Like other Presidential appointees, United States Attorneys can be removed by the President for any reason or for no reason, as long as it is not an illegal or improper reason. In the past, U.S. Attorneys normally were not replaced except in cases of misconduct or when there was a change in Administrations. Prior to the events described in this report, the Department of Justice had never removed a group of U.S. Attorneys at one time because of alleged performance issues. The way the Department handled the removal of nine U.S. Attorneys in 2006, and the after-the-fact reasons proffered for the removals of this group, resulted in significant controversy, concerns that the removals were undertaken for improper political purposes, and allegations that the reasons proffered by the Department for the removals were not accurate.200
We therefore investigated in detail how each of the nine U.S. Attorneys was selected for removal and the process used to remove them. In addition, we examined the accuracy of the public statements and congressional testimony by Department officials justifying the removals.
We concluded that the process the Department used to select the U.S. Attorneys for removal was fundamentally flawed, and the oversight and implementation of the removal process by the Department’s most senior leaders was seriously lacking. In particular, we found that Attorney General Alberto Gonzales and Deputy Attorney General Paul McNulty failed to adequately supervise the U.S. Attorney selection and removal process, and they were remarkably unengaged in the process. Instead, Chief of Staff to the Attorney General Kyle Sampson, with very little input from other Department officials, designed, selected, and implemented the removal process, with little supervision or oversight. In addition, after the removals became public the statements provided by the Attorney General and other Department officials about the reasons for the removals were inconsistent, misleading, and inaccurate in many respects.
The most serious allegations that arose were that the U.S. Attorneys were removed based on improper political factors, including to affect the way they handled certain voter fraud or public corruption investigations and prosecutions. Our investigation found significant evidence that political partisan considerations were an important factor in the removal of several of the U.S. Attorneys. The most troubling example was David Iglesias, the U.S. Attorney in New Mexico. We concluded that complaints from New Mexico Republican politicians and party activists about Iglesias’s handling of voter fraud and public corruption cases caused his removal, and that the Department removed Iglesias without any inquiry into his handling of the cases.
However, we were unable to fully develop the facts regarding the removal of Iglesias and several other U.S. Attorneys because of the refusal by certain key witnesses to be interviewed by us, as well as by the White House’s decision not to provide internal White House documents to us. Therefore, we recommend that counsel specially appointed by the Attorney General work with us to conduct further investigation and ultimately to determine whether the totality of the evidence demonstrates that any criminal offense was committed.
In this chapter, we first provide our analysis of the process used by the Department to remove the U.S. Attorneys. We then provide our findings concerning the conduct of each of the senior Department officials most involved in the removals, including an assessment of the accuracy of their statements explaining the removals.
- Removal Process
- Oversight of the Process
- Implementation of the Removal Plan
- Reasons for the Removals of Individual U.S. Attorneys
- Notification to the U.S. Attorneys
- White House Involvement in the Removal Process
- The Attorney General’s Interim Appointment Authority
- The Conduct of Senior Department Officials
- Alberto Gonzales
- Gonzales’s Statements at the March 13 Press Conference
- Gonzales’s Conversation with Goodling
- Paul McNulty
- Kyle Sampson
- Misleading Statements to the White House
- Misleading Statements to Congress
- Misleading Department Officials
- Monica Goodling
- David Margolis
- Michael Elston
- William Moschella
Shortly after the 2004 Presidential election, White House Counsel Harriet Miers raised with Sampson the idea of seeking resignations from all 93 U.S. Attorneys. Sampson, who at the time was Counsel to the Attorney General, told Miers he thought that it was not a good idea to ask for the resignations of all U.S. Attorneys. Sampson suggested as an alternative that the White House replace a much smaller number of U.S. Attorneys when their 4-year terms expired.
As noted, U.S. Attorneys are appointed for a term of 4 years. Typically, however, they remain in office beyond the expiration of their terms. Sampson wrote in a January 2005 e-mail to a White House official that “the vast majority of U.S. Attorneys, 80-85 percent, I would guess, are doing a great job, are loyal Bushies, etc., etc.,” and he proposed developing a plan to remove approximately 15 to 20% of “underperforming” U.S. Attorneys.
Sampson discussed this proposal with Gonzales when Gonzales was White House Counsel. After he became the Attorney General in February 2005, Gonzales authorized Sampson to proceed with a review to identify those “underperforming” U.S. Attorneys who should be removed. While both Sampson and Gonzales told us and stated in their congressional testimony that the President can remove U.S. Attorneys for any reason or for no reason, it appears that the original plan was to evaluate the performance of each U.S. Attorney and make recommendations to the White House as to who should be removed based upon that assessment.
We found that Gonzales delegated the entire project to Sampson and provided little direction or supervision. 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. However, Gonzales acknowledged to us that he did not discuss with Sampson how to evaluate the U.S. Attorneys or which factors to consider. We found that Gonzales eventually approved the removals of a group of U.S. Attorneys without inquiring about the process Sampson used to select them for removal, or why each name was on Sampson’s removal list. Gonzales also did not know who Sampson had consulted with or what these individuals had said about each of the U.S. Attorneys identified for removal. Instead, Gonzales told us he “assumed” that Sampson engaged in an evaluation process, that the resulting recommendations were based on performance, and that the recommendations reflected the consensus of senior managers in the Department. Each of those assumptions was faulty.
Gonzales also said he had little recollection of being briefed about Sampson’s review process as it progressed over a year and a half. He claimed to us and to Congress an extraordinary lack of recollection about the entire removal process. In his most remarkable claim, he testified that he did not remember the meeting in his conference room on November 27, 2006, when the plan was finalized and he approved the removals of the U.S. Attorneys, even though this important meeting occurred only a few months prior to his testimony.
This was not a minor personnel matter that should have been hard to remember. Rather, it related to an unprecedented removal of a group of high-level Presidential appointees, which Sampson and others recognized would result in significant controversy. Nonetheless, Gonzales conceded that he exercised virtually no oversight of the project, and his claim to have very little recollection of his role in the process is extraordinary and difficult to accept.
We also found that Deputy Attorney General McNulty had little involvement in or oversight of the removal process, despite his role as the immediate supervisor of all U.S. Attorneys. McNulty was not even made aware of the removal plan until the fall of 2006. When McNulty learned about the plan, he thought it was a bad idea. However, he deferred to Sampson and did not raise his concerns with regard to the plan itself or, except in a couple of cases, the evaluation of specific U.S. Attorneys to be removed. Rather, he distanced himself from the project, both while it was ongoing and after it was implemented.
Moreover, we found that there was virtually no communication between Attorney General Gonzales and Deputy Attorney General McNulty about this important matter. Even when McNulty learned about the plan in the fall of 2006 (more than a year after Gonzales and Sampson initiated the removal process), he did not discuss any of his concerns about the plan with Sampson or Gonzales.
In addition, as discussed in the chapter on Carol Lam, the U.S. Attorney for the Southern District of California, in the summer of 2006 Gonzales and Sampson suggested a plan to address concerns they had with Lam’s prosecutive decisions in gun and immigration cases, and asked the Deputy Attorney General’s Office to execute the plan. Yet, McNulty and his staff did not implement the plan, and the Attorney General and his staff never followed up with the Deputy Attorney General about the outcome of the plan before Lam was removed.
After the U.S. Attorney removals, poor communication persisted between Gonzales and McNulty. For example, Attorney General Gonzales testified before Congress on January 17, 2007, that all the U.S. Attorneys were removed for performance reasons. However, Deputy Attorney General McNulty testified before another congressional panel less than 3 weeks later that H.E. “Bud” Cummins III, the U.S. Attorney for the Eastern District of Arkansas, was removed to provide a position for Tim Griffin, the Deputy Director of Political Affairs at the White House. Gonzales was upset by McNulty’s testimony because, he told us, up to that point he believed that Cummins had been removed for poor performance. However, according to both Gonzales and McNulty, they never discussed Cummins’s removal or McNulty’s testimony.
We found no evidence that Gonzales, McNulty, or anyone else in the Department carefully evaluated the basis for each U.S. Attorney’s removal or attempted to ensure that there were no improper political reasons for the removals.
Sampson was primarily responsible for creating the plan, selecting the U.S. Attorneys to be removed, and implementing the plan. He said he consulted with Department officials in informal settings to get their “frank assessments” of U.S. Attorneys, and Sampson described himself as the “aggregator” of their views. Sampson also testified that he had “no independent basis” for removing any U.S. Attorney and that he relied on other Department officials, such as McNulty, Executive Office for U.S. Attorneys (EOUSA) Directors Mary Beth Buchanan and Michael Battle, and Associate Deputy Attorney General David Margolis to make recommendations about who should be removed. He said, “[i]n my mind, they were the Department officials who would have reason to make informed judgments about who might be added to such a list.”
