents relating to the
removal of the U.S. Attorneys, including Graves. 112 We found no evidence
to support the claim that Graves was asked to resign because of OIG and
OPR investigations into the allegations made against him. In fact, at the
time Graves was asked to resign, the internal investigations of Graves
were ongoing and no misconduct findings had been made. Moreover, neither
McNulty nor Margolis - the two senior Department officials who normally
would have been involved in a decision to remove a U.S. Attorney for
misconduct - were consulted about Graves’s removal. Margolis said he was
neither aware of the resignation request to Graves nor involved in the
decision to seek it. In addition, in his interview with us Sampson
acknowledged that as a “general philosophy” he would await the
completion of an OPR or OIG investigation before recommending the removal
of a U.S. Attorney. Yet, the OIG and OPR investigations were ongoing at
the time Battle was instructed to seek Graves’s resignation, and no
misconduct had been substantiated. In fact, neither the OIG nor OPR
ultimately concluded that Graves had committed misconduct. Moreover, if
Sampson had recommended to the White House that Graves be removed based on
the mere existence of the OIG and OPR investigations, such action would
have been contrary to existing Department practice and his claimed “general
philosophy.” We do not believe, however, that the ongoing OPR and OIG
investigations were the reason for Graves’s removal. Rather, the
evidence indicates that Graves was instructed to resign because of
complaints to the White House Counsel’s Office by Senator Bond’s
staff. Although Sampson initially professed not to recall why Graves was
removed, he eventually told us that Associate White House Counsel Klingler
was “speaking with Senator Bond’s people,” and that “Bond was not
happy with Graves and wanted him out.” Moreover, the decision to remove
Graves came within a month after overtures from Bartling, Senator Bond’s
legal counsel, to Elston to keep Senator Bond’s staff’s interest in
removing Graves a secret. E-mail records also show that the day Battle
called Graves and directed him to resign, Bartling expressed concern that
Graves had learned from someone at the Department that Bond was
responsible for his removal. It remains unclear whether Sampson or
Goodling was the conduit for pressure from Senator Bond’s staff or the
White House for Graves’s removal. Sampson claimed little recollection
about the matter, other than mentioning some controversy surrounding
Graves and Goodling’s pronouncement that “Graves has to go.” Sampson
suggested that Goodling essentially handled Graves’s resignation on her
own initiative without his guidance or approval. However, we find it
difficult to credit that assertion in light of the fact that Sampson
included Graves on the January 9, 2006, list of U.S. Attorneys to be
removed that he sent to Miers, and that Sampson sent an e-mail to Battle
on January 19 asking to discuss Graves. Shortly thereafter, on January 24,
113 Battle called Graves and asked for his resignation. Moreover, in her
appearance before Congress, Goodling disputed Sampson’s testimony about
her role in forcing Graves to resign. Goodling testified that she would
only have instructed Battle to request Graves’s resignation if Sampson
had told her to do so. Goodling also claimed little recollection of Graves’s
removal other than that there were misconduct investigations of him
ongoing at the time. Goodling was not asked about the role the White House
played in Graves’s removal, however, and we were not able to question
Goodling about this (or any other) subject because she refused to be
interviewed by us. Regardless of whether Sampson or Goodling was
responsible for Battle’s call to Graves, we believe the evidence
indicates that the friction between Senator Bond’s staff and the staff
of Graves’s brother, a Republican congressman from Missouri,
precipitated Graves’s removal. Both Graves and Bartling told us that a
member of Bond’s staff was irate that Graves refused to become involved
in a dispute between his brother’s staff and Bond’s staff. We find it
extremely troubling that the impetus for Graves’s removal as U.S.
Attorney appears to have stemmed from U.S. Attorney Graves’s decision
not to respond to a Bond staff member’s demand to get involved in
personnel decisions in Representative Sam Graves’s congressional office.
We also believe that Sampson should have more closely scrutinized what
Associate White House Counsel Klingler told him about why the White House
decided to remove Graves. At the very least, Sampson should have discussed
the basis for Graves’s removal with McNulty and Gonzales. We found no
evidence that he did so. He also did not discuss the decision to remove
Graves with Margolis, notwithstanding Sampson’s later claim that it was
his “perception” that Margolis had made the determination that Graves
should be removed as a result of an OPR or OIG investigation. In fact,
that was not true. In addition, at the time Sampson should have at the
very least determined the reasons for directing Graves to resign to ensure
that Graves’s removal was not based on improper political reasons.
Moreover, no one discussed with Graves Senator Bond’s alleged concerns
about him. It also appears that no one considered whether Graves was an
effective U.S. Attorney before seeking his removal. We believe the way the
Department handled Graves’s removal was inappropriate. Although U.S.
Attorneys serve at the pleasure of the President, it is the Department’s
responsibility to protect its independence, and the independence of
federal prosecutors, by ensuring that otherwise effective U.S. Attorneys
are not removed for improper political reasons. The fact that the impetus
for Graves’s removal appears to have stemmed from his decision not to
intervene in a personnel dispute between Senator Bond’s staff and staff
in Representative Sam Graves’s office is a disturbing commentary on the
Department of Justice’s support for U.S. Attorneys. 114 We also believe
that the process that resulted in Graves’s forced resignation was
troubling. As noted above, although Sampson claimed that the pending OIG
and OPR investigations may have played a role in the decision to remove
Graves, no one consulted with Margolis, the Department official
knowledgeable about the allegations and the investigations, to determine
the status of those investigations. Moreover, even after the removal no
one in the Department accepted responsibility for the decision to remove
Graves, with each senior official claiming that others must have made the
decision. Just as troubling, according to Sampson’s and Gonzales’s
recollection, it does not appear that anyone consulted with the Attorney
General about the decision to tell a U.S. Attorney to resign. If true,
that is a stunning example of lack of oversight or knowledge by the
Attorney General about important personnel matters regarding a high-level
Department official. In sum, we believe the manner in which the Department
handled Graves’s removal was inappropriate. Although U.S. Attorneys
serve at the pleasure of the President and can be removed for no reason,
the Department should ensure that otherwise effective U.S. Attorneys are
not removed because of an improper reason. The evidence indicates that the
likely reason for Graves’s removal was pressure from the office of
Senator Bond. While U.S. Attorneys are often sponsored by their state
Senators, when they take office they must make decisions without regard to
partisan political ramifications. To allow members of Congress or their
staff to obtain the removal of U.S. Attorneys for political reasons, as
apparently occurred here, severely undermines the independence and
non-partisan tradition of the Department of Justice. Dec 2001 Jan 2002 Jun
2002 Jul 2002 Dec 2004 Jan 2005 Feb 2005 Mar 2005 Jan 2006 Feb 2006 Mar
2006 Apr 2006 May 2006 Jun 2006 Jul 2006 Aug 2006 Sep 2006 Oct 2006 Nov
2006 Dec 2006 Jan 2007 Feb 2007 Jun 2007 H.E. "Bud" Cummins
Timeline Dec 20, 2001 Cummins is confirmed by the Senate as the U.S.
Attorney, Eastern District of Arkansas Jun 2002 Griffin Events and Other
DOJ Actions Dec 30, 2004 An item in an Arkansas tabloid states that
Cummins said that “it would not be shocking” for him to leave before
the end of President Bush’s second term Mar 2, 2005 Cummins is included
on Sampson's first removal list Mar 5, 2005 - Mar 20, 2005 Griffin learns
from White House Political Affairs Director Taylor that Cummins may be
removed Mar 22, 2005 Rove suggests to Miers that Griffin replace Cummins
Mar 30, 2005 Griffin accepts a job as White House Deputy Director of
Political Affairs Jan 9, 2006 Griffin is listed as a potential replacement
for Cummins on the second removal list Sampson sends to the White House
Mar 2006 - May 2006 Miers asks Sampson to find a place for Griffin Jun 13,
2006 The White House requests Griffin’s pre-nomination paperwork Jun 14,
2006 Battle tells Cummins to resign Aug 16, 2006 The Department learns
that both Arkansas Senators might oppose Griffin’s nomination Sep 13,
2006 Sampson proposes to Miers using the AG’s interim appointment
authority to bypass Senate confirmation Sep 28, 2006 Griffin begins detail
as Special AUSA in the Eastern District of Arkansas Dec 19, 2006 Sampson
again proposes using the AG’s interim appointment authority to bypass
Senate confirmation Dec 20, 2006 Cummins leaves office; Griffin is sworn
in as Interim U.S. Attorney for the Eastern District of Arkansas Feb 15,
2007 Gonzales asks Senator Pryor to submit other names for nomination as
U.S. Attorney Feb 15, 2007 Griffin announces he will not seek nomination
for U.S. Attorney Jun 1, 2007 Griffin leaves office Jun 2002 Cummins
Events and Actions Dec 13, 2006 - Dec 15, 2006 Gonzales and Senator Pryor
discuss Griffin's appointment 115 CHAPTER FIVE H.E. “BUD” CUMMINS I.
Introduction This chapter examines the removal of H.E. “Bud” Cummins
III, the former United States Attorney for the Eastern District of
Arkansas, and his replacement by Timothy Griffin in December 2006.78 We
also discuss the Department’s response to congressional concerns about
Griffin’s appointment, including the representations made about the
reasons for Cummins’s removal, and whether the Department intended to
bypass the normal Senate confirmation process by appointing Griffin as the
Interim U.S. Attorney after Cummins’s removal. A. Cummins’s Background
Cummins graduated from the University of Arkansas Law School in Little
Rock in 1989. He served as a law clerk in the Eastern District of
Arkansas, first for U.S. Magistrate Judge John Forster, Jr. from 1989 to
1991, and then for U.S. District Judge Stephen M. Reasoner in 1991.
Following his clerkships, Cummins started a private law practice in Little
Rock in 1992, where he remained until 1995. He unsuccessfully ran for an
Arkansas seat in the U.S. House of Representatives during 1995 and 1996.
Between 1997 and 1998, Cummins was the Chief Legal Counsel to Arkansas
Governor Mike Huckabee. In 1998, he returned to the private sector to
resume a private law and lobbying practice. In 2000, Cummins served as a
counsel to the Bush-Cheney campaign. Cummins said that early in the 2000
Bush campaign he worked closely with Arkansas Senator Tim Hutchinson and
made it known that if Governor Bush won the election he would seek
Hutchinson’s support for the U.S. Attorney nomination for the Eastern
District of Arkansas. In early 2001, Hutchinson forwarded Cummins’s name
to the White House recommending him for that position. On November 30,
2001, Cummins was nominated by the President to be the U.S. Attorney for
the Eastern District of Arkansas. He was confirmed by the Senate and took
office on December 20, 2001. 78 As we discuss in more detail below,
Griffin served as a political appointee in the Department’s Criminal
Division from 2001 to 2002, and he was detailed for 9 months as a Special
Assistant U.S. Attorney to Cummins’s District. Griffin also served as
Research Director for the Republican National Committee before the 2004
election, and in March 2005 began working at the White House as Deputy
Director of the Office of Political Affairs. 116 B. The EARS Evaluations
of Cummins’s Office In 2002 and 2006, EARS teams conducted evaluations
of Cummins’s office. Both evaluations described Cummins as highly
regarded by the judiciary, law enforcement, civil client agencies, and
office personnel. The 2006 evaluation reported that the senior management
team, led by Cummins, “effectively managed the office’s operations and
personnel.” The report also stated that the office had “established
strategic goals that were appropriate to meet the priorities of the
Department and the needs of the District.” The evaluators found that
Cummins was involved in the day-to-day management of the office and was
active in Department of Justice matters, serving on various Attorney
General Advisory Committee subcommittees. Cummins also received high marks
in the EARS evaluation for the office’s anti-terrorism, anti-drug, and
reduction of gun violence programs. C. Cummins’s Status on the Removal
Lists Cummins was 1 of 14 U.S. Attorneys whom Sampson identified for
removal on the first list he supplied to the White House on March 2, 2005.
As noted in Chapter Three, that list characterized those identified for
removal as “weak U.S. Attorneys who have been ineffectual managers and
prosecutors, chafed against Administration initiatives, etc.” Cummins’s
name remained on every removal list until his resignation in December
2006. D. Reasons Proffered for Cummins’s Removal We found that
Department officials proffered conflicting reasons for Cummins’s
removal. Sampson told congressional investigators and us that Cummins’s
name appeared on the March 2005 list because he believed that Cummins was
an underperforming U.S. Attorney. However, in McNulty’s February 6,
2007, testimony before the Senate Judiciary Committee, McNulty stated that
Cummins was not removed for performance reasons but was removed because
the White House wanted to give Griffin a chance to serve as U.S. Attorney.