This claim was misleading. Neither Sampson nor anyone else in the Department ever engaged in a systematic assessment of the performance of U.S. Attorneys to determine who was underperforming and should be replaced. Instead, Sampson’s evaluation process was casual, ad hoc, and anecdotal, and he did not develop any consensus from Department officials about which U.S. Attorneys should be removed.
For example, when Sampson asked Margolis for his input in early 2005, Margolis recommended that Kevin Ryan, Margaret Chiara, and Dunn Lampton from the Southern District of Mississippi should be considered for removal because of performance issues. He also suggested the names of about eight other U.S. Attorneys that deserved a “closer look.” After that, Margolis – the long-term career Department official with the most knowledge about U.S. Attorney matters – had little input into the process, except in November 2006 when Sampson read him a list of names of U.S. Attorneys who would be removed. EOUSA Director Battle received an initial inquiry from Monica Goodling in the fall of 2005 about whether he had concerns about any U.S. Attorneys, but he was not consulted again about the performance of any U.S. Attorney as part of Sampson’s process. Sampson even acknowledged to us that he did not make it clear to some of the people he consulted about the purpose for asking what they thought about particular U.S. Attorneys.
Sampson’s process for documenting the assessments he received of U.S. Attorneys was similarly arbitrary, disorganized, and unsystematic. He said he kept a chart listing all the names of the U.S. Attorneys on which he made notes based on conversations he had with others. Sampson said he would keep the annotated chart until it became “dog-eared” and then he would throw it away and start over. While Sampson said he sometimes made notes during his conversations with other Department officials, a lot of the information he gleaned from others he “just remembered.” Sampson described the discussions he had with Department officials about U.S. Attorneys as “largely an oral exercise” with “some really rough tracking.” Sampson did not keep any of these lists with his notes, and as a result we were forced to rely on Sampson’s vague and conflicting memories of the reasons for the removals of the U.S. Attorneys.
Neither Sampson nor anyone else involved in the removal process reviewed the performance evaluations of U.S. Attorneys’ Offices conducted by EOUSA’s Evaluation and Review Staff (EARS), except for the evaluations of Ryan’s office. Yet, Sampson told Miers and later told congressional staff that the selection of U.S. Attorneys to be removed was based in part on the results of EARS evaluations.
While Presidential appointees can be removed by the President at will and do not have the notice and due process protections afforded civil service employees, Sampson was supposed to determine which U.S. Attorneys should be removed based on an evaluation of their performance. Sampson told us that the removal plan was in accord with the management theory that removing a percentage of underperforming employees constitutes good management. However, if the purpose was to remove U.S. Attorneys who were underperforming, one would have expected Sampson to engage in a more systematic assessment of the U.S. Attorneys’ performance, including a review of all EARS evaluations and direct and forthright conversations with senior officials in the best positions to assess the performance of U.S. Attorneys. None of that occurred.
In addition, neither Sampson nor anyone else in the Department asked several of the removed U.S. Attorneys for an explanation about the complaints that allegedly justified their removal. As a consequence, the telephone calls from Battle to the U.S. Attorneys telling them to resign were stunning to most of them. It is not surprising that the removals led to criticism from the U.S. Attorneys when the Department later stated publicly that they were removed for performance-related reasons after they had been told otherwise.
Moreover, as discussed in more detail in the chapters on the individual U.S. Attorneys, we found conflicting testimony about the reasons each U.S. Attorney was recommended for removal. In some cases, neither Sampson nor any other Department official acknowledged recommending that the U.S. Attorney be placed on the removal list. In other cases, the Department’s senior leaders did not even know why Sampson placed the U.S. Attorney on the list.
Sampson’s repeated assertion that “underperformance” was the decisive factor in the removal process was misleading. In fact, Sampson acknowledged that he considered whether a particular U.S. Attorney identified for removal had strong support from their home-state elected Republican officials. According to Sampson, a U.S. Attorney was considered for removal not merely if he was “mediocre,” but if he was perceived as both mediocre and lacking political support. Conversely, Sampson acknowledged deleting from his removal list the names of several U.S. Attorneys whom he considered “mediocre” because he believed they had the political support of their home-state Senators and he did not think the Administration would want to risk a fight with the Senators over their removal.
While U.S. Attorneys are Presidential appointees who may be dismissed for any reason or for no reason, Department leaders failed to ensure that the removals were not undertaken for improper reasons. We believe that removing U.S. Attorneys based on their lack of political support could affect the integrity and independence of the Department’s prosecutive decisions and the public’s confidence that such decisions are insulated from political considerations. U.S. Attorneys should make their prosecutive decisions based on the Department’s priorities, the law, and the facts of each case, not on a fear of being removed if they lose political support.
We recognize that U.S. Attorneys are selected in part based on the recommendations of state and federal political officials. But once they assume office, U.S. Attorneys should leave politics behind and make their prosecutive decisions divorced from partisan political considerations. For Department officials to recommend the removal of U.S. Attorneys even in part because they do or do not have political support undermines the public’s confidence that Department of Justice prosecutive decisions are based on the facts and the law and not on political considerations.
In short, we believe that senior Department officials – particularly the Attorney General and the Deputy Attorney – abdicated their responsibility to safeguard the integrity and independence of the Department by failing to ensure that the removal of U.S. Attorneys was not based on improper political considerations.
In Chapters Four through Twelve, we analyzed the reasons proffered by Department officials for the removal of each U.S. Attorney. Those chapters demonstrate how flawed the removal process was, and the evidence in those chapters also contradicts the Department’s initial claims that U.S. Attorneys were removed for performance reasons.
In January 2006, Missouri U.S. Attorney Todd Graves was the first U.S. Attorney told to resign. As described in detail in Chapter Four, while our investigation into Graves’s removal was hindered by the refusal of Goodling and key officials in the White House to be interviewed, the evidence showed that the primary reason for Graves’s removal was complaints from the staff of Missouri Senator Christopher S. “Kit” Bond. Bond’s staff urged the White House Counsel’s Office to remove Graves because he had declined to intervene in a conflict between Senator Bond’s staff and the staff of Graves’s brother (a Republican Congressman from Missouri). Thus, it appears that Graves was told to resign because of a political dispute among Missouri politicians, not because of an objective assessment of his performance as U.S. Attorney.
Yet, we found that no one in the Department accepted responsibility for the decision to remove Graves. Each senior official we interviewed claimed that others must have made the decision. EOUSA Director Battle, who placed the call telling Graves to resign, said he did so at the direction of Goodling, and that Goodling did not provide him with the reasons for Graves’s removal. Goodling stated in her congressional testimony that she would have instructed Battle to make the call to Graves only at Sampson’s direction. Sampson said that he had no recollection of the matter, that he believed Goodling had handled it, and that he assumed Graves’s removal was based on a finding of misconduct by Margolis. Margolis told us there was no misconduct finding against Graves and that he played no role in Graves’s removal.
In addition, according to Sampson and Gonzales, it is not clear whether anyone consulted with the Attorney General about Graves’s removal. Gonzales told us he did not remember being told why Graves was asked to resign, although he said “can’t imagine it didn’t happen.” He said, “I’m sure I was told and I don’t remember.”
In June 2006, Arkansas U.S. Attorney Bud Cummins was the second U.S. Attorney told to resign. Contrary to Gonzales’s initial statement that the U.S. Attorneys had been removed after an evaluation showed they were underperforming, Cummins was not removed for any performance reasons. While Sampson stated that he thought Cummins was “mediocre,” Sampson never assessed Cummins’s performance and later agreed with McNulty’s testimony to the Senate Judiciary Committee that Cummins was not removed for performance reasons. Rather, the evidence shows that the main reason for Cummins’s removal was to provide a position for former White House official Tim Griffin.
The other seven U.S. Attorneys were all told to resign on December 7, 2006. The most controversial case was the removal of New Mexico U.S. Attorney David Iglesias. As discussed in Chapter Six, we were unable to uncover all the facts pertaining to his removal because of the refusal by key witnesses to be interviewed, including Rove, Miers, Goodling, New Mexico Senator Pete Domenici, and Domenici’s Chief of Staff. As a result, we believe important gaps remain in the evidence regarding Iglesias’s removal as U.S. Attorney.
However, the evidence we uncovered showed that Iglesias was removed because of complaints to the Department and the White House by Senator Domenici and other New Mexico Republican political officials and party activists about Iglesias’s handling of voter fraud and public corruption cases in the New Mexico. We concluded that the other reasons proffered by the Department after Iglesias’s removal – that he was an “absentee landlord,” that he delegated too much authority to his First Assistant, and that he was an underperformer – were after-the-fact rationalizations that did not actually contribute to his removal.
We also found that the Department never investigated the complaints about Iglesias’s decisions on voter fraud or public corruption cases, or even asked Iglesias about them. Rather, based upon the complaints about Iglesias and Senator Domenici’s “loss of confidence” in him, Sampson placed Iglesias on the removal list. By accepting complaints from New Mexico political officials as a basis for Iglesias’s removal without investigating their validity, we believe Department leaders abdicated their responsibility to ensure that prosecutorial decisions would be based on the law, the evidence, and Department policy, rather than political pressure related to the handling of specific cases.
With regard to Nevada U.S. Attorney Daniel Bogden, as with Graves, we were unable to identify the person responsible for recommending that he be placed on the removal list. Bogden first appeared on the September 2006 removal list, shortly after Sampson received vociferous complaints from the head of the Department’s Obscenity Prosecution Task Force that Bogden would not assign a prosecutor to a Task Force obscenity case. Yet, neither Sampson nor any other senior Department official asked Bogden for his response to this complaint. No one inquired about competing resource needs in Bogden’s district, his view of the strength of the obscenity case, or his offer to provide assistance to the Task Force with office space, grand jury time, secretarial support, and prosecution advice.
It also appears that some Department officials believed that voter fraud was an issue in Nevada. However, no one complained about Bogden’s handling of any allegations of voter fraud, and we found no evidence to support any speculation that Bogden’s removal related to any voter fraud issues.
Department officials testified and told us that Bogden was considered to be a “mediocre” U.S. Attorney and lacked energy and leadership. Yet, we found no evidence that Department managers ever raised concerns about Bogden’s performance with him before he was removed, and they also did not ask Department officials who would likely be most knowledgeable about Bogden’s performance, such as Battle or Margolis, before placing Bogden on the removal list.
Moreover, except for Goodling, no one involved in the removals said they recommended that Bogden be removed, and Goodling denied that her recommendation was the cause of his removal. While Sampson acknowledged that he must have physically placed Bogden’s name on the list, Sampson denied that he made the decision to do so and said that he did not remember who made the recommendation. Attorney General Gonzales stated that he did not know why Bogden was removed.
Sampson also acknowledged to us that there may have been other “mediocre” U.S. Attorneys whose performance was worse than Bogden’s, but they were not removed because they had the right political connections. This admission is another example of the consideration of political factors in the removal process by the Department.
The reason for the removal of John McKay, the U.S. Attorney for the Western District of Washington, was difficult to determine. McKay was included on Sampson’s first removal list in March 2005 during a controversy about his handling of voter fraud allegations in connection with the contested 2004 Washington State gubernatorial election. However, Sampson stated that he did not believe he placed McKay’s name on this removal list because of McKay’s handling of voter fraud allegations, and none of the other Department officials we interviewed said they recalled hearing any concerns about the way McKay handled voter fraud allegations related to the election.
Sampson took McKay’s name off the next removal list in January 2006, after Deputy Attorney General James Comey spoke highly of McKay’s performance. Sampson subsequently placed McKay back on the list in September 2006. McKay told us that White House Counsel Miers and Deputy White House Counsel William Kelley told him at a meeting in August 2006 – a few weeks before McKay’s name reappeared on the removal list – that Washington State Republicans were displeased with his handling of voter fraud complaints. Because Miers and Kelley, as well as Rove, declined to cooperate with our investigation, and because we were denied access to internal White House documents, we cannot rule out the possibility that McKay’s handling of voter fraud complaints played a part in the decision to remove him from office.
Based on the available evidence, however, we believe that the main reason McKay’s name was placed back on the list in September 2006 was his clash with Deputy Attorney General McNulty over the LInX information-sharing program, which McKay zealously advocated. Sampson told us that McNulty was irritated by McKay’s August 30, 2006, letter urging McNulty to adopt LInX as the Department’s sole information-sharing program. McKay’s letter was signed by 17 U.S. Attorneys in addition to McKay and was disseminated both inside and outside the Department.
However, McNulty told us that he did not instruct Sampson to put McKay on the removal list and that he was prepared to work with McKay to resolve the information-sharing issue. While McNulty said he did not initiate McKay’s removal, he also stated that he did not object when he saw McKay’s name on the removal list because he had questions about McKay’s judgment in light of the way McKay handled the LInX matter.
With regard to Arizona U.S. Attorney Paul Charlton, we found no evidence, as some speculated, that Charlton was removed because of his office’s investigation and prosecution of an Arizona Congressman. Rather, we found that the Department was displeased with Charlton’s implementation of a policy in his district that required that interrogations be tape recorded. Charlton’s unilateral action in implementing the policy, without consulting Department leaders and in direct opposition to the FBI’s policies, was counterproductive and inappropriate. Yet, the Deputy Attorney General’s Office and Charlton agreed to address the issue by considering a pilot taping program. Moreover, after the dispute about the taping policy, which occurred in February 2006, Charlton was not included on Sampson’s next removal list.
We concluded that the most significant factor in Charlton’s removal was his actions in a death penalty case. Charlton persistently opposed the Department’s decision to seek the death penalty in a homicide case, and he irritated Department leaders by seeking a meeting with the Attorney General to urge him to reconsider his decision. We are troubled that Department officials considered Charlton’s actions in the death penalty case, including requesting a meeting with the Attorney General, to be inappropriate. We do not believe his actions were insubordinate or that they justified his removal.
With regard to Carol Lam, the U.S. Attorney for the Southern District of California, we also found no evidence to support speculation that Lam was removed in retaliation for her prosecution of certain public corruption cases. Rather, she was placed on the removal lists because of the Department’s concerns about the low number of gun and immigration prosecutions undertaken by her office. These concerns were raised in the EARS evaluation of Lam’s office in 2004, and Department officials expressed these concerns to her. In response, Lam argued to the Department that the low number of gun prosecutions resulted from various factors in her district, including strong state gun laws and effective state and local law enforcement of gun laws. With regard to immigration cases, Lam explained that her office decided to prosecute the more serious offenders with charges bringing longer sentences, and that it took more resources to investigate and prosecute these types of cases.
These explanations did not persuade Department leaders or assuage their concerns about her prosecutorial priorities. It is the President’s and the Department’s prerogative to remove a U.S. Attorney who they believe is not adhering to their priorities or not adequately pursuing the types of prosecutions that the Department chooses to emphasize. This is true for any U.S. Attorney, even one such as Lam who was described by Margolis as otherwise “outstanding,” “tough,” and “honest,” and who was described in the EARS evaluation as “an effective manager . . . respected by the judiciary, law enforcement agencies, and the USAO staff.”
However, what we found troubling about Lam’s case was that no one examined her response to the concerns about her prosecution of immigration and gun cases, and the Department removed her without implementing the plan outlined by Sampson, at the direction of the Attorney General, to address the Department’s concerns about Lam’s prosecutorial priorities. The plan called for the Deputy Attorney General (or his staff) having “a heart-to-heart” talk with Lam about the urgent need to improve immigration enforcement; working with her to develop a plan to address the problem; and removing her if she “balk[ed]” or otherwise did not perform in a measurable way. Yet, we found no evidence that anyone in the Deputy Attorney General’s office took any of the steps outlined in the plan, or that anyone in the Attorney General’s Office inquired about the outcome of the plan before Lam was removed.
With regard to the remaining two U.S. Attorneys – Margaret Chiara from the Western District of Michigan and Kevin Ryan from the Northern District of California – we found that the Department had reasonable concerns about their performance and management, and that they were removed for those reasons. We concluded that, contrary to Chiara’s claim, she was not removed because of rumors concerning an alleged sexual relationship with a subordinate Assistant U.S. Attorney.
The evidence was clear that Ryan was removed because of concerns about his performance and the two EARS evaluations that severely criticized his management of the office. In contrast to the process the Department used to decide whether to remove the other U.S. Attorneys, the Department sought an objective evaluation of concerns about Ryan’s performance, and Ryan was given an opportunity to respond to those concerns. At the end of the process, the Department considered the evaluations and his responses, concluded that Ryan’s office needed a change of leadership, and implemented that change. We found nothing inappropriate with that decision.
We also concluded that the way the U.S. Attorneys were told to resign was poorly handled. EOUSA Director Battle was instructed to inform the U.S. Attorneys to submit their resignations without providing them the reasons for their removals.
According to Sampson, at the November 27, 2006, meeting at which the removal plan was approved, the group discussed whether McNulty should notify the U.S. Attorneys in person while they were in Washington, D.C., for a conference. McNulty said that he did not recall being asked to notify the U.S. Attorneys and said having Battle make the calls was consistent with the notion of keeping the removals “in a lower key.”