The chart that Goodling prepared for McNulty’s closed Senate briefing
stated that because Cummins had completed his 4-year term as U.S. Attorney
and had indicated he would not serve out his entire second 4-year term,
the Department worked on developing a replacement plan. In McNulty’s
closed briefing to members of the Senate Judiciary Committee on February
14, 2007, he stated that Cummins had said publicly that he was thinking of
moving on, and McNulty added that it seemed appropriate to give Griffin a
chance to serve as U.S. Attorney. In March 2007, however, in response to
congressional document requests concerning the U.S. Attorney removals, the
Department publicly 117 released e-mail between Sampson and White House
Political Affairs Director Sara Taylor in which Taylor wrote that Cummins
was removed because he was “lazy.” When Cummins announced his
resignation in December 2006, Arkansas Senators Mark Pryor and Blanche
Lincoln publicly expressed concern that Cummins was improperly removed to
make way for Griffin and that the Administration intended Griffin’s
appointment to bypass the Senate confirmation process. In the remainder of
this chapter, we discuss Cummins’s performance, the reasons for his
removal, and Griffin’s appointment. We then address whether the
appointment of Griffin as Interim U.S. Attorney was intended to bypass the
normal Senate confirmation process. II. Chronology of Events Related to
Cummins’s Removal A. Cummins’s Performance 1. Sampson’s Statements
Sampson told us that he could not recall whether he learned anything
specific about Cummins’s performance as U.S. Attorney between 2001 and
2005 that caused him to indicate that Cummins was a “weak U.S. Attorney”
on the March 2, 2005, list of U.S. Attorneys Sampson sent to White House
Counsel Miers. Sampson told us that he did not perceive Cummins in a
positive light even at the time of Cummins’s nomination as U.S.
Attorney. Before coming to the Department, Sampson had served in the White
House Office of Presidential Personnel and in the White House Counsel’s
Office. Sampson said that he had reviewed Cummins’s résumé in 2001
when Cummins was going through the nomination process. He thought Cummins
was not particularly distinguished and was unsuitable for nomination as
U.S. Attorney. Sampson also stated that because presidential nominations
are subject to the political process and home-state politicians exercised
a lot of power over nominations, the strongest candidate was not always
selected. Sampson acknowledged that the information he gained from Cummins’s
nomination process colored his view of Cummins even after he became the
U.S. Attorney. Sampson said he perceived Cummins to be mediocre and said
he did not think he was alone in that perception, commenting that he
thought Department leadership also perceived Cummins to be mediocre.
However, as described below, we were unable to find any evidence that
Sampson discussed Cummins’s performance with any Department officials
prior to identifying him for potential removal in March 2005. 118 2.
Department Managers’ Statements None of the Department leaders we
interviewed said they recalled discussing Cummins’s performance with
Sampson. Former Deputy Attorney General Comey told us that he did not
think Cummins ever “crossed his radar screen” while he was Deputy
Attorney General. Associate Deputy Attorney General David Margolis said
that he did not believe he had any contact with Cummins after he
interviewed Cummins prior to his nomination. Margolis stated that during
the subsequent 4 years he had never heard anything bad about Cummins,
either directly or indirectly. Paul McNulty, who succeeded Comey as Deputy
Attorney General in November 2005, told us that he did not know Cummins
very well and did not have an opinion about his performance. McNulty also
stated during his Senate Judiciary Committee hearing that nothing stood
out in his mind concerning any issues with Cummins’s performance as U.S.
Attorney. McNulty also testified that he did not consider Cummins to be in
the same category as the other U.S. Attorneys removed in December 2006 in
that the others were removed for performance-related reasons while Cummins
was told to resign so that another candidate, Tim Griffin, could serve as
the U.S. Attorney. McNulty’s Chief of Staff Michael Elston also told us
he was unaware of any concerns about Cummins’s performance as U.S.
Attorney. Former EOUSA Director Mary Beth Buchanan, who also served as the
Chair of the Attorney General’s Advisory Committee from 2003 to 2004,
told us that she could not assess Cummins’s performance because Cummins
had a low profile. She said she did not have any negative information
about Cummins, but also did not know of anything exceptional about Cummins’s
work in his district either. Buchanan said, however, that it was difficult
for certain U.S. Attorneys to stand out when their districts did not have
the same type of crime as larger districts. EOUSA Director Michael Battle,
who became Director of EOUSA in June 2005, told us that he was not aware
of any problems or dissatisfaction within the Department concerning
Cummins’s performance. Rather, Battle stated that he and EOUSA Acting
Deputy Director Natalie Voris considered Cummins to be one of the top five
U.S. Attorneys. Battle said that Cummins was one of the easiest U.S.
Attorneys to work with, and Voris told us that Cummins was “a
charismatic guy who cared about his district.” Attorney General Gonzales
told us that he visited Cummins’s district in the fall of 2005 and
thought Cummins was “a nice guy.” Gonzales said he could not recall
being aware of any concerns about Cummins. 119 B. Cummins’s Removal and
Griffin’s Appointment 1. Griffin’s Background J. Timothy “Tim”
Griffin graduated from Tulane University Law School in 1994 and began his
legal career at a private law firm in New Orleans. Between 1995 and 2000,
he worked at a series of legal jobs in Arkansas and in Washington, D.C.
Griffin was a local prosecutor in Pine Bluff, Arkansas; an Associate
Independent Counsel in the investigation of former Housing and Urban
Development Secretary Henry Cisneros; and a Senior Investigative Counsel
on the Campaign Finance Investigation run by the House Committee on
Government Reform. Griffin also joined the U.S. Army Reserve Judge
Advocate General Corps in 1996 as a First Lieutenant and was subsequently
promoted to the rank of Major. In 1999, Griffin became Deputy Research
Director at the Republican National Committee (RNC) for the 2000
presidential campaign. Griffin told us that in 2001 he had expressed
interest in becoming U.S. Attorney in the Western District of Arkansas,
but Senator Hutchinson decided to recommend Thomas Gean for that position.
In March 2001, Griffin obtained a political appointment as a Special
Assistant to the Assistant Attorney General for the Criminal Division.
Griffin was detailed from the Department of Justice Criminal Division to
the U.S. Attorney’s Office in the Eastern District of Arkansas as a
Special Assistant United States Attorney (SAUSA) from September 2001 to
June 2002. Griffin was a SAUSA in the Eastern District when Cummins became
the U.S. Attorney there in December 2001. After finishing his SAUSA detail
in June 2002, Griffin returned to the Republican National Committee as
Research Director and Deputy Communications Director. In early 2004 while
working at the Republican National Committee, Griffin again sought the
nomination for U.S. Attorney in the Western District of Arkansas.79
Griffin said that Congressman John Boozman, who was the senior Republican
in Arkansas’s congressional delegation, submitted Griffin’s name to
the White House along with three other candidates for this position. In
February 2004, a panel of Department of Justice and White House officials,
including Sampson, Margolis, White House Liaison David Higbee, and
Associate White House Counsel Grant Dixton interviewed Griffin. Sampson
told us that Griffin was the panel’s first choice, but Griffin withdrew
from consideration and the panel chose Robert Balfe.80 Griffin told us
that he 79 The U.S. Attorney in this district, Thomas Gean, had resigned
in February 2004. 80 On June 1, 2004, the White House nominated Balfe to
be the U.S. Attorney, and he was confirmed on November 21, 2004. 120
withdrew his name from consideration after his interview because he knew
that Karl Rove and other Republican Party officials wanted him to continue
to work on the 2004 presidential campaign. Griffin said he also agreed to
withdraw because he knew his nomination was unlikely to move forward since
it was an election year.81 2. Griffin Learns Cummins’s Name is on the
Removal List According to both Cummins and Griffin, the two were on
friendly terms after Griffin completed his detail in the Eastern District
of Arkansas U.S. Attorney’s Office in 2002. Cummins told us that as a
SAUSA Griffin had done a good job as the office’s Project Safe
Neighborhoods coordinator. In August 2002, shortly after Griffin left the
U.S. Attorney’s Office, Cummins wrote Griffin a laudatory letter
thanking him for his service. Cummins said that after Griffin left the
office, he was very good about staying in touch, and a review of Cummins’s
e-mail traffic shows numerous friendly e-mails between Griffin and Cummins
throughout 2004 into 2005. Cummins told us that by December 2004 he had
begun to consider the possibility of resigning as U.S. Attorney if the
right opportunity presented itself, but he had no firm plans to leave at
that time and he was not actively seeking other employment. On December
30, 2004, the Arkansas Times, a weekly free paper self-described as “Arkansas’s
Newspaper of Politics and Culture,” carried a small item in its “Insider”
section noting that Cummins had told a reporter that with four children to
put through college, it would not be shocking for him to leave before the
end of President Bush’s second term. In December 2004, Griffin left the
Republican National Committee and in January 2005 began work under a
3-month consulting contract. Griffin said he spent the 3 months planning
his upcoming April 2005 wedding and trying to figure out what his next job
would be. Griffin said that although he really wanted to work at the White
House, he also explored the possibility of obtaining a political
appointment to the Department of Justice in which he would then be
detailed to lead a Project Safe Neighborhoods initiative in southwestern
Arkansas, under the jurisdiction of the U.S. Attorney’s Office for the
Western District of Arkansas and recently confirmed U.S. Attorney Balfe.
Such an arrangement would have permitted Griffin to be a Department
employee and to remain in Arkansas. In February 2005, Sara Taylor became
the Director of Political Affairs at the White House, reporting directly
to Karl Rove. Taylor began looking for 81 Associate White House Counsel
Dixton, who was on the panel that interviewed Griffin, told us that
although Griffin did extremely well during the interview, Congressman
Boozman did not support Griffin because Boozman felt strongly that Balfe
was the better candidate based on his extensive prosecutorial experience
in Arkansas. 121 someone to become her deputy, and Taylor and Griffin knew
each other from the presidential campaign. According to Griffin, in March
2005 he began discussing with Taylor the possibility of becoming Deputy
Director of Political Affairs at the White House. On March 2, 2005,
Sampson provided to White House Counsel Harriet Miers his first list of
U.S. Attorneys to be removed. Sampson described 14 U.S. Attorneys on the
list as “weak, ineffectual” or as having “chafed against
administration initiatives.” Cummins was 1 of the 14. Taylor told us
that shortly after she began serving as White House Director of Political
Affairs, she became aware that the White House was considering replacing
U.S. Attorneys. Taylor said that Miers and others in both the White House
Counsel’s Office and the Department of Justice had discussed the idea
that the beginning of the President’s second term provided an
opportunity to replace some of the U.S. Attorneys. Griffin told us that in
mid-March 2005 he learned from Taylor that Cummins was on a list of U.S.
Attorneys the White House was considering replacing. Griffin said that
even prior to formally being hired by the White House as Deputy Political
Director and placed on the White House payroll, he attended the “Directors”
meetings at the White House. After one of these meetings, Taylor showed
him a list of U.S. Attorneys who were going to be asked to resign.82
According to Griffin, Cummins’s name was on the list. Griffin stated
that Taylor told him she did not know why Cummins was on the list, but
Griffin said he speculated to Taylor that it was because Cummins had lost
his sponsor when Senator Tim Hutchinson lost his re-election bid in 2002.
3. Griffin Expresses Interest in the U.S. Attorney Position Griffin said
that in addition to the possibility of becoming White House Deputy
Director of Political Affairs, he was also interested in becoming an
Associate White House Counsel. Griffin told us that he met with Miers
sometime in March 2005 to discuss working in the White House Counsel’s
Office. However, according to Griffin, he did not think he had the
credentials to be considered for an Associate White House Counsel
position. 82 It is unclear why Griffin was attending these meetings.
According to Griffin, Taylor had offered him the Deputy Director of
Political Affairs position in February 2005, but he told her he could not
begin until after his wedding in Arkansas in early April. Taylor insisted
she needed him to begin immediately, so as a compromise Griffin said he
volunteered a few days a week acting as Taylor’s Deputy when he was in
Washington. Griffin said that the Directors meetings were regular morning
meetings called by Rove and attended by the Directors and Deputies of the
White House offices under Rove’s supervision, such as the Office of
Political Affairs and the Office of Intergovernmental Affairs. 122 Griffin
said that he also knew before he met with Miers that the White House
wanted to replace Cummins. In the course of their conversation, Miers
asked him what he wanted to do with his career, and she told him that the
position of U.S. Attorney for the Eastern District of Arkansas might
become vacant. She asked him if that was something he would be interested
in. Griffin told Miers that his goal at the time was to work in the White
House, but he also said that he wanted to be U.S. Attorney in the future.
Griffin said that Miers expressed the concern to him that he might have
difficulty becoming a U.S. Attorney after having worked for the White
House Office of Political Affairs. A review of the limited e-mail traffic
that the White House provided to us during this investigation shows that
Miers, Rove, and Taylor discussed employment options for Griffin in late
March 2005. In an e-mail exchange dated March 22, 2005, Miers informed
Rove that among the options she had discussed with the White House
Presidential Personnel Office was to place Griffin in a political slot in
one of the two Arkansas U.S. Attorney’s Offices, or to have Griffin
replace the Deputy Director of the Office of Legal Policy at the
Department of Justice. Rove responded, “What about him for the U.S.
Attorney for the Eastern District of Arkansas?” Miers replied to Rove
that it was “definitely a possibility” because the U.S. Attorney there
was going to be replaced. In the March 2005 e-mail, Miers also wrote that
she and Griffin had discussed Griffin’s desire to someday become U.S.
Attorney, but Griffin told her he wanted to work at the White House in the
immediate future. Miers wrote that Griffin told her that he knew the U.S.
Attorney position required Senate confirmation and could take time, and
Griffin was seeking more immediate employment because he was going to be
married soon. Rove forwarded his e-mail exchange with Miers to Taylor.
Taylor responded, “My fear is they end up putting him [Griffin] at
Justice (which he does not want to do); it’s a year before he’s made
U.S. Attorney, if ever.” In another e-mail dated March 24, 2005, Taylor
wrote to Rove that Griffin “would love to be U.S. Attorney - he’d love
to come here in the meantime.” At the end of March 2005, Griffin decided
to accept the offer to become Deputy Director of Political Affairs at the
White House.83 Griffin said that Taylor made it clear to him when he took
the job that he had to commit to staying at the White House until after
the November 2006 election unless the Arkansas U.S. Attorney position
opened up before then. Griffin began working at the White House on April
14, 2005. 83 Griffin said that as Deputy Director of Political Affairs he
primarily focused on hiring political appointees throughout the Executive
Branch, with the exception of the appointment of U.S. Attorneys, which was
handled by the White House Counsel’s Office. 123 Cummins said that
throughout 2005 he and Griffin had numerous conversations about Griffin
becoming U.S. Attorney when Cummins left, although Cummins said he had
always assumed that the decision to resign would be his to make. Cummins
told us that he just assumed Griffin would get the job because he was so
well connected politically. Griffin told us that even though he had such
conversations with Cummins, he did not take action to push Cummins to move
on. Rather, Griffin said, “I was laying low.” Griffin also said that
under no circumstances would he have told Cummins that his name was on a
list of U.S. Attorneys the White House was seeking to replace. Griffin
said that to him, Cummins being removed and his becoming U.S. Attorney
were on two separate tracks. Griffin said, “I didn’t know why he was
being fired, but I knew that if he was going to be fired, then I wanted to
be considered for that job.” In August 2005, while still working at the
White House, Griffin was notified that his Army Reserve unit was going to
be mobilized to Fort Campbell, Kentucky. Griffin left the White House for
Fort Campbell in September 2005. Griffin said that before he left he
discussed with Miers his concern that someone else would be appointed U.S.
Attorney before Griffin’s tour of duty ended. Griffin said he had a
distinct recollection that in either August or September 2005 Rove told
him that he and Miers had discussed Griffin’s desire to become U.S.
Attorney, and Rove indicated to Griffin something to the effect that “it
may work out.” Griffin said that while he was on Army Reserve duty
during the fall of 2005, he was in frequent contact with Scott Jennings
(who had replaced Griffin as the White House Deputy Director of Political
Affairs) and others in both the White House and the Department of Justice.
Jennings told us he did not know why Cummins was removed. Jennings also
said he believed Cummins had publicly stated that he was looking for
another job. Jennings said that while it was the White House’s intention
that Griffin would eventually become U.S. Attorney in Arkansas, he did not
believe that Cummins would be removed in order to make that happen. As
noted previously in this report, the initiative to replace U.S. Attorneys
lay dormant for several months after Sampson sent Miers his March 2005
list. Cummins told us that although he had thought he might begin job
hunting by the end of 2005, the First Assistant U.S. Attorney in his
office took early retirement and Cummins felt it was not a good time to be
out of the office actively seeking employment. 124 4. January 2006 Removal
List Identifies Griffin as Cummins’s Replacement On January 9, 2006,
after consulting with Goodling, Sampson sent an email to Miers and Deputy
White House Counsel William Kelley discussing “the remov[al] and
replace[ment] of U.S. Attorneys whose four year terms have expired.”
Sampson provided the names of nine U.S. Attorneys he recommended removing,
along with potential replacement candidates for five of them. As one of
the five replacements, Sampson recommended that Griffin replace Cummins in
the Eastern District of Arkansas. During the fall of 2005 and spring of
2006, while on Army Reserve duty, Griffin had stayed in contact with
Jennings and others in the White House, and with Sampson at the
Department. Sampson told congressional investigators that sometime in the
spring of 2006 Miers asked him about the possibility of Griffin becoming
U.S. Attorney in the Eastern District of Arkansas. Sampson said that since
Cummins was on the list of U.S. Attorneys who might be removed, Sampson
began to move the process forward. Sampson told us that he believes,
however, that the White House would have deferred to the Department if it
had indicated reluctance to remove Cummins. We were unable to find any
documentation reflecting Miers’s inquiry to Sampson in the spring of
2006 about Griffin replacing Cummins. We found one e-mail dated April 10,
2006, in which Griffin informed Sampson that he was going to be sent to
Iraq the following month and asked Sampson, “Is everything still on
track?” Griffin forwarded his résumé to Sampson on April 26, 2006, and
wrote, “Thank you for all your help. I greatly appreciate it.” In an
e-mail dated May 11, 2006, Sampson asked Deputy White House Counsel Kelley
to call to discuss Griffin’s nomination for U.S. Attorney in the Eastern
District of Arkansas. In early June 2006, Griffin sent by e-mail his
résumé and military biography to Associate White House Counsel Richard
Klingler, who was assigned to work on U.S. Attorney and judicial
nominations in the Eighth Circuit, which included Arkansas. Griffin told
us that while he was in Iraq he communicated with Jennings and Rove about
becoming U.S. Attorney when he returned to the United States. According to
Griffin, no one promised him he would be U.S. Attorney when he returned,
although Rove assured him that the White House was at a minimum obliged to
bring him back to the White House because he had been on military leave.
125 5. Griffin’s Nomination Process On June 13, 2006, an administrative
assistant to Miers called EOUSA Acting Deputy Director Natalie Voris to
request pre-nomination paperwork for Griffin for the position of U.S.
Attorney in the Eastern District of Arkansas.84 Voris told us that she
thought there was a mistake because there was no vacancy in Arkansas at
the time. According to Voris, the routine procedure was to forward the
pre-nomination paperwork after candidates had been interviewed by the
Department’s selection panel, and after the White House Judicial
Selection Committee had made its decision about who to recommend to the
President. Voris said the June 13 request from the White House “raised a
lot of red flags in [her] mind” because she had never heard anyone say
that Cummins was leaving, and there had been no panel interviews for the
Eastern District of Arkansas U.S. Attorney position. Voris said she talked
to Goodling, who confirmed that the pre-nomination paperwork should be
filled out for Griffin because Cummins was being asked to resign so
Griffin could take his place. As requested, Voris transmitted Griffin’s
pre-nomination paperwork to the White House on June 13, 2006. Later that
evening, Goodling sent Sampson an e-mail informing him that the White
House had received Griffin’s pre-nomination paperwork. Goodling informed
Sampson that she would direct EOUSA Director Battle to call Cummins the
following day to tell him to resign. E-mail records show that Goodling
kept Sampson informed about the status of Cummins’s resignation and
Griffin’s upcoming nomination. Sampson said that once the President had
approved Griffin to be the nominee on June 21, 2006, all that was left for
the Department to do was to “make it happen.” In her congressional
testimony, Goodling said she advised McNulty in the early spring of 2006
that Griffin would be replacing Cummins at some point, and a June 13
e-mail to Sampson from Goodling states that she had advised the Office of
the Deputy Attorney General that “this was likely coming several months
ago.” McNulty told us that he was aware sometime during the summer of
2006 that Cummins had been asked to move on to make a place for Griffin,
but he said he did not know at the time how Griffin had come to the
Department’s attention. Gonzales told us that he recalled that “the
White House was interested in seeing if we could find a way to get Griffin
in,” and that Griffin was “well 84 Voris said that the pre-nomination
paperwork consists of the candidate’s résumé, a photograph, a White
House data information sheet containing the personal data of the
candidate, and a transmittal memorandum from the Attorney General to the
White House Counsel recommending the candidate for possible presidential
nomination. 126 qualified,” although Gonzales said he could not recall
how he learned that information. Gonzales approved the pre-nomination
paperwork forwarding Griffin’s name to the President on June 13, 2006.
Battle told us that Goodling instructed him to call Cummins, thank him for
his service, and tell him that the Administration wanted to give someone
else the opportunity to serve. Battle said that Goodling also asked him to
determine how much time Cummins would need to move on and to report back
to her his reaction. According to Battle, Goodling did not tell him who
was going to replace Cummins. Battle said he was upset about having to
make the call to Cummins, especially because he had visited Cummins’s
district a few months earlier and had had a great visit. Battle said he
had spent 2 days in the district meeting with Cummins’s management
staff, and said he believed the office was performing at a high level.
However, Battle did not raise any objections or discuss his concerns with
any Department leaders. He made the call to Cummins, as instructed, on
June 14, 2006. Battle said that when he called Cummins, Cummins asked
whether he had done something wrong. Battle responded that he had been
asked to make the call but was not aware of anything and was not in a
position to discuss the matter. Battle said he told Cummins something
along the lines of “U.S. Attorneys serve at the pleasure of the
President and sometimes the Administration wants to go in a different
direction and give someone else the opportunity to serve.” Battle said
that Cummins said he knew he was going to be asked to move on, and was
aware that Griffin would likely replace him. Cummins said Battle told him
he would likely have 60 to 90 days to resign. Cummins told us that
although he had had a few conversations with friends and colleagues about
leaving, he had not done much to seek other employment. Cummins said that
he “had no plan to leave without a plan, and I didn’t have a plan the
day they called me.” Cummins said he assumed that Griffin or someone
else had become impatient after Cummins had indicated to Griffin that he
would resign but had not done so. Cummins said that after the call from
Battle, he began looking for a job in the private sector. a. Allegation
that the Department Intended to Bypass the Senate Confirmation Process One
of the allegations concerning Griffin’s appointment to replace Cummins
was that the Administration intended to bypass the traditional Senate
confirmation process by installing Griffin as Interim U.S. Attorney
pursuant to 28 U.S.C. § 546. As described previously in this report,
prior to its amendment in March 2006 the statute allowed an Interim U.S.
Attorney appointed by the Attorney General to temporarily serve for 120
days, after which the federal district court could appoint an Interim U.S.
Attorney to serve until a new U.S. Attorney was confirmed by the Senate.
The amendment 127 provided that the Attorney General could appoint an
Interim U.S. Attorney to serve indefinitely, or until the Senate confirmed
a new U.S. Attorney. In the next section, we discuss the facts leading to
Attorney General Gonzales’s December 2006 decision to appoint Griffin to
be the Interim U.S. Attorney. b. The Pre-Nomination Process On June 20,
2006, Goodling informed Sampson that Battle had instructed Cummins to
resign. On June 21, the White House’s Judicial Selection Committee voted
in favor of Griffin’s nomination, and the President signed the intent to
nominate Griffin for the upcoming vacancy. According to e-mails exchanged
between Goodling and Griffin in late June and early July 2006, Goodling
notified Griffin that the Department would begin his background
investigation during the week of June 28. However, on July 5, 2006,
Goodling informed Griffin that the investigation had been delayed because
the White House had neglected to contact the Arkansas Senators to inform
them of the intent to nominate Griffin, which was the standard
procedure.85 Griffin responded that “both chiefs of staff [to the
Senators] are my very good friends . . . it could potentially be a mistake
if they were not the first people in each office to hear my name and learn
of movement on my front.” Goodling replied that she had discussed the
matter with Associate White House Counsel Klingler, who told Goodling that
he would make the calls and would reach out to Griffin if they needed his
assistance. According to both Griffin and Cummins, in early July Klingler
called Arkansas Congressman Boozman, the Republican leader of Arkansas’s
congressional delegation, and told him that the White House had decided to
remove Cummins as U.S. Attorney and replace him with Griffin. According to
Cummins, when Boozman’s staff informed the Democratic Senators’
staffs, the news apparently was not well received. Cummins said that Bob
Russell, Senator Pryor’s Chief of Staff, called him to confirm what they
had heard from Boozman’s staff - that Griffin was going to replace
Cummins as U.S. Attorney. Cummins said he explained to Russell that he had
been thinking about leaving, and he told Russell he did not believe it was
in his best interest for Senator Pryor to raise concerns about his
removal. Cummins said he was not embarrassed that he was being removed 85
Goodling’s e-mail informed Griffin that the standard procedure was for
the White House to wait to ask the Department of Justice to send the
pre-nomination paperwork until after the home-state Senators had been
consulted, and she acknowledged that the White House had called the
Department “a little too soon.” According to Sampson, the normal
procedure for nominating U.S. Attorneys was to have a vacancy and then to
solicit candidate’s names from the home-state Senators or from the lead
congressional delegation member in the President’s party. 128 because he
did not have any questions about his performance as U.S. Attorney.