We believe a better practice would have been for the Attorney General or the Deputy Attorney General, who was the U.S. Attorneys’ direct supervisor, to personally inform the U.S. Attorneys of their removal. Several of the U.S. Attorneys said they were stunned by Battle’s call and were confused about why they were asked to resign. Moreover, the U.S. Attorneys were told that they were being removed because the Administration wanted to give someone else a chance to serve. That was not true, except in the case of Cummins. Moreover, we found no evidence that the Department had other candidates in mind to replace most of those who were removed. And when some U.S. Attorneys inquired about the reason they were being removed, they received no other response.
The decision not to disclose to the U.S. Attorneys why they were being removed led to speculation by them, and eventually by others, about the true reasons they were being removed, including speculation in some cases that they were removed for improper political reasons. Further, no one adequately considered what would happen once it became known that multiple U.S. Attorneys had been asked to resign at the same time without being told why. McNulty indicated that the working assumption was that the U.S. Attorneys would see it in their best interest to deal with their removals quietly because they would not want to admit they had been fired. However, that assumption failed to account for speculation about the real reasons for their removal, particularly when it became known, as it inevitably would, that seven U.S. Attorneys were removed on the same day. In addition, in light of what Battle told them about the Administration wanting to give someone else a chance to serve, the U.S. Attorneys were understandably angry when Gonzales and McNulty later testified that the removals were based on performance.
It is within the President’s power to remove U.S. Attorneys for any reason or for no reason as long as the removal is not for improper or illegal purposes. However, we believe the better practice would be to ask each of the U.S. Attorneys to address the concerns or complaints related to them and, after evaluating their responses and other information, inform them in a straightforward and professional manner why they were being asked to resign.
While our investigation could not fully determine the role of White House officials in the removals of the U.S. Attorneys, for at least three of the removals, the evidence indicates the White House was more involved than merely approving the removal of Presidential appointees, as Department officials initially stated.
First, with regard to Cummins the evidence shows that the White House sought to give former White House official Griffin a chance to serve as U.S. Attorney, and that both Rove and Miers supported Griffin’s appointment.
Second, as discussed above, we found evidence that the White House may have directed Graves’s removal because of conflicts with Senator Bond’s staff that were unrelated to Graves’s duties as U.S. Attorney. However, no one at the Department questioned the basis for Graves’s removal or attempted to ensure that it was not undertaken for an improper political purpose.
Third, we found evidence that complaints to Rove and others at the White House and the Department by New Mexico Republican political officials and party activists about how Iglesias was handling voter fraud cases and a public corruption case led to Iglesias’s removal.
We recognize that some White House involvement in the removals is not remarkable because U.S. Attorneys are Presidential appointees. However, because Miers, Rove, Deputy White House Counsel Kelley, and Associate White House Counsel Klingler refused to cooperate with our investigation, and because the White House declined to provide internal documents to us, we were unable to determine the role the White House played in these removals.
Nevertheless, the evidence we found shows that Gonzales, McNulty, and other Department officials acquiesced in the replacement of Iglesias and several other U.S. Attorneys without scrutinizing or even questioning the basis for their removals. Moreover, the Department failed to ensure that the removals were not undertaken for an improper political purpose. Instead, after the removals, Gonzales, McNulty, and others simply asserted that the removals were performance-based, which the evidence showed was inaccurate and misleading with regard to several of the U.S. Attorneys.
Another allegation we examined was whether the Department intended to avoid the formal Senate confirmation process by appointing Interim U.S. Attorneys to the vacant positions for an indefinite period of time. A provision contained in the Patriot Reauthorization Act that took effect in March 2006 authorized the Attorney General to appoint an Interim U.S. Attorney until the vacancy was filled by a confirmed presidential appointee. Previously, the Attorney General could appoint an Interim U.S. Attorney for only 120 days.
In mid-September 2006, Sampson e-mailed Miers with a list of “U.S. [Attorneys] We Now Should Consider Pushing Out,” and recommended that the Administration use the Attorney General’s authority to make Interim U.S. Attorney appointments to fill the resulting vacancies in lieu of going through the formal nomination and Senate confirmation process. Sampson wrote: “By not going the PAS [Presidentially Appointed, Senate Confirmed] 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.” We found no record of Miers’s response to this e-mail, and she declined our requests for an interview.
Both Sampson and Gonzales told us that Gonzales opposed Sampson’s idea to bypass the Senate confirmation process using the interim appointment authority, and the evidence shows that Sampson abandoned the idea as a general matter. On November 7, 2006, Sampson forwarded to Elston and McNulty a copy of his proposed plan for the U.S. Attorney removals, and Step 4 of that plan stated that the Department and the White House would “obtain recommendations from Senators and other state political leadership,” and “have [the] President make nominations and work to secure confirmation of U.S. Attorney nominees.”
However, when faced with Arkansas Senator Mark Pryor’s continued opposition to Griffin’s nomination after Cummins resigned in mid-December 2006, Sampson again advocated using the Attorney General’s interim appointment authority to place Griffin in the position indefinitely without Senate confirmation. He wrote in a December 19 e-mail to the White House, “I think we should gum this to death,” and suggested in his e-mail that if either of the Democratic senators from Arkansas would not agree to support Griffin’s nomination the Department could “run out the clock” to the end of the Bush 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’s e-mail also stated that “our guy [Griffin] is in there so the status quo is good for us.”
When questioned about 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.” Gonzales told us he could not recall whether he discussed use of the interim appointment authority in Griffin’s case with Sampson at that time, but said he thought it was a “dumb idea” as a general matter. We found no evidence that Gonzales ever supported this idea, and in fact he pledged to Senator Pryor in a telephone conversation that he would not recommend that the President nominate Griffin if Pryor could not support the nomination. Eventually, Griffin withdrew from consideration for the permanent U.S. Attorney position, and the Department nominated another candidate.
In sum, the evidence shows that Sampson, on his own initiative, advocated using the Attorney General’s authority to appoint an Interim U.S. Attorney to bypass the formal Senate confirmation process, an admittedly “bad idea” that was not supported by Gonzales. However, we believe that Sampson’s suggestion was not simply a ‘bad idea,” it was a bad faith recommendation to keep Griffin in the position without Senate confirmation.
In this section, we assess the actions of each of the Department’s senior leaders who were most involved in the U.S. Attorney removal process, and we also examine the accuracy of their public statements about the removals.
We believe that Attorney General Gonzales bears primary responsibility for the flawed U.S. Attorney removal process and the resulting turmoil that it created. This was not a simple personnel matter that should be delegated to subordinate officials – it was an unprecedented removal of a group of high-level Department officials that was certain to raise concerns if not handled properly. Such an undertaking warranted close supervision by the Attorney General, as well as the Deputy Attorney General. Gonzales did not provide such supervision, nor did he ensure that the Deputy Attorney General provided the necessary oversight.
Gonzales described himself as a delegator and said it was not in his nature to micromanage the “good people” to whom he delegated responsibility. 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 removal process. Yet, Gonzales acknowledged that he did not discuss with Sampson how to evaluate the U.S. Attorneys or what factors to consider. According to Gonzales, while Sampson 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 proposed removals, and Gonzales said he did not know who was “going on and off the list.”
Gonzales also stated that while it was his decision to approve the removals, he did so based on Sampson’s recommendations and what he thought was the consensus of Department leaders. Yet, he said that he never asked Sampson or anyone else how they arrived at their recommendations or why each particular 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 a consensus of senior Department managers.
Even after the removals, Gonzales said he still did not know why certain of the U.S. Attorneys had been removed. For example, Gonzales told us that he had no recollection of being consulted about Graves’s removal. Gonzales also told us he did not recall having any discussions with Sampson about Griffin replacing Cummins, who was the second U.S. Attorney told to resign.
Most remarkably, Gonzales told us he had “no recollection” of the November 27, 2006, meeting in his conference room during which he approved the plan to request the resignations of the U.S. Attorneys on December 7. At the meeting, the other participants discussed the steps necessary to implement the plan. Gonzales was present, received a copy of the 3-page implementation plan, and gave his approval to proceed. Yet, only a few months later Gonzales stated that he did not remember this critical meeting.
While delegation in many matters is understandable given the wide range of matters demanding an Attorney General’s attention, we believe that Gonzales failed to exercise appropriate leadership and supervision throughout this entire process. While he described himself as a delegator who does not micromanage, he allowed a subordinate who had little prosecutorial or managerial experience to design the plan and select for removal Presidentially appointed Department officials with virtually no supervision, oversight, or accountability.