However, he thought it would be enormously embarrassing to the Department
to have to explain that the White House wanted to remove him merely to let
Griffin serve as the U.S. Attorney. In early August 2006, while Griffin
was still in Iraq, the White House arranged for him to speak to Senator
Pryor about his proposed nomination. According to Griffin, the telephone
call did not go well. Griffin said that both Pryor and his Chief of Staff
told Griffin they had concerns about his qualifications to be U.S.
Attorney. Griffin said that although he was filling out the paperwork in
preparation for the nomination process at that time, he was discouraged by
the conversation with Senator Pryor and thought that if worse came to
worst the President might give him a recess appointment as U.S.
Attorney.86 In mid- August, Griffin returned to the United States. c.
Indefinite Interim Appointment Proposed for Griffin Griffin told us that
in August 2006, sometime after he had spoken to Senator Pryor, he learned
that an appointment under the Patriot Act amendment would allow him to
serve as Interim U.S. Attorney indefinitely. Griffin said he had the sense
that was a definite possibility in the face of Pryor’s opposition,
although he said he did not want to have to use that avenue. In August
2006, Sampson, Goodling, and Jennings discussed how to proceed with
Griffin’s nomination in view of Senator Pryor’s opposition. Another
concern was that Griffin was still considered a White House employee when
he returned from Iraq, although Griffin said the White House had no
position open for him at the time. In an e-mail to Sampson on August 18,
Goodling proposed that the Department hire Griffin as a political
appointee and then detail him to the Eastern District of Arkansas as
Interim U.S. Attorney. Goodling said that because Cummins had not yet
resigned, however, she would give him a target date for his resignation,
“particularly if we go this route since it’s a lot faster than the
nom/conf route, obviously.” In the August 18 e-mail exchange, Sampson
and Goodling discussed whether to appoint Griffin to the Criminal Division
or the Deputy Attorney General’s Office, and Sampson wrote that he 86
Griffin said that at this point he was not aware of the March 2006 change
in the law which permitted the Attorney General to appoint an Interim U.S.
Attorney for an indefinite period of time. 129 did not “think it should
really matter where we park him here, as AG will appoint him forthwith to
be [U.S. Attorney].” Scott Jennings told us that he learned from the
White House Office of Legislative Affairs that the Arkansas Senators had
reservations about Griffin, which Jennings characterized as “political
concerns.” Jennings said that the problem with the Senators did not
change his thinking about having Griffin go through the Senate
confirmation process; rather, he said he was wondering what extra measures
would have to be taken to make sure that Griffin’s nomination was
ultimately successful. Sampson and Jennings both told us that the intent
at this time was to have Griffin go through the confirmation process, but
first be appointed Interim U.S. Attorney and, as Jennings put it, “show
the Democratic senators [in Arkansas] he’s up for the job.” Jennings
said they reasoned that if they could get Griffin into the office he could
bolster his credentials and that would demonstrate to the Senators that he
was capable and should therefore be confirmed. Cummins said that by August
2006 he knew that Griffin would not be back in Arkansas until the end of
September. Cummins said he told Griffin that if Griffin abruptly arrived
as Interim U.S. Attorney just after Cummins resigned without having
another job, it would be obvious that the White House had forced Cummins
out, which could pose difficulties for Griffin. Cummins said he proposed
to Griffin that a cleaner transition would be for Griffin to return to the
Eastern District of Arkansas as a Special Assistant U.S. Attorney while
Cummins finalized his plans to return to the private sector. On August 24,
2006, Griffin contacted Jennings about Cummins’s proposal, and Jennings
e-mailed Sampson asking for his opinion about the proposal. Sampson
replied, “I think it’s a great idea and endorse it wholeheartedly.”
On August 24, 2006, the Arkansas Times printed an editorial stating that
Cummins would likely be stepping down in the near future. The editorial
speculated that Griffin would be Cummins’s successor.87 The editorial
also implied Griffin may have participated in voter caging in past
elections, noting:88 He’d likely have to endure some questioning about
his role in massive Republican projects in Florida and elsewhere by which
87 Cummins said he had initiated a conversation about his upcoming
resignation with a reporter for the Arkansas Times, in part because he did
not want his resignation to appear to be shocking and in part because he
was trying to get the word out that he was available for employment in the
private sector. However, Cummins said that he was not the source of the
remainder of the information in the editorial. 88 Voter caging refers to
the practice of sending mail to addresses on the voter rolls, compiling a
list of the mail that is returned undelivered, and using that list to
purge or challenge voters’ registrations on the grounds that the voters
on the list do not legally reside at their registered addresses. 130
Republicans challenged tens of thousands of absentee votes.
Coincidentally, many of those challenged votes were concentrated in black
precincts. Goodling forwarded the article to Sampson and Jennings. We
found no indication that the article raised concerns about Griffin at the
Department or at the White House. By the end of August, the Department
stopped preparing the paperwork for Griffin to go through the formal
presidential nomination and Senate confirmation process. In an e-mail
dated August 30, 2006, Griffin informed an EOUSA staff member that he had
spoken with Jennings and “[H]e doesn’t see any reason to proceed with
the senate paperwork since the appointment will occur the other way.”
Jennings told us that while he did not recall discussing the issue with
Griffin, by August 30 the White House was aware it would not be nominating
Griffin at that time. Jennings said that instead Griffin would be given a
political appointment in the Department so that he could then be detailed
to Little Rock “to wait out Bud Cummins.” In an e-mail dated September
13, 2006, Miers asked Sampson for the “current thinking on holdover U.S.
Attorneys . . . .” Later that day, Sampson provided Miers with another
removal list that included districts where the U.S. Attorney position was
vacant, soon to be vacant, and rumored soon to be vacant. In his e-mail to
Miers, Sampson described Cummins as a “USA in the Process of Being
Pushed Out,” and he described eight other U.S. Attorneys as “USAs We
Now Should Consider Pushing Out.” Sampson noted, “I strongly recommend
that, as a matter of Administration policy, we utilize the new statutory
provisions that authorize the AG to make USA appointments.” Sampson
wrote that by bypassing the Senate confirmation process, “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 cost to the White House.” Sampson told congressional
investigators that his recommendation to use the Attorney General’s
appointment authority in this manner never got any “traction” for any
district other than the Eastern District of Arkansas. Sampson said he did
not recall discussing the recommendation with Attorney General Gonzales at
the time. Gonzales told us that he had no specific recollection of
discussing with Sampson at this time the idea of using his interim
appointment authority to bypass Senate confirmation, and Gonzales said he
would not have supported it. 131 d. Griffin Returns to Arkansas as a
Special Assistant U.S. Attorney Griffin’s military leave ended on
September 26, 2006, and he returned to the White House for 1 day. On
September 28, 2006, he was appointed to a political position as a
Counselor to the Criminal Division Assistant Attorney General and was
immediately detailed to the U.S. Attorney’s Office in Little Rock as a
Special Assistant U.S. Attorney. Griffin told us that because he
considered Cummins to be a friend, he did not want to push him out without
having another job. Griffin said that when Cummins still did not have
another job by October 2006, Griffin asked Cummins to stay until after the
election in November 2006, because Griffin was concerned that if Cummins
left before the election Griffin would be the subject of political
attacks. Cummins said that he had made up his mind to leave sometime in
November, but Griffin asked him to stay until Griffin returned in mid-
December from a long-planned vacation. In mid-October 2006, Sampson
forwarded to Elston, the Deputy Attorney General’s Chief of Staff, the
e-mail Sampson had sent to Miers on September 13 listing the status of
certain U.S. Attorneys recommended for replacement and noting that Cummins
was “in the process of being pushed out.” In an e-mail dated October
17, 2006, Elston responded that he agreed with Sampson’s
recommendations. Elston told us that he did not question Cummins’s
inclusion on the list because he understood that Cummins had indicated he
was going to resign and the Administration had chosen Griffin to take his
place. C. Attorney General Gonzales Appoints Griffin Interim U.S. Attorney
In an e-mail on December 1, 2006, Griffin notified Goodling that Cummins
intended to resign on December 20, 2006. On December 8, a panel composed
of Battle, Margolis, and Goodling interviewed Griffin for the position of
Interim U.S. Attorney. Later that day, Goodling sent an e-mail to Griffin
informing him that the Attorney General intended to appoint him Interim
U.S. Attorney, and she asked Griffin to “keep this information close
hold . . . until we notify the Chief Judge and the Senators of the
Attorney General’s action.” Griffin said that after his interview with
the panel, Goodling informed him that he would be appointed pursuant to
the Patriot Act amendment, which would allow him to serve indefinitely. On
December 13 and 15, 2006, Attorney General Gonzales and Senator Pryor
discussed Gonzales’s intention to appoint Griffin Interim U.S. Attorney.
132 According to Sampson, Pryor had contacted the Attorney General on
December 13 after he learned that Cummins planned to resign on December
20. Gonzales told us that during their conversation on December 15, he
informed Senator Pryor that he was going to appoint Griffin to be Interim
U.S. Attorney to replace Cummins, and he sought to determine whether Pryor
would eventually support Griffin’s nomination. Gonzales said he conveyed
his hope that Senator Pryor would do so, and asked Pryor to meet with
Griffin. Gonzales said that when he informed Senator Pryor that Griffin
was going to serve as Interim U.S. Attorney, he also told Pryor that he
wanted to see how Griffin would perform and that Griffin’s interim
appointment would also give Pryor the opportunity to see how Griffin would
do. According to Gonzales, Pryor agreed to meet with Griffin sometime
after the upcoming holidays.89 D. Public Concerns About Griffin’s
Appointment On December 16, 2006, Griffin forwarded to Goodling an article
that appeared on the front page of the Arkansas Democrat Gazette stating
that Senator Pryor was “irked” by the “surprise notice that ex-Rove
aide [was] named U.S. Attorney.” Goodling responded that the important
thing was that Pryor’s position concerning Griffin was somewhat open and
Griffin had a real opportunity as Interim U.S. Attorney to win Pryor’s
support. On December 18, Goodling forwarded the article to Oprison at the
White House. In an e-mail on December 19, Sampson directed the Department’s
Office of Public Affairs to use talking points he wrote in responding to
press inquiries about the circumstances of Griffin’s interim
appointment. The talking points stated that when a U.S. Attorney vacancy
arises, someone needs to be appointed even if on an interim basis to fill
the vacancy, that Griffin was appointed as the Interim U.S. Attorney
because of the timing of Cummins’s resignation, and that the Department
“hoped that there would be a U.S. Attorney who had been nominated and
confirmed in every district.” Oprison e-mailed Sampson on December 19
that he believed the term “Interim U.S. Attorney” was problematic
because the Arkansas Senators could use Griffin’s interim status to
press for their own nominee rather than supporting Griffin’s nomination.
Oprison also expressed concern that the 89 Sampson also spoke with
Arkansas Senator Blanche Lincoln’s Chief of Staff about Griffin. In an
e-mail dated December 15, 2006, to Goodling and Associate White House
Counsel Chris Oprison, Sampson wrote: “Chris, I think the White House
(you) needs to continue the dialogue with the Senators re our desire to
have the President nominate, and the Senate confirm, Griffin. They think
they smell a rat, i.e., that we are doing an end around of their advice
and consent authority by exercising the new, unlimited AG appointment
authority.” 133 Arkansas Senators were “taking steps to back [the
Department and the White House] into a corner” by refusing to commit to
considering Griffin’s nomination. Sampson responded to Oprison in an
e-mail on the same day, “I think we should gum this to death . . . .”
Sampson suggested that because Griffin’s interim appointment was
technically of unlimited duration, the Department could ask the Senators
to give Griffin a chance and if they still opposed Griffin after a period
of time, the Department could “run out the clock” while appearing to
be acting in “good faith” by asking the Senators for recommendations,
interviewing other candidates, and pledging to desire a Senate-confirmed
U.S. Attorney. Sampson wrote, “our guy is in there so the status quo is
good for us.” Sampson also noted that there was a risk that Congress
would repeal the Attorney General’s appointment authority for Interim
U.S. Attorneys. Finally, Sampson wrote, “I’m not 100 percent sure that
Tim was the guy on which to test drive this authority, but know that
getting him appointed was important to Harriet, Karl, etc.” Sampson, who
later testified that using the interim appointment authority to bypass
Senate confirmation was a “bad idea at the staff level,” told us that
the idea of using this new authority was confined to Griffin and not any
other U.S. Attorney positions. He admitted that he had advocated for more
widespread use of the authority in September 2006, but said he did not
really believe it was practical and Attorney General Gonzales never
seriously considered it. Sampson told us that he was not sure that the
Attorney General would have genuinely considered using the authority even
in Griffin’s case. Sampson said that at the time the Department was
experiencing some pressure from White House Political Affairs Director
Taylor and others at the White House to use the appointment authority for
Griffin in the face of Senator Pryor’s reluctance to commit to
supporting his nomination. Sampson stated that he believed Attorney
General Gonzales was far too cautious and careful and would not support
the idea of bypassing Senate confirmation. Sampson said that at the time
he believed that Gonzales was hopeful that he could persuade Senator Pryor
to support Griffin’s nomination. Sampson said that by late December 2006
or early January 2007, Gonzales had specifically rejected the idea of
using the interim appointment authority to install Griffin indefinitely as
U.S. Attorney, although Sampson said he could not remember exactly when he
and Gonzales discussed the issue. Gonzales told us that he could not
recall a specific discussion with Sampson about use of the interim
authority to bypass the Senate confirmation process. However, Gonzales
said he recalled that Sampson raised the possibility of using the
authority to appoint Griffin and Gonzales opposed it, thinking it was “a
dumb idea.” 134 Oprison told us that he did not think Sampson was
speaking for the Department when he sent the December 19 e-mail suggesting
that “we should gum this death.” Oprison said he did not think there
was a plan to avoid sending Griffin’s nomination to the Senate for
confirmation, although he described it as a very fluid situation. Oprison
said he recalled discussions at the White House about whether they should
seek other candidates or stick with Griffin, but the ultimate decision was
to stick with Griffin. However, several individuals, including Cummins,
told us that Griffin stated openly and repeatedly that he would be in the
office for 2 years, with or without Senator Pryor’s approval, pursuant
to the Attorney General’s interim appointment authority. Balfe, the U.S.
Attorney for the Western District of Arkansas, told us that when he asked
Griffin how he could stay on as U.S. Attorney without Pryor’s approval
of his nomination, Griffin said he was promised he would be U.S. Attorney
for 2 years, whether Pryor approved or not. Balfe said he could not recall
whether Griffin told him about the Patriot Act provision at that time or
if he already knew about it from press accounts, but he said he understood
that Griffin meant he would be in office for more than 120 days. U.S.
Attorney Jane Duke, who was the First Assistant U.S. Attorney in the
Eastern District of Arkansas at the time, told us that when Senator Pryor
began to question Griffin’s credentials, Griffin told her that Pryor did
not have to approve his nomination because Griffin was going to be placed
in office under a little-known provision in the Patriot Act and his
appointment would not expire. Griffin acknowledged to us that he discussed
his potentially indefinite appointment openly and he “probably” said
that he would be U.S. Attorney for 2 years with or without Pryor’s
support. Cummins also told us that around this time he ran into Bob
Russell, Senator Pryor’s Chief of Staff, who asked Cummins if it was
true that the Department intended to keep Griffin in office without Pryor’s
approval. Cummins said he did not confirm Russell’s speculation, but he
did not deny it either because he did not want to lie. On December 20,
2006, Cummins officially resigned as U.S. Attorney and Griffin was sworn
in as the Interim U.S. Attorney. On January 9, 2007, Griffin, accompanied
by Nancy Scott-Finan of the Department’s Office of Legislative Affairs,
met separately with Arkansas Senators Pryor and Lincoln. Scott-Finan told
us that both Senators were upset that Griffin had been appointed Interim
U.S. Attorney in anticipation that he would be nominated for the permanent
position without any prior consultation with them. Scott-Finan said that
Senator Pryor also asked Griffin about allegations that he had
participated in voter caging. Scott-Finan said Griffin “explained [it]
away” by putting it in the context of a “direct mail marketing”
process, and he 135 characterized what the Republican National Committee
had done as checking for bad addresses rather than challenging voters. In
response to Senator Pryor’s statement that by checking for bad addresses
Griffin was laying the groundwork for challenging voters, Griffin told
Pryor that in the end votes were not challenged. In addition, Griffin said
that any decisions to challenge votes were made above his level. Scott-Finan
said that she had the sense that Senator Pryor was not open to considering
Griffin’s nomination. Cummins told us that by January 2007 he had begun
to be concerned that the story he told publicly - that he had been
planning to leave but had agreed to help Griffin transition into the role
of U.S. Attorney - was being questioned in light of the numerous articles
that were published concerning the U.S. Attorney removals in general and
articles about Griffin’s appointment in particular. Cummins, who
characterized his previous responses to such questions as “evasive”,
said he did not want to lie if he was asked directly whether he was fired.
On January 13, the Arkansas Democrat Gazette ran a story quoting Cummins
as saying that the Director of EOUSA had asked him to step down and had
assured Cummins that his removal was not because of his job performance,
but rather because the Administration wanted to give someone else the
opportunity to be the U.S. Attorney. On January 17, Gonzales spoke again
with Senator Pryor about whether Pryor would support Griffin’s
nomination and confirmation. According to Gonzales, Pryor expressed his
concern that the Attorney General was using his appointment authority to
avoid the Senate confirmation process. Gonzales said he pointed out to
Pryor that he could have appointed Griffin for 120 days under the old law
governing the Attorney General’s appointment authority. Gonzales said he
told Pryor that if Pryor decided he could not support Griffin, then the
Administration would solicit other candidates. E. The Attorney General’s
and the Deputy Attorney General’s Testimony On January 18, the day after
Gonzales spoke to Senator Pryor, the Attorney General testified before the
Senate Judiciary Committee that the Department had asked certain U.S.
Attorneys to resign after evaluating their performance, and these changes
were made pursuant to his responsibility to ensure that the Department had
“the best possible person” in each district. Gonzales also testified
that the Administration was fully committed to having a Presidentially
appointed, Senate-confirmed U.S. Attorney in each district. Cummins told
us that he grew concerned when he learned about the Attorney General’s
testimony because it implied that the dismissals were undertaken in order
to improve the management in each office, and he said he 136 “knew damn
well that wasn’t why they were changing out the U.S. Attorney in Little
Rock.” Cummins said that since he had now admitted publicly he had been
asked to leave, he believed the Attorney General’s testimony lumping him
together with the other U.S. Attorneys who had been asked to resign put
Cummins in an embarrassing position. Cummins therefore called McNulty to
express his concerns, and Elston, McNulty’s Chief of Staff, returned
Cummins’s call. This began a series of telephone calls and e-mail
exchanges between Cummins and Elston. Cummins said he expressed concern to
Elston about the accuracy of the Department’s public statements and the
unfairness of the Attorney General’s Senate testimony regarding the need
to improve management in each district, which did not apply to Cummins.
Cummins said he told Elston he was also concerned about the Attorney
General’s statement that the Department was going to nominate and
confirm a U.S. Attorney in every district because Griffin had indicated to
Cummins more than once that he would stay on as Interim U.S. Attorney with
or without Senator Pryor’s support. Cummins said that Elston indicated
to him that there were serious performance-related reasons for the removal
of the other U.S. Attorneys, although they did not discuss specific U.S.
Attorneys. Cummins also said that Elston told him that Griffin would have
to go through the nomination process or resign because the Department
would not agree to let him serve indefinitely as Interim U.S. Attorney.
Elston told us that because he had no reason to believe that performance
was an issue with Cummins, he was sympathetic to Cummins’s concerns
about being categorized as having been removed to improve management in
his district.90 McNulty told us he was also sympathetic to Cummins because
his sense of the situation was not that Cummins was underperforming, but
that the Administration wanted to give Griffin the opportunity to serve as
U.S. Attorney. McNulty said that he discussed Cummins with Sampson and
others during the preparation sessions for his upcoming congressional
testimony, and no one told McNulty there were performance concerns with
Cummins. Therefore, on February 6 when McNulty testified before the Senate
Judiciary Committee, he publicly stated that Cummins was in a separate
category from the other U.S. Attorneys because he was asked to step aside
not for performance reasons but to make way for Griffin.91 90 Elston also
said that when he learned about the Department’s effort to identify weak
U.S. Attorneys and ask them to move on, he distinguished Cummins from the
others because Elston understood that Cummins had said he was planning to
leave but had not yet left. 91 In addition, McNulty later told
congressional investigators that Sampson did not tell him during the
preparation for his Senate testimony that Cummins was put on the list or
(Cont’d.) 137 F. The Department’s Written Response to Congressional
Concerns About Griffin’s Appointment In light of McNulty’s testimony
regarding Cummins and Griffin, on February 8 Senators Harry Reid, Charles
Schumer, Richard Durbin, and Patty Murray wrote to Attorney General
Gonzales to express concern about the circumstances of Cummins’s removal
and Griffin’s appointment. The Senators requested information concerning
issues such as the timing of the decision to appoint Griffin to replace
Cummins and the role Karl Rove played in the decision to appoint Griffin.
The Department responded to the Senators’ letter on February 23, 2007.
Sampson drafted the response, which was signed by Richard Hertling, the
Acting Assistant Attorney General for the Office of Legislative Affairs.
Sampson circulated the draft response to Goodling, McNulty, Elston,
Moschella, Hertling, and Scolinos. The letter was reviewed and edited by
Associate White House Counsel Oprison and returned to Sampson, who had the
final sign-off on the language. The Department’s response made three
affirmative statements: (1) “It was well known as early as December
2004, that Mr. Cummins intended to leave”; (2) “the decision to have
Mr. Griffin replace Mr. Cummins was first contemplated in the spring or
summer of 2006 [and] the final decision to appoint Mr. Griffin . . . was
made on or about December 15”; and (3) “The Department is not aware of
Karl Rove playing any role in the decision to appoint Mr. Griffin.” All
three of these statements were misleading. On March 28, 2007, the
Department informed Senators Leahy and Schumer that its review of
documents collected in response to congressional requests revealed that
the representations made in the Department’s February 23 response were
inaccurate. The Department did not specify the inaccuracies in Hertling’s
letter, but simply noted that the documents the Department had produced
contradicted certain statements in the February 23 letter. With respect to
the first misleading statement - that the Department knew in December 2004
that Cummins intended to leave - Cummins had not announced in December
2004 that he intended to leave. The only indication removed for any
performance-related reasons. Further, Elston told us that Sampson was “in
the room” during McNulty’s preparation session when the group
discussed what McNulty would say, and no one said there were performance
issues related to Cummins’s removal. In an e-mail after McNulty’s
testimony, which contained Sampson’s proposed draft response to
congressional concerns about Cummins’s removal, Sampson endorsed McNulty’s
testimony that Cummins’s removal was not connected to his performance
“but more related to the opportunity to provide a fresh start with a new
person in that position.” 138 we found relating to Cummins’s intent to
leave his position at some point in the future was his statement in the
small news item in the December 30, 2004, edition of the Arkansas Times, a
free weekly Arkansas paper. As previously mentioned, the article stated
that with four children to put through college, Cummins said he would
likely begin exploring other career options, and that “it wouldn’t be
‘shocking’ . . . for there to be a change in his office before the end
of Bush’s second term.” We asked Cummins whether it was true that in
December 2004 he had made it known that he planned to leave office. He
told us that he had only discussed the issue in general terms, as
indicated in the article in the Arkansas Times. Cummins said he did not
recall discussing his leaving office with anyone at the Department at the
time, and he characterized as “ludicrous” the idea that senior
managers at the Department made personnel decisions based on an article
about Arkansas politics appearing in a free weekly tabloid.92 The second
misleading statement in the letter - that Griffin’s appointment was
first contemplated in the spring of 2006 - is directly contradicted by the
January 9, 2006, e-mail Sampson sent to Miers, discussed above, in which
Griffin is listed as a replacement for Cummins. The statement that the
final decision to appoint Griffin was made around December 15, 2006,
following Gonzales’s discussion with Senator Pryor, is also misleading.
As noted previously in this chapter, Sampson informed Goodling on August
18, 2006, that the Attorney General would appoint Griffin U.S. Attorney
“forthwith.” The third misleading statement in the Department’s
letter was the statement that the Department was not aware of Karl Rove
being involved in the decision to appoint Griffin. However, in a December
19 e-mail to Oprison at the White House, Sampson stated that he knew
Griffin’s appointment “was important to Harriet [and] Karl.” Oprison,
who reviewed and edited the Department’s draft response to the Senators,
told us that when he reviewed the draft he did not remember Sampson’s
December 19 e-mail. In an e-mail to Sampson on February 23, 2007, Oprison
attached the letter with “slight revisions,” along with the message
that “Fred [Fielding], as I, want to ensure that it is absolutely
consistent with the facts and that it does not add to the controversy
surrounding this issue.” Oprison told us that he had not been employed
at the White House when the issue of Griffin’s appointment first arose.
He also stated 92 We found evidence that Deputy White House Liaison Angela
Williamson forwarded the 2004 Arkansas Times article to Goodling on
February 5, 2007. Sampson forwarded the article to Kelley at the White
House on February 21, 2007, with the notation: “Addendum to the Cummins
tick tock.” However, we found no evidence that anyone at the Department
was aware of the article prior to February 5, 2007. 139 that it was likely
he was asked to review the response because Deputy White House Counsel
Kelley was not in the office and there was a short turn around time for
the response. Oprison stated that because the response was from the
Department, he did not feel it was his role to “exercise due diligence”
to confirm the factual assertions contained in the letter, even though the
letter contained representations concerning White House personnel. Sampson
testified to the Senate Judiciary Committee that he “widely circulated”
the draft response to the letter and that no one disagreed with the
statement claiming no knowledge that Rove played any role in Griffin’s
appointment. Sampson also said that at the time he drafted the response,
he was unaware of whether Rove actually was interested in Griffin’s
appointment. When Sampson was asked about the contradiction between this
response and his December 19 e-mail in which he asserted that he knew that
Griffin’s appointment was “important to Harriet and Karl,” Sampson
said the December 19 e-mail was based on an assumption on his part.