Gonzales failed to take action even in the case of Iglesias where he had notice that partisan politics might be involved in the requests for his removal. Gonzales received three telephone calls from 2005 to 2006 from Senator Domenici raising concerns about Iglesias. During the fall of 2006, Gonzales also discussed with Rove and with the President allegations of voter fraud in New Mexico. Gonzales said he asked Sampson to look into Senator Domenici’s complaints, but he never inquired about the outcome of any review or ensured that the complaints were fairly assessed. Gonzales told us that he would have expected that someone would have looked into the complaints. According to Gonzales, “you can’t have, you know, a member of Congress calling and making an allegation and not checking it out and seeing whether or not there’s anything there to it.” But that is exactly what happened with Domenici’s complaints, and Gonzales failed to ensure that the allegations were examined before Iglesias was removed.
Gonzales also made a series of statements after the removals that we concluded were inaccurate and misleading, as we discuss in the following sections.
On March 13, 2007, Gonzales held a brief press conference concerning the U.S. Attorney removals, partly in an attempt to respond to the perception that the Department was withholding information about the removals. During this press conference, Gonzales made several statements about his own role in the removal process, including that he “was not involved in seeing any memos, was not involved in any discussions about what was going on.” Gonzales also stated, “I never saw documents. We never had a discussion about where things stood.”
As the facts described in Chapter Three demonstrate, these statements were inaccurate and misleading. Sampson had periodically briefed Gonzales about the status of the removal process as it progressed. Moreover, at the meeting in his conference room on November 27, 2006, Gonzales received a copy of the 3-page implementation plan and approved the removal plan. Even if he did not recall the November 27 meeting, it is unclear why Gonzales would claim that he “never had a discussion about where things stood” since he had been briefed by Sampson periodically.
While it is clear that several of Gonzales’s statements at the press conference were untrue, it is difficult to determine whether Gonzales deliberately provided false information. Gonzales stated that prior to the press conference he had not gone back to look at his calendars or other documents to prepare, that the press conference was a hurried reaction to the controversy, and that he simply did not remember the November 27 meeting at which he approved the final removal plan. As noted, we found his alleged failure of memory about a key meeting in his office to remove a group of Presidential appointees extraordinary, no matter how hurriedly the press conference was arranged. More importantly, such inaccurate statements from the Attorney General significantly damaged his credibility and the Department’s credibility in its response to this controversy.
As a general matter, Gonzales repeatedly testified that the removals were not undertaken for an improper or illegal purpose. However, he could not have known whether that was true because he did not ask Sampson why the U. S. Attorneys were being removed. Although it is understandable that the Attorney General would rely on the representations of others in important matters he had delegated to them, in this situation he was aware that political concerns may have motivated at least one of the removals. Political leaders in New Mexico had expressed concerns to him directly about Iglesias regarding his handling of voter fraud and public corruption matters. Yet, he did not question whether improper political considerations had resulted in Iglesias’s or any other U.S. Attorney’s removal.
Another serious allegation regarding the Attorney General’s statements after the removals concerned a conversation he had with Monica Goodling in his office on March 15, 2007. The conversation took place after Congress had indicated to Gonzales that it proposed to subpoena Goodling and others to testify about the removals, and after Gonzales had directed the Department’s Office of Professional Responsibility to investigate the circumstances of the removals. In congressional testimony in April and May 2007, Gonzales repeatedly asserted that out of deference to the ongoing internal investigation he had not discussed the facts of the removals with anyone in the Department.
This turned out to be untrue. When Goodling testified before the House Judiciary Committee on May 23, 2007, pursuant to a grant of immunity, she disclosed her March 15 conversation with Gonzales. Goodling testified that the conversation with Gonzales had made her uncomfortable because she was concerned at the time that she and Gonzales might have to testify about the U.S. Attorney removals at some point. Goodling testified that she was distraught and went to the Attorney General to seek a transfer to another component of the Department. 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 U.S. Attorney removals, and then asked her if she had any reaction to what he said. Goodling said that Gonzales also mentioned that he thought that everybody who was on the removal list was there for performance-related reasons, and Gonzales said he had been upset with McNulty because he thought McNulty wrongly testified that Cummins was removed only to give Griffin a chance to serve. Goodling said that while there was more to her discussion with Gonzales, she could not recall anything further. Goodling also said she did not believe that Gonzales was trying to shape her recollection of events. As noted above, we were not able to interview Goodling about this or other matters.
Gonzales emphatically denied to us that he had tried to influence Goodling’s testimony. He said that Goodling came to his office in an extremely distraught state, saying that she was paralyzed and could not do her work. Gonzales said he asked her why and she said something about having had the same information that Sampson had (referring to information that the White House was involved with the removal process earlier than had been disclosed by the Department). Gonzales said he tried to console Goodling and said that no one intentionally had 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, although he said he did not remember specifically what he told Goodling about the removals. Gonzales told us he could not recall discussing McNulty and Cummins with Goodling, but did not deny that he did.
Gonzales said that Goodling asked for a transfer to another component in the Department, and he told her he would consider her request and assured her that they would get through the current situation. Gonzales said it seemed that Goodling felt better when she left his office.
We do not believe the evidence is sufficient to conclude that Gonzales attempted to influence the recollection of a witness in a pending investigation. Goodling testified that she did not believe Gonzales was trying to shape her recollection of events. Moreover, Gonzales did not seek out Goodling to relay his version of events; rather, she came to see him because she was distraught. In addition, several witnesses confirmed Goodling’s distraught state of mind at the time of her conversation with Gonzales. 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 Goodling.
We believe that Gonzales was, in fact, trying to console Goodling during this meeting. However, even in his attempt to console her, he should not have recounted his recollection of the substantive facts of the matter to Goodling. Regardless of his motive, we question Gonzales’s judgment in recounting what he believed the facts to be with someone whom he knew to be a prospective witness in both a Congressional investigation and an internal Department investigation. We also question why he stated to Congress that he had never discussed the facts of the removals with anyone in the Department, which was not true.
As noted above, we found that Deputy Attorney General McNulty had little involvement in the removal process despite his role as the immediate supervisor of U.S. Attorneys. McNulty was not even informed about the removal plan until mid to late October 2006. McNulty said he was surprised when he learned about the plan, but he did not object to it. McNulty stated that the 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 therefore he deferred to the Office of the Attorney General in the matter.
Yet, like Gonzales, McNulty did not ask questions as to how Sampson came up with the names on the removal list. 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 plan to Sampson or the Attorney General.
We believe the Deputy Attorney General, the second in command of the Department of Justice and the immediate supervisor of the U.S. Attorneys, should have raised his objections forcefully and not been so deferential about such a significant personnel action involving U.S. Attorneys under his supervision.
This is especially true with regard to Iglesias’s removal. As discussed in Chapter Six, Senator Domenici called McNulty in October 2006 to criticize Iglesias’s handling of public corruption cases and told McNulty that Iglesias was “in over his head.” McNulty said he had no specific recollection of discussing Senator Domenici’s telephone call with Gonzales or Sampson, but told us that it is the type of contact he would have passed along to them.
However, like Gonzales, McNulty never investigated the accuracy of Senator Domenici’s complaints, or the possibility that these complaints could be related to partisan political considerations and that Iglesias could have been handling these cases appropriately and in accord with Department policy, the law, and the evidence. Instead, McNulty distanced himself from the decision to remove Iglesias, labeling it a “personnel” matter which he considered outside his “bailiwick.”
Moreover, we also believe McNulty should have disclosed Senator Domenici’s call during his congressional briefing. McNulty said that he did not want to raise Senator Domenici’s involvement because he was “concerned about . . . putting the Senator in a bad light or in a difficult position” and that he wanted to keep the conversation between Domenici and him about Iglesias “confidential . . . [I]t was just a courtesy.” McNulty defended his action by noting that he had disclosed in his briefing generic “congressional concerns” about Iglesias. We disagree and do not believe that Senator Domenici’s calls should have been kept confidential or that the Department owed the Senator any “courtesy” with regard to his complaints about Iglesias, which had led to Iglesias’s removal. Rather, McNulty owed Congress and the public full and accurate testimony regarding the matter, and McNulty failed to provide such testimony as a result of his misguided attempt to shield Senator Domenici from criticism.
We also examined the claim raised by Goodling in her congressional testimony that she believed McNulty had greater knowledge about the history of the White House’s involvement in the removal than McNulty had told Congress. Goodling said she had briefed McNulty in the summer of 2006 about the White House’s involvement in Griffin’s appointment.
McNulty testified to the Senate Judiciary Committee on February 6, 2007, that while he was aware in the summer of 2006 that Griffin was scheduled to replace Cummins, he did not know how Griffin came to the Department’s attention.201 He also stated in his closed briefing of the Senate Judiciary Committee on February 14, 2007, that the removal process began within the Department in September or October 2006. McNulty also said at the briefing that the Department had sent the list to the White House Counsel’s Office in October 2006 and asked if they had any objection to the names, and the White House voiced no objections. In fact, as discussed above, this was not an accurate description of the timing of the removal process or the White House’s role in the process.