Sampson said he knew firsthand that Griffin’s appointment was important
to Sara Taylor and Scott Jennings at the White House, and he assumed that
since they reported to Rove, Griffin’s appointment was also important to
Rove. Sampson said that when he was drafting the February 23 response, he
thought to himself that he did not know whether Rove was actually
interested in Griffin’s appointment. Sampson also said he did not recall
ever discussing the matter with Rove. Moreover, Sampson told us that he
believed the other statements in the letter were accurate. With respect to
the statements that Griffin’s appointment was first contemplated in the
spring of 2006 and the final decision to appoint him was made on December
15, Sampson testified that when he drafted the response he was focused on
when the Attorney General independently decided to appoint Griffin, which
Sampson stated was after Gonzales had discussed the matter with Senator
Pryor in mid-December 2006. Sampson said the response he drafted reflected
this timing, and said he circulated it to make sure others thought it was
accurate. We also determined that in the initial draft of the Department’s
February 23 response, Sampson proposed to Goodling, McNulty, Elston,
Moschella, Hertling, and Scolinos that the letter state up front that “in
the spring of 2006, White House Counsel Miers asked the Department if Mr.
Griffin could be considered for appointment as U.S. Attorney upon his
return from Iraq.” Sampson told us that the wording was changed in the
final version of the letter to delete any mention of Miers and to make the
White House’s role in Griffin’s appointment seem more passive. When we
asked Sampson why that change was made, he said he had the general sense
after the back-and-forth with the White House concerning the letter that
Miers’s name was deleted so as not to “feed red meat up to these guys.”
140 During our interview, Sampson described the incoming letter as “pretty
accusatory,” and he said he tried to draft a response that was accurate,
responsive, and agreeable to the White House. Sampson said he believed the
Department’s response was accurate, although he did not personally check
the factual assertions in the letter. Richard Hertling, who became Acting
Assistant Attorney General for the Office of Legislative Affairs on
January 9, 2007, after serving 4 years in the Department’s Office of
Legal Policy, told us that the responses were too “cute.” Hertling
acknowledged that the Department’s response misstated the timing of the
decision to appoint Griffin and whether Rove was involved in Griffin’s
appointment. Hertling said that at the time he signed the response he was
unaware that the facts as stated in the letter were not accurate. Hertling
said he did not even become aware that the U.S. Attorneys had been removed
until sometime in mid-January 2007, after he became Acting Assistant
Attorney General. Hertling said that Sampson prepared the response to the
specific questions about Griffin.93 Hertling said he assumed that the
response was truthful, accurate, and complete, and said he had no basis to
question the representations contained in the letter. With respect to the
statement that Rove did not play a role in the decision to appoint
Griffin, Hertling told us that he had a vague recollection of asking
Sampson whether Rove was involved in Griffin’s nomination. According to
Hertling, Sampson responded that he did not talk to Rove about Griffin and
he did not think Gonzales did either. Hertling said he did not press the
issue because the way the statement was worded seemed accurate. G. Griffin
Withdraws On February 15, 2007, Attorney General Gonzales and Senator
Pryor again discussed whether Pryor would support Griffin’s nomination
as U.S. Attorney. Gonzales told us that during their conversation Pryor
indicated he would not support Griffin’s nomination. Gonzales said he
then told Pryor that he would confer with the Arkansas congressional
delegation for names of other individuals to consider for the U.S.
Attorney position, as he had previously agreed to do. Griffin told us that
Goodling called him immediately after Gonzales’s conversation with Pryor
to tell him about the discussion. Later that evening, Griffin announced
that he was withdrawing his name from consideration for the permanent U.S.
Attorney position. 93 Sampson prepared the initial draft response and
asked Goodling to verify the specific dates concerning Griffin’s
appointment. 141 During our interview, Gonzales said he was reluctant to
discuss with us conversations he had with the White House concerning his
commitment to Senator Pryor to find other candidates. Gonzales said,
however, that the White House was “unhappy that I had honored my
commitment” to Pryor. Griffin told us that Rove informed him that
individuals in the White House were unhappy with Gonzales when they
learned that he told Pryor that he would not recommend Griffin’s
nomination to the White House because Pryor would not support Griffin.
Shortly after Griffin withdrew his name from consideration, Gonzales told
Griffin that the process of identifying alternate candidates, vetting
them, and preparing a nomination would take several months and that
Gonzales was happy to have Griffin serve as Interim U.S. Attorney while
the process moved forward. Griffin did so for several months and resigned
on June 1, 2007. H. Taylor’s Comment Concerning Cummins On February 16,
2007, after Griffin had announced he was withdrawing his name from the
nomination process, White House Political Affairs Director Sara Taylor
sent Sampson an e-mail expressing anger at the manner in which the
Department had “forced” Griffin to withdraw. Taylor also stated in the
email that, “McNulty refuses to say Bud is lazy - which is why we got
rid of him in the first place.” When we asked Taylor why she had the
impression Cummins was “lazy,” she said she did not personally know
Cummins and she did not recall specifically where she first heard that
Cummins was lazy.94 Taylor told us that she had the general impression
that lawyers in Arkansas did not think highly of Cummins, but also said
she did not recall how she received that impression. Taylor said it was
possible that she received a negative impression of Cummins from Griffin,
but she said she did not believe that he was her only source. She stated
that because Griffin was on her staff, she talked to “tons of Arkansans”
who visited the White House whenever they were in Washington. Taylor said
she likely gained her impression of Cummins through a combination of
information from Griffin and from other Arkansas attorneys. Griffin told
us he did not remember ever telling Taylor that Cummins was lazy. Griffin
said he did not personally believe Cummins was lazy. However, he said that
he had heard similar comments about Cummins from other people and was sure
he had passed on the comments. Griffin admitted that in 2005 and 2006 he
might have made negative comments about Cummins to 94 In her Senate
testimony, Taylor stated that she wanted to apologize to Cummins for her
“unkind and unnecessary comment.” 142 Sampson, Taylor, and others
along the lines of complaining about Cummins’s failure to get another
job. We asked former White House Deputy Director of Political Affairs
Jennings whether he was aware of any criticism concerning Cummins’s
performance as U.S. Attorney. Jennings told us that he had heard both
Griffin and Taylor criticize Cummins. Jennings said “the knock on
[Cummins] specifically from Mr. Griffin was that [Cummins] was generally
regarded as being lazy, and it was a widely known thing in legal circles
in Little Rock.” Jennings said that Griffin and Taylor also criticized
Cummins for not being in the office while he was looking for another job.
Jennings acknowledged that Taylor’s awareness about events in Arkansas
most likely came from Griffin. III. Analysis A. Cummins’s Removal
Similar to our investigation into the reasons for Graves’s removal, our
investigation of Cummins’s removal was hindered by the refusal of
several former White House employees to cooperate with our investigation.
In particular, Rove, Miers, Kelley, and Klingler had important and
relevant information for our investigation, but they refused to cooperate
with our investigation and be interviewed by us. However, we believe we
were able to ascertain the reasons for Cummins’s removal. Sampson
included Cummins as one of many “weak U.S. Attorneys” on his first
removal list in March 2005. When we interviewed Sampson, he said that he
could not recall specifically why he identified Cummins for potential
removal on this list. Sampson said he felt that Cummins was mediocre and
an underperformer, although he also said he could not recall learning
anything specific about Cummins’s performance between 2001 and 2005 that
would have supported this belief. Sampson acknowledged that his view of
Cummins was colored by information he gained from Cummins’s nomination
process, not from Cummins’s performance as U.S. Attorney. While Sampson
told us that he thought other Department managers also viewed Cummins’s
performance as mediocre, none of the Department managers we interviewed
confirmed this or said they had provided such an assessment to Sampson. In
fact, several of the Department’s senior managers, including Deputy
Attorneys General Comey and McNulty, Associate Deputy Attorney General
Margolis, and EOUSA Director Buchanan, told us they did not hear anything
negative about Cummins’s performance. Michael Battle, the Director of
EOUSA at the time of Cummins’s removal, had an extremely positive view
of Cummins’s service as U.S. Attorney. Battle said that he was not aware
of any problems or dissatisfaction within the Department concerning
Cummins’s performance, and Battle added that he considered Cummins to be
one of the 143 top five U.S. Attorneys in the country. In addition, the
two EARS evaluations of Cummins’s office over a 4-year period were
positive about his management of the office and his adherence to the
Department’s priorities. We also found no factual underpinning for
certain derogatory public comments that surfaced about Cummins after the
Department removed him. For example, the Department produced to Congress
e-mail records between Sampson and White House Political Affairs Director
Taylor. In one e-mail, Taylor commented angrily that Cummins was “lazy -
which is why we got rid of him in the first place.” Taylor subsequently
apologized for this comment, and we found no support for this comment
during our investigation. The evidence shows that once Sampson provided to
the White House his initial list of U.S. Attorneys recommended for
removal, White House officials pushed for Griffin to replace Cummins. In
mid-March 2005 Karl Rove suggested to White House Counsel Harriet Miers
that Griffin could be considered for Cummins’s U.S. Attorney position,
and Miers discussed with Griffin his desire to become a U.S. Attorney.
Over the next year, throughout Griffin’s tenure both at the White House
and during his military service, Griffin continued to discuss his desire
to be U.S. Attorney in Arkansas with Rove and Miers. In Sampson’s
January 2006 list of U.S. Attorneys, he recommended that the White House
remove Cummins and listed Griffin as a potential replacement for Cummins.
After the removals, Sampson claimed that by January 2006 Cummins had
indicated that he intended to resign and that this was the reason Griffin
was chosen to replace him. In fact, Cummins had not stated at that time
when he intended to resign. Rather, Cummins had only indicated to a small
Arkansas newspaper that it would not be shocking for him to leave before
the end of President Bush’s second term. Nevertheless, in June 2006,
before Cummins had made any plans to resign, the White House began Griffin’s
pre-nomination process. On June 14, EOUSA Director Battle was instructed
to ask Cummins for his resignation and inform him that the Administration
wanted to give someone else the opportunity to serve. While Battle was
surprised and upset at the directive, he did not question it and made the
call as instructed. In sum, while Sampson said he thought Cummins was “mediocre,”
primarily based on his interview of Cummins before he became the U.S.
Attorney, neither Sampson nor anyone else in the Department evaluated
Cummins’s performance before Cummins was placed on the initial removal
list. After that, the White House began pressing for Griffin to be placed
in Cummins’s position, and in June 2006 Cummins was instructed to resign
to provide a place for Griffin. 144 B. Misleading Statements about Cummins’s
Removal We found that after Cummins was instructed to resign and Griffin
was announced as his replacement, senior Department leaders made a series
of conflicting and misleading statements about Cummins’s removal. First,
in talking points Sampson drafted on December 19, 2006, for the Department’s
Office of Public Affairs to use in response to any press inquiries about
the circumstances of Griffin’s appointment, Sampson wrote that when a
U.S. Attorney vacancy arises someone needs to be appointed even if on an
interim basis to fill the vacancy and that Griffin was appointed because
of the timing of Cummins’s resignation. In fact, the White House and the
Department had directed Cummins to resign so that Griffin could take his
place. The Department’s talking points left the misleading impression
that because of the unexpected timing of Cummins’s resignation, the
Department had to install Griffin as Interim U.S. Attorney. In fact, the
Department planned to remove Cummins and install Griffin. In his January
18, 2007, testimony before the Senate Judiciary Committee, Attorney
General Gonzales testified that the Department had asked U.S. Attorneys to
resign after evaluating their performance, and changes were made pursuant
to the Attorney General’s responsibility to ensure that the Department
had “the best possible person” in each district. However, we found no
evidence that either Sampson or any other Department official evaluated
Cummins’s performance. Nor does the evidence show that Griffin was
chosen to replace Cummins because Griffin was considered to be the “best
possible person” for the job. Moreover, contrary to the Attorney General’s
testimony, Deputy Attorney General McNulty testified in his February 6
appearance before the Senate Judiciary Committee that Cummins was not
asked to step aside for performance reasons, but rather to make way for
Griffin. In an e-mail after the testimony, Sampson endorsed McNulty’s
statement that Cummins’s removal was not connected to his performance,
but was “more related to the opportunity to provide a fresh start with a
new person in that position.” After this public testimony, the
Department made other misleading statements about Cummins’s removal. The
most troubling were the representations contained in the February 23
response to a letter from several Senators raising concerns about Cummins’s
removal. The Department’s February 23 letter, drafted by Sampson and
circulated to various Department senior managers and the White House, made
three significant misleading statements. The first was that “It was well
known as early as December 2004 that Mr. Cummins intended to leave . . . .”