Because Goodling declined our request for an interview, we were unable to question her concerning what she told McNulty regarding Griffin or the White House’s involvement in the removal process. However, we concluded that McNulty did not intentionally mislead Congress in his testimony. At the time he testified in February 2007, he was unaware of the White House’s earlier involvement in the removals. He stated what he believed about the process at the time: that the Department came up with the names in the fall of 2006 and the White House did not object. While that was not correct, McNulty did not know that at the time.
We also noted that while Goodling was supposed to accompany McNulty to the closed briefing, McNulty instructed her to remain outside the room because he was concerned that her status as the Department’s White House Liaison would raise questions by the Senators. Goodling testified that she believed McNulty had done so in order to discourage the Senators from asking questions about the White House’s role in the removals. McNulty said his concern at the time was 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. We believe the decision to exclude Goodling was troubling and reflected an inappropriate focus on appearances. Besides Sampson, Goodling was the only other person who had in-depth knowledge about the removals and the level of the White House’s involvement in the process. Had Goodling been present, it is likely that McNulty would not have provided misleading information to the Senate about the timing and substance of the White House’s involvement.
Moreover, although we determined that McNulty did not intentionally mislead Congress, he stated in his testimony to the Senate Judiciary Committee that “we never have and never will” seek to remove a U.S. Attorney to interfere with an ongoing investigation or in retaliation for prosecution. However, McNulty did not question Sampson concerning the basis for the removal recommendations. Especially with respect to Iglesias’s removal, McNulty should have inquired about the reasons for the removals to ensure that they were not improper before providing testimony to Congress implying that he had done so.
As discussed above, Sampson was the person most responsible for creating the removal plan, selecting the U.S. Attorneys to be removed, and implementing the plan. Yet, after the controversy over the removals erupted, Sampson attempted to downplay his role, describing himself as the “aggregator” and denying responsibility for placing several of the U.S. Attorneys on the list.
We concluded that from start to finish Sampson mishandled the removal process. And, as discussed above, he inappropriately advocated bypassing the Senate confirmation process for replacing U.S. Attorneys through a strategy of “gum[ming] this to death” and “run[ning] out the clock” while appearing to act in good faith.
We were also troubled by Sampson’s claims that he did not recall the reasons for many of the removals or who had recommended that certain U.S. Attorneys be removed. For example, while Sampson said he did not place Iglesias on the list at the request of the White House, his recollection on this issue was varying and vague. We question why Sampson could not recall the precise reason why he placed Iglesias on the removal list, given the relatively short passage of time since the incident, and the fact that Iglesias’s name alone was added, for the first time, to the November 2006 list. Moreover, other misleading after-the-fact explanations for why Iglesias was placed on the list caused us to further doubt the candor of Sampson’s explanations. In the end, we question whether Sampson provided us the full story about Iglesias’s placement on the list, as well as the reasons for other U.S. Attorney removals.
As discussed in the sections that follow, we also concluded that Sampson made various misleading statements about the U.S. Attorney removals to the White House, Congress, and other Department officials.
Sampson’s misleading statements about the U.S. Attorney removals began as the selection process was unfolding. He misrepresented to the White House how the selections occurred. In an e-mail to Harriet Miers in January 2006 forwarding a list of names to the White House, Sampson wrote, “I list these folks based on my review” of the EARS evaluations, and “my interviews with officials in the Office of the Attorney General, Office of the Deputy Attorney General, and the Criminal Division.” Sampson thus created the general impression that the EARS evaluations and his “interviews” of senior Department officials, including officials in the Criminal Division, formed the basis of his identification of specific U.S. Attorneys for removal.
However, Sampson admitted to us that he did not remember speaking to anyone in the Criminal Division about the performance of U.S. Attorneys, except “only in the most general terms.” He also acknowledged that he never reviewed any EARS evaluations. He told us that it would have been better if he had stated in the e-mail to Miers that it was based on his understanding of somebody else’s understanding of the reviews of the offices.202 We believe that Sampson’s misleading statements to Miers gave the impression that the Department had engaged in a far more systematic and structured evaluation process to determine which U.S. Attorneys should be removed.
Sampson similarly misled congressional staff in his January 12, 2007, briefing that the removals were based on EARS evaluations. At this meeting, Sampson and Acting Assistant Attorney General for the Office of Legislative Affairs Richard Hertling briefed staff for Senators Patrick Leahy and Dianne Feinstein about the removals. Sampson told the Senators’ staffs that the Department had been engaged in a process to identify underperforming U.S. Attorneys and that the process included a review of the EARS evaluations. The two staff members for the Senators told us that Sampson initially explained that the terminations were based on the EARS evaluations, but backtracked when Feinstein’s counsel pressed him for copies. According to both staff members, Sampson then explained that some of the removals were based on EARS evaluations, and some on other factors such as caseloads and responsiveness to Department policy initiatives.
According to Hertling, who said he knew little about the controversy at the time, Sampson attempted to impress upon the congressional staff that the removals were the result of a process the Department undertook to identify U.S. Attorneys who were the “weakest performers,” and that the process included a review of EARS evaluations. Hertling told us that one of the things that stuck in his mind was Sampson’s “specific reference” to EARS evaluations as a basis for identifying these particular U.S. Attorneys for termination.
However, Sampson claimed to us that he mentioned the EARS evaluations only in connection with Ryan’s removal. He said that he doubted he would have suggested that the other removals were based on the EARS evaluations because “that wouldn’t have been accurate.” Yet, based upon the recollection of the other witnesses at the briefing, including Hertling, we believe that Sampson misled the congressional staff that EARS evaluations played a more significant role in the Department’s decision-making process than they actually did.
Second, Sampson included misleading statements in the Department’s response to a February 8, 2007, letter from several Senators asking for information about the circumstances of Cummins’s resignation and Griffin’s appointment. Sampson, who drafted the response and circulated it in the Department and the White House for comment, had the final sign-off on the language in the response.
The response, which was sent on February 23, 2007, contained three misleading statements. The first was the statement that “it was well-known, as early as December 2004, that Mr. Cummins intended to leave . . . .” As we noted in Chapter Five, we found evidence that in drafting the response Sampson discovered a small news item in a free weekly Arkansas tabloid reporting that Cummins might begin exploring career options before the expiration of President Bush’s second term. However, Cummins told us he did not intend to resign at that time and was not looking for other employment. We also found no evidence that anyone at the Department was aware of the article until February 2007.
The second misleading statement in the Department’s response was that “the decision to have Mr. Griffin replace Mr. Cummins was first contemplated in spring or summer of 2006 [and] the final decision to appoint Mr. Griffin . . . was made on or about December 15 . . .” This statement is directly contradicted by the January 9, 2006, e-mail Sampson sent to Miers in which Griffin is listed as a replacement for Cummins. The second part of the statement, that the final decision to appoint Griffin was made around December 15, is also misleading. As noted in Chapter Five, Sampson informed Goodling on August 18, 2006, that the Attorney General would appoint Griffin Interim U.S. Attorney following Griffin’s return to the Department.
The third misleading statement in the Department’s response 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 Sampson’s e-mail on December 19, 2006, to Associate White House Counsel Christopher 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 explanation unpersuasive and belied by the evidence.
Sampson also misled Department officials and allowed them to mislead others about several aspects of the U.S. Attorney removals.
First, in mid-December 2006 after media reports began questioning the circumstances of Griffin’s appointment, Sampson drafted talking points for the Department’s Office of Public Affairs to use to respond to media inquiries. In these talking points, Sampson wrote that “Griffin was appointed Interim U.S. Attorney because of the timing of Cummins’s resignation.”
In fact, as Sampson knew, Cummins had been removed so that Griffin could take his place. The Department’s talking points left the misleading impression that Griffin was appointed as Interim U.S. Attorney because of the unexpected timing of Cummins’s resignation, when in fact Cummins was told to resign to create a position for Griffin.
Second and more important, Sampson’s failure to disclose what he knew about the White House’s involvement in the removals caused McNulty and Principal Associate Deputy Attorney General William Moschella to provide inaccurate testimony to Congress. Both McNulty and Moschella testified that based on what they knew at the time, the White House was not involved in the removals until October 2006 and at that point became involved only to sign off on the process.
Sampson was present at staff preparation sessions before both McNulty’s and Moschella’s congressional testimony where the group discussed what they should say in their testimony. Several other participants told us that the question about the White House’s involvement was raised during at least one of McNulty’s preparation sessions, and McNulty indicated that he would tell Congress that the White House was involved to sign off on the process because U.S. Attorneys are Presidential appointments. This was a misleading statement about the extent and timing of the White House’s role, which Sampson knew. However, Sampson did not correct McNulty’s mistaken belief or inform him of the full extent of the White House’s involvement.
Consequently, in a closed briefing session on February 14, 2007, McNulty told members of the Senate Judiciary Committee that the U.S. Attorney removal process began within the Department in September or October of 2006, and that the Department sent a list to the White House Counsel’s office in October and asked if they objected to the names. Similarly, Moschella testified incorrectly before a House Judiciary Subcommittee on March 6, 2007, based on what he had learned during the preparation sessions and from McNulty’s testimony, that the process to remove the U.S. Attorneys began in early October 2006 and that the White House eventually became involved in the removals, but only to sign off on the proposal because the U.S. Attorneys were Presidential appointees.
When we interviewed Sampson, he rationalized his not correcting the misimpression left at the preparation sessions by arguing that there were two separate phases of the process – the earlier “thinking” phase and the later “action” phase, and he said he was focused on the later action phase during the preparation sessions. We found Sampson’s testimony on this point not credible. Sampson sent three separate lists of U.S. Attorneys for removal to the White House for consideration before the fall of 2006. We believe that Sampson should have been more forthcoming at the preparation sessions about the White House’s involvement to ensure that McNulty and Moschella were aware of the facts and did not mislead Congress. Sampson’s failure to do so resulted in inaccurate and misleading testimony about a critical aspect of the controversy.
We concluded that Sampson engaged in misconduct by making misleading statements and failing to disclose important information to the White House, members of Congress, congressional staff, and Department officials concerning the reasons for the removals of the U.S. Attorneys and the extent of White House involvement in the removal process.
Because Goodling refused to be interviewed by us, there are potential gaps in our investigation of the reasons for the removal of certain U.S. Attorneys. As the Department’s White House Liaison, Goodling had significant contact with White House officials about Department personnel matters, and Goodling was involved to some extent in the selection of the U.S. Attorneys for removal. For example, it appears that Goodling instructed EOUSA Director Battle to call Graves and direct him to resign. As noted above, she said she did so based on Sampson’s instruction, a claim Sampson denied. Consequently, we were unable to determine how Goodling came to order Graves’s removal, or determine the White House’s role in Graves’s forced resignation.
Based on our investigation, we also found that, like Sampson, Goodling’s failure to fully disclose what she knew about the White House’s involvement in the removals contributed to McNulty’s and Moschella’s inaccurate statements to Congress. Goodling was present for at least part of McNulty’s preparation sessions and his Senate testimony, as well as Moschella’s preparation session where the issue of the White House’s involvement was raised. Both McNulty and Moschella told us that no one at the preparation sessions provided them with all the facts about the White House’s involvement with the removal plan. Like Sampson, Goodling never corrected their misimpressions, and consequently McNulty and Moschella both led Congress to believe the White House was involved later in the process and only to sign off on a list of names, which was not true. However, Goodling did not inform them, or anyone else, that their testimony was incorrect until Sampson’s e-mails surfaced.
In addition, the evidence shows that Goodling was aware that she had been less than forthcoming in failing to disclose the White House’s involvement to other Department officials. For example, when she learned that the Department planned to provide Sampson’s documents to Congress that showed earlier and more substantive involvement by the White House in the removals than Moschella and McNulty had testified to, she became distraught and told Margolis that her career was over because she had the same information as Sampson. As noted above, Goodling also met with Gonzales and, according to Gonzales, indicated that she had the same information that Sampson had, referring to the information about the timing of the White House’s involvement.
We also concluded that Goodling was partly responsible for creating the false impression that Griffin was chosen to replace Cummins because the USAO’s First Assistant was unavailable because she was on maternity leave. This information was provided to Senator Pryor’s office and to Brian Roehrkasse, a Department of Justice spokesperson. Sampson told us that Goodling told Gonzales in December 2006 about the First Assistant being on maternity leave. However, Goodling clearly knew that the First Assistant’s maternity leave had nothing to do with Griffin’s appointment as Interim U.S. Attorney, but she did not correct this misimpression, which was conveyed by the Department to Senator Pryor.
We concluded that Goodling engaged in misconduct by failing to disclose important information and to correct Department officials who were providing what she knew was misleading information to Congress and the public concerning the extent of the White House’s involvement in the U.S. Attorney removal process, and for providing misleading information to Congress and the Department concerning Griffin’s appointment as Interim U.S. Attorney.
We found that Associate Deputy Attorney General Margolis had little involvement in the selection of which U.S. Attorneys to remove, despite his position, experience, and knowledge about many U.S. Attorneys.
In early 2005, Sampson informed Margolis about Miers’s suggestion to replace all U.S. Attorneys, an idea that both Margolis and Sampson considered unwise. Margolis endorsed the idea of replacing weak or mediocre U.S. Attorneys, noting to us that in the past U.S. Attorneys were generally removed only for misconduct or gross incompetence tantamount to misconduct.
At that time, Sampson asked Margolis for his opinion concerning the weakest U.S. Attorneys. Margolis told us that two U.S. Attorneys should be removed on performance grounds – Ryan and Lampton. In addition, Margolis said that at that time he also either recommended Chiara for removal or endorsed her removal. Margolis also gave Sampson the names of approximately eight additional U.S. Attorneys who warranted a closer look, either because of general performance, specific conduct, or both.203
After discussions in 2005, Margolis was not consulted again on which U.S. Attorneys should be removed until November 2006, just before the removal plan was finalized and approved. Margolis was not asked, and did not follow up with Sampson, about what criteria should be considered in determining who should be removed or the evaluation process that should lead to the selections. In addition, although Sampson later claimed that he understood that Margolis regularly reviewed EARS evaluations, Sampson never discussed with Margolis what the evaluations revealed about any of the U.S. Attorneys, except Ryan.
In November 2006, when Sampson advised Margolis about the impending removals, he either showed Margolis 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. Margolis asked Sampson why Ryan and Lampton were not on the removal list, and Sampson responded that he would look into it. Based on Margolis’s and McNulty’s suggestion, Ryan was subsequently added to the list.
However, Margolis told us that he did not think to question Sampson about the six U.S. Attorneys who were on Sampson’s list. Margolis said he was more focused on the names that were omitted and assumed Sampson had valid reasons for the six slated for removal.
Margolis is the senior career attorney in the Department and someone who had significant knowledge about U.S. Attorneys and their performance. He was involved in panel interviews for the selection of most U.S. Attorneys, and as part of his duties handles misconduct allegations involving U.S. Attorneys. He is highly respected within the Department, and his opinion was valued because of his experience and stature.
Yet, prior to the removals, he never questioned Sampson concerning why the specific U.S. Attorneys slated for removal were chosen or what process was used to select them. We believe that under these circumstances – an unprecedented dismissal of a group of U.S. Attorneys at one time allegedly for performance reasons – Margolis should have raised questions about the list and the process used to identify the names to ensure there were no improper reasons and that the Department was following a defensible process for the removals. But Margolis never raised those issues, and instead focused solely on seeking to ensure that Ryan was added to the removal list.
It is noteworthy that while Margolis had endorsed the idea of removing weak U.S. Attorneys, by his own testimony he was struck by the fact that two weak performing U.S. Attorneys he had recommended for removal on performance grounds were not on Sampson’s November 2006 list. Moreover, none of the other eight U.S. Attorneys who he had originally suggested warranted a closer look were included on the list. Instead, Sampson’s removal list contained the names of six other U.S. Attorneys and Margolis did not know the reasons why as to five of them.
We recognize that the decision to remove the U.S. Attorneys was not Margolis’s to make. But given his position, we believe he should have asked Sampson, McNulty, or other senior Department leaders about the removal process. This is particularly true given that this removal of U.S. Attorneys was unprecedented, and it did not appear from the names on Sampson’s list that the U.S. Attorneys Margolis thought were weak had been included.
In his testimony to congressional investigators, Margolis acknowledged that he should have taken additional steps when he learned about the removal plan. Margolis stated:
I should say that I am a bit exasperated by my role here because I’m the only one of all the people involved who knows how to fire a United States Attorney or a Marshal based on experience. And I was not aggressive enough or vigilant enough, and I should have done a number of things, I should have inserted myself. I was too passive, and I’d like to, I think—and I hold myself accountable for this—that if I had stepped in and said something, that maybe this would have been - we would have handled this better . . . . And I’d like to think that I know how far a career guy should go and when he should defer to the political appointees. But in this case, ironically, I think my tentativeness and lack of aggressiveness – which I’m not known for lack of aggressiveness. I think it did my masters a disservice, and I accept that. That does not mean that I’m excluding everybody else from their own responsibility. That’s a different issue.