In fact, as noted above, Cummins had simply said it would not be shocking
for him to leave before the end of President Bush’s second term. 145 The
second concerned the timing of when the White House first contemplated
Griffin’s appointment and when the final decision was made to appoint
Griffin. The letter stated that “the decision to have Mr. Griffin
replace Mr. Cummins was first contemplated in the spring or summer of 2006
[and] the final decision to appoint Mr. Griffin . . . was made on or about
December 15 . . . .” In fact, as discussed above, Griffin’s
appointment was contemplated earlier than that, and the Department decided
to appoint him to be the U.S. Attorney much earlier than December 15,
2006. The third misleading statement in the letter was that “The
Department is not aware of Karl Rove playing any role in the decision to
appoint Mr. Griffin.” This statement is contradicted by the evidence
described in this chapter which indicated that Rove was involved in the
decision to appoint Griffin and that Sampson was aware of that fact. The
statement is also contradicted by Sampson’s own e-mail on December 19 to
Associate White House Counsel Chris Oprison in which Sampson wrote, “I’m
not 100 percent sure that Tim was the guy on which to test drive this
authority, but know that getting him appointed was important to Harriet,
Karl, etc.” While Sampson later explained this e-mail by stating that he
“assumed” but did not know that Rove was involved in the decision to
appoint Griffin, we found this justification unpersuasive and belied by
the evidence. C. Interim Appointment of Griffin Finally, our investigation
examined the allegation that the Department intended to appoint Griffin to
be Interim U.S. Attorney indefinitely by using the new authority granted
to the Attorney General in the Patriot Reauthorization Act to bypass the
Senate confirmation process. We concluded that when the Department
initially developed and implemented the plan to replace Cummins with
Griffin, it intended to nominate Griffin and seek his confirmation through
the normal Senate process. After Cummins was directed in June 2006 to
resign, the White House’s Judicial Selection Committee voted in favor of
Griffin’s nomination, and the President signed off on the intent to
nominate Griffin. However, the White House did not follow the traditional
practice of informing the home-state congressional delegation and
soliciting U.S. Attorney candidate names. This deviation from the
customary procedure contributed to the belief that the Administration
intended to bypass the Senate’s normal role in U.S. Attorney
nominations. The selection of Griffin quickly ran into opposition from
members of Congress from Arkansas, particularly Senator Pryor. The
evidence indicated that at this point the Department officials responsible
for Griffin’s nomination - particularly Sampson and Goodling -
considered appointing Griffin to be the Interim U.S. Attorney
indefinitely, using the new Patriot Act authority. For example, Griffin
told us that he learned from Goodling sometime after he had 146 spoken to
Senator Pryor that an appointment as Interim U.S. Attorney under the
Patriot Act amendment would allow him to serve as U.S. Attorney
indefinitely. Moreover, although Sampson and Jennings told us that the
problems with the Arkansas Senators did not change their thinking about
having Griffin go through the traditional nomination and Senate
confirmation process, the documentary evidence does not support this
claim. For example, by mid- August 2006 the Department had stopped
preparing the paperwork for Griffin to be nominated by the President and
confirmed by the Senate. In addition, in an e-mail dated August 30, 2006,
Griffin informed an EOUSA employee that he had spoken with Jennings who
“doesn’t see any reason to proceed with the senate paperwork since the
appointment will occur the other way.” In a September 13, 2006, e-mail
to Miers, Sampson also wrote, “I strongly recommend that, as a matter of
Administration policy, we utilize the new statutory provisions that
authorize the AG to make USA appointments.” Sampson wrote that by
bypassing the Senate confirmation process, “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
cost to the White House.” Gonzales told us that he had no specific
recollection of discussing this issue with Sampson at the time, although
he said he did not support using the interim appointment authority to
bypass the Senate confirmation process. In December 2006, after Cummins
resigned, Griffin was appointed as Interim U.S. Attorney. Gonzales
discussed Griffin’s appointment in several conversations with Senator
Pryor. According to Gonzales, he asked Pryor to support Griffin and said
that Griffin’s interim appointment would give Pryor the opportunity to
see how Griffin performed. Pryor did not respond positively, and a
newspaper article from Arkansas stated that he was “irked” by the
surprise notice of Griffin’s appointment as Interim U.S. Attorney.
Sampson then wrote another e-mail suggesting that Griffin should remain as
the Interim U.S. Attorney indefinitely, bypassing Senate confirmation. In
response to concern from White House Associate Counsel Oprison that the
Arkansas Senators could use Griffin’s interim status to press for their
own nominee, Sampson responded “I think we should gum this to death . .
. .” Sampson also wrote that because Griffin’s interim appointment was
of unlimited duration, the Department could “run out the clock” while
appearing to be acting in good faith by asking the Senators for
recommendations, interviewing other candidates, and pledging to desire a
Senate-confirmed U.S. Attorney. Sampson later disavowed this e-mail,
labeling it a “bad idea at the staff level.” He also said that he did
not really believe the plan was practical, and that Attorney General
Gonzales never seriously considered it. Gonzales also told us that he did
not support this idea. In addition, in the face of continuing 147
opposition from Senator Pryor to Griffin’s appointment, Griffin resigned
and the Department sought other candidates to be nominated to the U.S.
Attorney position. Our investigation did not find evidence that Attorney
General Gonzales ever supported the idea to appoint Griffin to an
indefinite term to avoid the Senate confirmation process. However, the
evidence showed that he was not closely involved in Griffin’s
appointment process, and that Sampson, the main architect and implementer
of the plan to replace U.S. Attorneys, advocated making Griffin the
Interim U.S. Attorney indefinitely when his nomination was opposed by the
Arkansas Senators. According to Sampson’s and Gonzales’s
recollections, Sampson took these actions on his own, without input and
supervision from Gonzales. But Sampson’s ideas were more than “a bad
idea at the staff level” - he advocated a plan and began implementing
it. Only in the face of determined opposition by Senator Pryor, as well as
the controversy surrounding the removal of the other U.S. Attorneys, did
Sampson abandon this plan. In sum, we concluded that Cummins was not
removed for performance reasons, as initially suggested by the Department.
His performance was never evaluated, and no Department leader had
suggested that Cummins’s performance was lacking. Sampson stated that he
thought Cummins was “mediocre” but he never assessed his performance,
and he later agreed with McNulty that Cummins was not removed for
performance reasons. Rather, the evidence shows that the main reason for
Cummins’s removal, and the timing for his removal, was to provide a
position for former White House employee Griffin. 148 [PAGE INTENTIONALLY
LEFT BLANK] Sep 2001 Oct 2001 Jun 2004 Jul 2004 Sep 2004 Oct 2004 Jan 2005
Feb 2005 Mar 2005 Sep 2005 Oct 2005 Jan 2006 Feb 2006 Apr 2006 May 2006
Jun 2006 Sep 2006 Oct 2006 Nov 2006 Dec 2006 Jan 2007 Feb 2007 David
Iglesias Timeline Oct 12, 2001 Iglesias is confirmed by the Senate as the
U.S. Attorney, New Mexico Jun 2004 - Sep 2004 Iglesias hears concerns from
New Mexico Republican officials and party activists about voter fraud Sep
2004 Iglesias establishes a voter fraud task force Sep 2004 - 2006 Task
Force reviews complaints, but brings no cases Mar 2, 2005 On the first
removal list Sampson identifies Iglesias as a “strong” U.S. Attorney
who should not be removed Jan 2005 - Oct 2005 New Mexico Republican
officials and activists complain to the White House about Iglesias's
handling of voter fraud allegations Sep 23, 2005 Senator Domenici makes
first call to Gonzales concerning Iglesias Jan 31, 2006 Domenici makes
second call to Gonzales concerning Iglesias Apr 6, 2006 Domenici makes
third call to Gonzales concerning Iglesias May 2006 New Mexico Republican
officials and activists complain about Iglesias's handling of a public
corruption case involving Vigil, a New Mexican Democrat who is the state
treasurer Jun 21, 2006 New Mexico Republicans meet with Department
officials, including Goodling, to complain about Iglesias Sep 30, 2006
Vigil’s retrial results in acquittal on 23 of 24 counts Oct 2, 2006 New
Mexico Republicans complain to Rove about Iglesias’s handling of
courthouse public corruption and voter fraud cases Oct 4, 2006 Domenici
calls McNulty concerning Iglesias Oct 11, 2006 President Bush tells
Gonzales about voter fraud concerns in three cities, including Albuquerque
Oct 2006 Rove tells Gonzales about voter fraud concerns in three cities,
including Albuquerque, then Gonzales tells Sampson Oct 16, 2006
Representative Wilson calls Iglesias about public corruption case Oct 26,
2006 Domenici calls Iglesias about public corruption case and asks whether
an indictment will be filed before November Oct 2006 - Nov 2006 Miers
calls McNulty about Iglesias Nov 7, 2006 Iglesias’s name appears on
Sampson’s removal list for the first time Nov 15, 2006 Rove tells Wilson
that Iglesias is “gone” Dec 7, 2006 Iglesias is told to resign Jan 5,
2007 Iglesias announces his resignation to his office Feb 28, 2007
Iglesias leaves office Iglesias reveals publicly that Domenici and Wilson
called him in October 2006 about the courthouse case Sep 2001 Iglesias
Events and Actions Sep 2001 DOJ and Other Events and Actions 149 CHAPTER
SIX DAVID IGLESIAS I. Introduction This chapter examines the removal of
David Iglesias, the former United States Attorney for the District of New
Mexico. A. Iglesias’s Background Iglesias received his law degree from
the University of New Mexico School of Law in 1984. From 1984 to 1988, he
served in the U.S. Navy Judge Advocate General’s Corps (JAG). After
leaving active duty service, he has served on reserve duty in the Navy
JAG, where he holds the rank of Captain. From 1988 through 1991, Iglesias
was an Assistant Attorney General in the New Mexico Attorney General’s
Office, after which he served as an Assistant City Attorney in Albuquerque
from 1991 to 1994. Between 1994 and 1995, he participated in the White
House Fellows program as a Special Assistant to the Secretary of
Transportation. He served as Chief Counsel for the New Mexico Risk
Management Legal Office between 1995 and 1998, and as General Counsel for
the New Mexico Taxation and Revenue Department from 1998 to 2001. In 2001,
he worked at a private law firm in Albuquerque. In 1998, Iglesias ran
unsuccessfully as the Republican Party’s candidate for New Mexico
Attorney General. During the campaign, staff from U.S. Senator Pete
Domenici’s office provided advice and logistical support, and Iglesias
met personally with Senator Domenici on several occasions. Domenici also
made a videotaped statement endorsing Iglesias’s candidacy, which
Iglesias used to raise campaign funds. Iglesias told us that because of
the Senator’s interest and support, Iglesias regarded him as a mentor
and someone who might be able to help Iglesias if he continued to pursue a
political career. U.S. Representative Heather Wilson successfully ran for
a seat in Congress from New Mexico in 1998, and Iglesias campaigned with
her at several events. Iglesias said that previously, when Wilson was the
Secretary of the New Mexico Department of Children, Youth and Families
from 1995 to 1998, he worked with her on several matters while he was in
the state’s Risk Management Legal Office. During the 2000 Presidential
campaign, Iglesias headed a New Mexico state-level organization called “Lawyers
for Bush.” He said that after the election he learned that he could
apply directly for the New Mexico U.S. Attorney position through a White
House website. He submitted his résumé 150 and simultaneously informed
Senator Domenici’s staff that he was interested in the job. Iglesias and
three other candidates were eventually selected to be interviewed by
Senator Domenici. Iglesias told us he believes he may have been the only
one whose name was sent on to the Department of Justice. He said he was
interviewed at the Department by Associate Deputy Attorney General David
Margolis, Kyle Sampson (then with the White House Office of Presidential
Personnel), and a third official from the Executive Office for United
States Attorneys (EOUSA). After subsequent interviews with Attorney
General John Ashcroft and Deputy Attorney General Larry Thompson, Iglesias
was nominated by the President for the U.S. Attorney position on August 2,
2001, confirmed by the Senate, and sworn in on October 17, 2001.95
Iglesias was appointed as the Chair of the Border and Immigration
Subcommittee of the Attorney General’s Advisory Committee (AGAC) and
served in that position until 2005. According to Iglesias, at various
times in 2004 the White House asked him to consider an appointment to be
Director of EOUSA, or an Assistant Secretary at the Department of Homeland
Security, two positions he said he was not interested in pursuing.