Margolis added that he had become side-tracked by ensuring that certain U.S. Attorneys such as Ryan were on the removal list, and that he was not vigilant enough in ensuring that no one was removed for an improper reason. Moreover, Margolis said he should have asked for the reasons why each of the U.S. Attorneys was being removed.
We agree. We believe that given Margolis’s experience, position, and stature he was too deferential to others on this important and unprecedented removal of U.S. Attorneys. Had he raised questions, as he acknowledged he should have, the damage to the Department by the fundamentally flawed removal process might have been mitigated.204
One of the most serious allegations stemming from the controversy was that Michael Elston, the Chief of Staff to Deputy Attorney General McNulty, attempted to threaten and intimidate three of the fired U.S. Attorneys in order to keep them from publicly discussing their removals.
As discussed in more detail in Chapter Three, on January 17, 2007, the day preceding Attorney General Gonzales’s testimony before the Senate Judiciary Committee, Elston telephoned McKay and Charlton. According to Elston, McNulty asked him to make the call to let McKay and Charlton know that the Attorney General was not going to testify about who had been removed or the basis for the removals.
According to McKay, Elston began the conversation by stating 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 he believed that Elston was offering him a quid pro quo: “You keep quiet, we won’t say anything.” McKay said he replied to Elston 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.
Charlton told us that he viewed a similar phone call from Elston 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.
Elston denied calling McKay and Charlton in an attempt to threaten them to remain silent, and denied offering them any quid pro quo in exchange for their silence.
Approximately 1 month later, after a Washington Post article quoted Cummins as criticizing the Department for stating that the removals of the U.S. Attorneys were based on their performance, Elston called Cummins. According to Cummins, Elston expressed dismay that the U.S. Attorneys might appear before Congress to testify about their removals, which would force the Department to publicly disclose the reasons for the removals. Cummins subsequently sent an e-mail describing this conversation with Elston to McKay, Charlton, Lam, Bogden, and Iglesias, characterizing it as a threatening call.
Elston disputed Cummins’s characterization of the call. Elston told congressional investigators he believed that Cummins had misinterpreted his remarks, which Elston 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 said he never intended to send Cummins or anyone else a threatening message.
While we understand why McKay, Charlton, and Cummins may have interpreted Elston’s phone calls as a threat, we do not have sufficient evidence to conclude that Elston intended to threaten them. In an interview with a reporter the day before he testified before Congress, and his congressional testimony, Cummins did not characterize Elston’s call as a threat. Elston’s comments appear close to the line, and we do not believe it unreasonable for McKay, Charlton, and Cummins to have reached the conclusions they did. Nevertheless, we do not believe the evidence is sufficient to show that his intent was to threaten or intimidate the three U.S. Attorneys.
Moschella testified before the House Judiciary Committee in March 2007 about the reasons for the removal of each U.S. Attorney. He did not become Principal Associate Deputy Attorney General until October 2006, and we found no evidence that he was consulted about the removals prior to the November 27, 2006, meeting at which the Attorney General approved the removal plan.
As we discuss above, Moschella’s congressional testimony misstated both the timing and the nature of the White House involvement in the removal process.205 However, Moschella did not know that his testimony about the timing or the extent of the White House’s involvement was inaccurate. Moschella only reiterated publicly what he had been told about these issues and what McNulty had previously told the Senate Judiciary Committee. No one at the Department – in particular Sampson and Goodling – informed Moschella that what McNulty said was incorrect. When Moschella subsequently learned about the inaccuracies in his testimony, after Sampson retrieved his e-mails and showed them to Moschella and other Department officials, Moschella was understandably upset and recognized the need to correct the inaccuracies. Under these circumstances, we concluded that Moschella’s inaccurate testimony was not his fault and that he should not be criticized for it.
In sum, we believe that the process used to remove the nine U.S. Attorneys in 2006 was fundamentally flawed. While Presidential appointees can be removed for any reason or for no reason, as long as it is not an illegal or improper reason, Department officials publicly justified the removals as the result of an evaluation that sought to replace underperforming U.S. Attorneys. In fact, we determined that the process implemented largely by Kyle Sampson, Chief of Staff to the Attorney General, was unsystematic and arbitrary, with little oversight by the Attorney General, the Deputy Attorney General, or any other senior Department official. In choosing which U.S. Attorneys to remove, Sampson did not adequately consult with the Department officials most knowledgeable about their performance, or even examine formal evaluations of each U.S. Attorney’s Office, despite his representations to the contrary.
We also determined that the U.S. Attorneys were not given an opportunity to address concerns about their performance or provided the reasons for their removal, which led to widespread speculation about the true reasons for their removal, including that they were removed for improper partisan political reasons. And to make matters worse, after the removals became public the statements and congressional testimony provided by the Attorney General, the Deputy Attorney General, Sampson, and other Department officials about the reasons for the removals were inconsistent, misleading, and inaccurate in many respects.
We believe the primary responsibility for these serious failures rest with senior Department leaders – Attorney General Alberto Gonzales and Deputy Attorney General Paul McNulty – who abdicated their responsibility to adequately oversee the process and to ensure that the reasons for removal of each U.S. Attorney were supportable and not improper. These removals were not a minor personnel matter – they were an unprecedented removal of a group of high-level Department officials that was certain to raise concerns if not handled properly. Yet, neither the Attorney General nor the Deputy Attorney General provided adequate oversight or supervision of this process. We also concluded that Sampson bears significant responsibility for the flawed and arbitrary removal process. Moreover, they and other Department officials are responsible for failing to provide accurate and truthful statements about the removals and their role in the process.
We believe our investigation was able to uncover most of the facts relating to the reasons for the removal of most of the U.S. Attorneys. However, as described in this report, there are gaps in our investigation because of the refusal of certain key witnesses to be interviewed by us, including former White House officials Karl Rove, Harriet Miers, and William Kelley, former Department of Justice White House Liaison Monica Goodling, Senator Pete Domenici, and his Chief of Staff. In addition, the White House would not provide us internal documents related to the removals of the U.S. Attorneys.
The most serious allegation that we were not able to fully investigate related to the removal of David Iglesias, the U.S. Attorney for New Mexico, and the allegation that he was removed to influence voter fraud and public corruption prosecutions. We recommend that a counsel specially appointed by the Attorney General assess the facts we have uncovered, work with us to conduct further investigation, and ultimately determine whether the evidence demonstrates that any criminal offense was committed with regard to the removal of Iglesias or any other U.S. Attorney, or the testimony of any witness related to the U.S. Attorney removals.
The Department’s removal of the U.S. Attorneys and the controversy it created severely damaged the credibility of the Department and raised doubts about the integrity of Department prosecutive decisions. We believe that this investigation, and final resolution of the issues raised in this report, can help restore confidence in the Department by fully describing the serious failures in the process used to remove the U.S. Attorneys and by providing lessons for the Department in how to avoid such failures in the future.
The nine U.S. Attorneys removed in 2006 were: Todd Graves, W.D. Missouri; H.E. “Bud” Cummins, E.D. Arkansas; David Iglesias, D. New Mexico; Daniel Bogden, D. Nevada; Paul Charlton, D. Arizona; John McKay, W.D. Washington; Carol Lam, S.D. California; Margaret Chiara, W.D. Michigan; and Kevin Ryan, N.D. California.
McNulty later clarified this statement in his testimony before the House Subcommittee on the Judiciary on June 21, 2007. He stated that he had known for months that “Cummins was asked to move over so that Mr. Griffin would have a chance.” However, he stated that he did not know exactly how Griffin came to the Department’s attention, and he noted that Goodling said she was not even particularly aware of how he 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.”
However, even that would have been inaccurate because, as we noted in each of the U.S. Attorney chapters, with the exception of Ryan’s March 2006 EARS evaluation (which had not yet taken place), each of the EARS evaluations of the removed U.S. Attorneys was largely positive.
We also recognize, however, that Margolis could not have done anything about the first two removals – Graves and Cummins – because he was neither asked for his opinion nor informed of the removals at the time.
In his testimony before the House Judiciary Subcommittee, Moschella inaccurately testified that Iglesias’s EARS evaluation had criticized him for “delegating to his First Assistant the overall running of the office.” However, as previously noted, Moschella obtained this misimpression from the chart prepared by Goodling for McNulty’s closed briefing of the Senate Judiciary Committee on February 14, 2006, which contained after-the-fact rationalizations for many of the removals. In Iglesias’s case, it contained the notation that Iglesias was “an absentee landlord.” However, the EARS evaluation does not criticize Iglesias; rather it states that the “First Assistant appropriately oversees the day to day work of the USAO’s senior management team . . . .” We concluded that this was an honest mistake by Moschella, attributing the criticism to the EARS report when it was actually contained on the Goodling chart.