Documents also reflect that around the same time Sampson and others in the
Department considered him as a potential candidate for U.S. Attorney
vacancies in the Southern District of New York and the District of
Columbia. B. The EARS Evaluations of Iglesias’s Office Iglesias’s
office received EARS evaluations in 2002 and 2005, and both reports were
positive. The 2002 EARS evaluation stated: “The United States Attorney
was well respected by the client agencies, judiciary, and USAO staff. He
provided good leadership . . . and was appropriately engaged in the
operations of the office.” The 2005 EARS evaluation stated: “The
United States Attorney . . . was respected by the judiciary, agencies, and
staff. The First Assistant United States Attorney . . . appropriately
oversaw the day-to-day work of the senior management team, effectively
addressed all management issues, and directed resources to accomplish the
Department’s and the United States Attorney’s priorities.” The EARS
reports did not contain any criticisms or concerns about Iglesias’s
leadership. 95 Iglesias hired as his Executive Assistant U.S. Attorney (EAUSA)
Rumaldo Armijo, a former colleague from both the state Attorney General’s
Office and Albuquerque city government. Iglesias hired Larry Gomez, a
career prosecutor who had been with the New Mexico U.S. Attorney’s
Office (USAO) since 1979 as the First Assistant U.S. Attorney and Criminal
Chief. 151 C. Iglesias’s Status on the Removal Lists As discussed in
Chapter Three, in March 2005 Sampson sent to the White House the first
list of U.S. Attorneys recommended for removal. On that list, Sampson
identified Iglesias as 1 of 26 “strong” U.S. Attorneys who should be
retained by the Department. Iglesias did not appear on any of Sampson’s
subsequent removal lists until the list Sampson circulated on November 7,
2006, 1 month before Iglesias and the other U.S. Attorneys were removed.
D. Reasons Proffered for Iglesias’s Removal As described in Chapter
Three, in February 2007 when the Department began to prepare witnesses for
their congressional testimony regarding the U.S. Attorney removals, Monica
Goodling and others created a chart with a list of the reasons justifying
the removals. In her handwritten notes describing the reasons, Goodling
wrote that Iglesias was an “underachiever in a very important district,”
that he was an “absentee landlord,” that he was “in over his head,”
and that “Domenici says he doesn’t move cases.” Senator Domenici
made three telephone calls to Attorney General Gonzales in 2005 and 2006,
and one to Deputy Attorney General Paul McNulty in October 2006,
complaining about Iglesias’s performance. However, Domenici’s
complaints were omitted from the list of reasons for Iglesias’s
termination, both in the final typewritten chart that Goodling prepared
for McNulty’s use in his February 14, 2007, briefing of the Senate
Judiciary Committee and from Department officials’ initial statements
about Iglesias’s removal.96 According to the talking points McNulty used
to prepare for the February 14 briefing for the Senate Judiciary Committee
and notes of the meeting taken by Nancy Scott-Finan, an Office of
Legislative Affairs official who attended the briefing, McNulty gave the
following reasons for Iglesias’s removal: • He was “under-performing”;
• He was an “absentee landlord,” who was out of the office a fair
amount of time and who relied on the First Assistant U.S. Attorney to run
the office; and • The Department had received congressional complaints
about Iglesias. McNulty confirmed to us that he did not mention Senator
Domenici in this congressional briefing. McNulty said that he did not want
to refer to 96 We describe the telephone calls from Domenici later in this
chapter. 152 Domenici because he was “concerned about . . . putting the
Senator in a bad light or in a difficult position” and that he wanted to
keep his conversation with Domenici “confidential . . . . It was just a
courtesy.” In her written testimony to the House Judiciary Committee,
Goodling, the Department’s White House Liaison, also stated that
Domenici’s complaints about Iglesias were omitted from the list of
reasons for Iglesias’s removal at McNulty’s suggestion. On March 6,
2007, Principal Associate Deputy Attorney General William Moschella
testified before a House Judiciary Subcommittee about the reasons for the
removals of each U.S. Attorney. Moschella stated that Iglesias’s removal
was based on concerns about his management of the New Mexico U.S. Attorney’s
Office: There was a general sense with regard to this district . . . that
the district was in need of greater leadership. We have had a discussion
about the EARS report, and the EARS report does pick up some management
issues, and Mr. Iglesias had delegated to his first assistant [Larry
Gomez] the overall running of the office.97 Moschella, like McNulty, did
not mention Domenici’s calls to Department officials. Iglesias himself
was the first to publicly disclose that Senator Domenici may have had a
role in his removal. In a press conference on February 28, 2007, without
naming Senator Domenici or Representative Wilson, Iglesias stated that he
had received telephone calls from two members of Congress who pressured
him to indict a public corruption case before the November 2006 election.
In response, on March 4 and March 6, respectively, Domenici and Wilson
released written statements confirming that they had called Iglesias but
denying that they pressured him in any way. In his testimony before the
Senate Judiciary Committee on March 6, 2007, Iglesias again stated that he
believed he was asked to resign because he failed to respond to political
pressure to indict a public corruption case against Democratic officials
before the November 2006 election. In his Senate testimony, Iglesias
described the telephone calls he received from Senator Domenici and
Representative Wilson in October 2006 regarding the status of a pending
public corruption matter, and Iglesias testified that in both instances he
felt he was being pressured to bring an indictment before the November
election. Sampson testified before the Senate Judiciary Committee on March
29, 2007, about the removals of the U.S. Attorneys. Sampson stated that he
did 97 As we discuss in Section II. A. below, Moschella’s statements
about the EARS report were inaccurate. 153 not recall the reasons Iglesias
was placed on the November 7 removal list, but said the fact that Senator
Domenici had made three calls to the Attorney General and one call to the
Deputy Attorney General regarding Iglesias may have influenced the
decision to remove Iglesias. Sampson said he recalled McNulty saying that
Domenici would not mind if Iglesias’s name stayed on the list. Sampson
also stated that there were management concerns about Iglesias. He said
that in 2005 William Mercer, at the time the Principal Associate Deputy
Attorney General, “expressed negative views about Mr. Iglesias . . . and
recommended that he not be reappointed . . . as chair of the Border
Committee.”98 Sampson also stated that “at some point, Mr. David
Margolis . . . indicated to me . . . that [Iglesias] wasn’t a strong
manager, that he delegated a lot to his First Assistant.”99 On April 19,
2007, Gonzales told the Senate Judiciary Committee that Iglesias had “lost
the confidence of Senator Domenici” because he “did not have the
appropriate personnel focused on cases like public corruption cases.” In
his May 10, 2007, testimony before the House Judiciary Committee, Gonzales
added that because Iglesias did not have Domenici’s confidence, it was
“enough for me to lose confidence in Mr. Iglesias.” During Gonzales’s
House and Senate testimony, he also stated that in one of his
conversations with Domenici the Senator mentioned voter fraud cases.
Gonzales also testified that in the fall of 2006 Karl Rove had mentioned
to him his concern over voter fraud in three cities, one of which was
Albuquerque, New Mexico. Gonzales said he did not recall, but did not
dispute, that President Bush expressed similar concerns to him about the
same three cities on October 11, 2006. E. Investigative Limitations It is
important to note that our investigation into Iglesias’s removal was
hampered, and is not complete, because key witnesses declined to cooperate
with our investigation. In particular, former White House officials
Harriet Miers and Karl Rove, both of whom appear to have significant
first-hand knowledge regarding Iglesias’s dismissal, refused our
requests for an interview 98 When he chaired the Attorney General’s
Advisory Committee in February 2005, Mercer had recommended to Sampson
that Iglesias and several other subcommittee chairs be replaced because
Mercer did not think they were as effective chairmen as Mercer thought
they should be. However, Mercer told us that while some of the names on
Sampson’s U.S. Attorney removal list did not surprise him when he first
saw the list on December 5, 2006, he had not expected to see Iglesias on
the list. 99 However, as detailed below, Margolis told us he was certain
that he told Sampson about these allegations only after Iglesias was
removed. Margolis said he only became aware of Iglesias’s delegation of
authority to his First Assistant when he interviewed a replacement for
Iglesias after his removal. 154 even though the White House Counsel’s
Office informed them both, as it did all current and former White House
staff who we wanted to interview, that the Counsel’s Office encouraged
them to cooperate with our investigation and submit to an interview. In
addition, Senator Domenici and his Chief of Staff, Steve Bell, also
declined to be interviewed by us. Domenici initially told us through his
counsel that he would be “pleased to assist” our investigation once a
pending Senate Ethics Committee investigation of his phone call to
Iglesias was completed. We renewed our requests for interviews after the
Senate ethics inquiry was concluded. Bell continued to decline to be
interviewed. Domenici also declined to be interviewed, but said he would
provide written answers to questions through his attorney. We declined
this offer because we did not believe it would be a reliable or
appropriate investigative method under these circumstances. In contrast,
Representative Wilson cooperated with our investigation and was
interviewed by us three separate times.100 In addition, we were not
provided documents from the White House that we believe are critical to
our investigation. As noted in Chapter One, the White House Counsel’s
Office declined to provide us internal White House e-mails and documents
related to the removals of the U.S. Attorneys. Moreover, as described in
Chapter One, the White House refused to authorize the Department’s
Office of Legal Counsel to release to us drafts of a chronology of events
related to the U.S. Attorney firings prepared by Associate White House
Counsel Michael Scudder in cooperation with Department staff. The White
House only authorized the release of one paragraph of that chronology
related to Iglesias, Harriet Miers, and Representative Wilson, and two
paragraphs containing information Rove provided to Scudder but did not
allow the release of other information from that chronology. We
interviewed Mickey Barnett, an attorney and former Republican state
Senator from New Mexico, who provided documents to the U.S. Senate
pursuant to a subpoena in connection with the Senate Ethics Committee
investigation of Senator Domenici’s telephone call to Iglesias. Although
Barnett gave us several documents from among those he produced to the
Senate, he refused to give us all the documents he produced and we are not
able to obtain them from the Senate Ethics Committee. 100 Patrick Rogers,
a New Mexico Republican Party activist who complained about Iglesias to
Department and White House officials, notified us through his attorney
that he would not agree to be interviewed. In one letter, he also stated
that he would “consider providing testimony to DOJ, but only if the
interview is conducted in public.” 155 II. Chronology of Events Related
to Iglesias’s Removal In this section, we examine the reasons proffered
for Iglesias’s removal. We first discuss the Department’s assertion
that Iglesias was removed because he was an “absentee landlord” and
because he delegated many of his duties and responsibilities to his First
Assistant U.S. Attorney. We then describe in detail the factual chronology
regarding Iglesias’s handling of voter fraud and public corruption cases
in his district. We analyze whether the complaints about his handling of
these cases were the cause of his removal. We also examine the nature and
extent of both congressional and New Mexico Republican Party activists’
complaints to the White House and to the Department about Iglesias’s
handling of these cases, and we describe the events leading to Iglesias’s
removal. A. Alleged Concerns about Iglesias’s Management As noted above,
in both its written materials and public testimony, the Department
justified Iglesias’s removal based in part on an allegation that he was
an “absentee landlord” who over-delegated authority to run the U.S.
Attorney’s Office to his First Assistant. We determined that during the
preparation sessions for McNulty’s closed briefing, when Department
senior officials were discussing the reasons they would present to
Congress as justifications for the removals, someone raised the allegation
that Iglesias had been an “absentee landlord.” No one we interviewed
remembered who called Iglesias an absentee landlord at this meeting.
According to Margolis, when he heard at the meeting the allegation that
Iglesias was an absentee landlord, he told Goodling that the allegation
had been “corroborated” by New Mexico First Assistant U.S. Attorney
Gomez when he interviewed with Margolis and Goodling for Iglesias’s
vacant U.S. Attorney position, after Iglesias had been removed. However,
Margolis told us that he was not aware of any allegations concerning
Iglesias’s management style until after Iglesias was removed because his
knowledge was derived solely from his interview of Gomez. As noted above,
Moschella testified to the House Judiciary Subcommittee that an EARS
report “picked up some management issues, and Mr. Iglesias had delegated
to his first assistant the overall running of the office.” Moschella
also testified that he did not recall whether the EARS report
characterized Iglesias’s delegation of authority to his First Assistant
as “appropriate.” We reviewed both EARS reports and found nothing in
them to substantiate Moschella’s claim that an EARS report referred to
any management issues regarding Iglesias’s delegation of authority. The
2002 EARS report stated “The United States Attorney was well respected
by the client agencies, judiciary, and USAO staff. He provided good
leadership . . . and was appropriately engaged in the 156 operations of
the office.” Similarly, the 2005 EARS report stated that Iglesias was
respected by agencies, the courts, and his staff, and that his First
Assistant “appropriately oversaw the day-to-day work of the senior
management team.” Attorney General Gonzales testified to the Senate
Judiciary Committee on April 19, 2007, that an “absentee landlord”
issue regarding Iglesias was “not in my mind, as I recall, when I
accepted the recommendation [for Iglesias’s removal].” Gonzales also
told us that his recollection was that at the time he approved Iglesias’s
removal, the only criticism of which he was aware came from Senator
Domenici, and he was not aware at that time of any concern about
over-delegation of authority by Iglesias to his First Assistant. Both
McNulty and Mercer testified to Congress that they did not know the basis
for the al
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